Ontario College of Teachers v. Nelson, 2015 ONOCT 63

DISCIPLINE COMMITTEE OF THE ONTARIO COLLEGE OF TEACHERS

Citation: Ontario College of Teachers v Nelson, 2015 ONOCT 63

Date: 2015-10-12

IN THE MATTER OF the Ontario College of Teachers Act, 1996, and the Regulation (Ontario Regulation 437/97) thereunder;

AND IN THE MATTER OF a discipline proceeding against

Peter John Nelson, a member of the Ontario College of Teachers.

PANEL: Wes Vickers, OCT, Chair Thomas (Tom) Potter

Vicki Shannon, OCT

BETWEEN: ) ) Ava Arbuck,

) McCarthy Tétrault LLP, ) for Ontario College of Teachers,

ONTARIO COLLEGE OF TEACHERS ) assisted by Annie Lacroix,

) Law Clerk

• and – )

) Peter John Nelson ) was not present or represented

PETER JOHN NELSON )

(CERTIFICATE #492036) )

) Julie Maciura,

) Steinecke Maciura LeBlanc, ) Independent Legal Counsel ) ) Heard: October 5, 2015

DECISION, REASONS FOR DECISION AND ORDERS

This matter came on for hearing before a panel of the Discipline Committee (the “Committee”) on October 5, 2015 at the Ontario College of Teachers (the “College”) at Toronto.

A Notice of Hearing (Exhibit 1), dated August 28, 2013 was served on Peter John Nelson (the “Member”), requesting his attendance before the Committee on October 30, 2013 to set a date for a hearing, and specifying the charges. The hearing was subsequently set for October 5, 2015.

The Member was not in attendance for the hearing and did not have legal representation.

Counsel for the College submitted an Affidavit of Annie Lacroix (Exhibit 2) affirmed September 23, 2015, to prove that the Member had been informed of the allegations against him, the time and date of the hearing, as well as the penalty being sought. In this affidavit, Ms. Lacroix, a law clerk with McCarthy Tétrault LLP, outlines her communications with the Member and provides proof of service of all required documents. Based on this affidavit, the Committee was satisfied that the Member had been properly served with the Notice of Hearing as well as all disclosure documents, and was aware of the time and date of the hearing and the penalty being sought. The Committee therefore heard this matter in the absence of the Member.

PUBLICATION BAN

In R. v. Nelson (see Exhibit 4), Justice N. Gregson of the Ontario Court of Justice made an order restricting publication pursuant to section 486.4 of the Criminal Code of Canada. The Committee is therefore required to uphold this publication ban. Accordingly, there shall be no publication of any information that might tend to identify the victims or witnesses involved in this matter.

THE ALLEGATIONS

The allegations against the Member in the Notice of Hearing are as follows:

IT IS ALLEGED that the Member is guilty of professional misconduct as defined in subsections 30(2) and 40(1.1) of the Ontario College of Teachers Act, 1996 (the “Act”) in that:

(a) he failed to maintain the standards of the profession, contrary to Ontario Regulation 437/97, subsection 1(5);

(b) he abused a student or students physically, sexually, verbally, psychologically or emotionally, contrary to Ontario Regulation 437/97, subsection 1(7) and/or engaged in sexual abuse of a student or students as defined in section 1 of the Act;

(c) he abused a student or students psychologically or emotionally, contrary to Ontario Regulation 437/97, subsection 1(7.2);

(d) he abused a student or students sexually, contrary to Ontario Regulation 437/97, subsection 1(7.3) and/or engaged in sexual abuse of a student or students as defined in section 1 of the Act;

(e) he failed to comply with the Education Act, Revised Statutes of Ontario, 1990, chapter E.2, and specifically subsection 264(1) thereof or the Regulations made under that Act, contrary to Ontario Regulation 437/97, subsection 1(15);

(f) he contravened a law, the contravention of which is relevant to the member’s suitability to hold a certificate of qualification and registration, contrary to Ontario Regulation 437/97, subsection 1(16);

(g) he contravened a law, the contravention of which may cause a student to be put at or to remain at risk, contrary to Ontario Regulation 437/97, subsection 1(17);

(h) he committed acts that, having regard to all the circumstances, would reasonably be regarded by members as disgraceful, dishonourable or unprofessional, contrary to Ontario Regulation 437/97, subsection 1(18); and

(i) he engaged in conduct unbecoming a member, contrary to Ontario Regulation 437/97, subsection 1(19).

PARTICULARS OF THESE ALLEGATIONS ARE AS FOLLOWS:

1. Peter John Nelson is a member of the Ontario College of Teachers.

2. From about September 2006 to about November 2012, the Member was employed by the Rainbow District School Board as a [XXX] teacher.

3. During the period September 1993 to June 1998, the Member had sexual contact with “A”, a female under the age of [XXX] years.

4. On or about December 14, 2012, the Member was found guilty of touching for a sexual purpose, contrary to Section 151(a) of the Criminal Code of Canada.

5. During the period of about September 21, 2010 to about June 21, 2011, the Member had sexual contact with “B”, a female under the age of [XXX] years.

6. On or about November 2, 2012, the Member was found guilty of invitation to sexual touching and sexual exploitation, contrary to Sections 152 and 153(a) of the Criminal Code of Canada.

MEMBER’S PLEA

As the Member was not present and did not have legal representation, the Committee proceeded on the basis that the Member denied the allegations set out in the Notice of Hearing. The Chair, on behalf of the Member, entered a plea of not guilty to the allegations.

THE EVIDENCE

College Counsel entered into evidence the Registered Member Information for Peter John Nelson (Exhibit 3), which indicates that the Member was a member of the College at the time of the alleged events in relation to “B”. When interpreting section 1 of the Ontario College of Teachers Act, 1996, the Committee determined that the Member’s conduct in relation to “A” falls within the definition of sexual abuse, specifically, subsections (b) and (c) of the definition.

The College also entered into evidence a Brief of Court Documents - Her Majesty the Queen v. Peter John Nelson (Exhibit 4), which contains the following documents:

1. Victim “A” Incident – 1993 to 1998

a. Information and Appearances;

b. Order to Comply with Sex Offender Information Registration Act;

c. Prohibition Order;

d. Probation Order; and

e. Guilty Plea and Reasons for Sentence of the Honourable Justice N. Gregson.

2. Victim “B” Incident – 2010 to 2011

a. Information and Appearances;

b. Prohibition Order;

c. Probation Order; and

d. Guilty Plea and Reasons for Sentence of the Honourable Justice N. Gregson.

The evidence presented in Exhibit 4 confirms that on November 2, 2012, in the Ontario Court of Justice, the Member was found guilty of invitation to sexual touching and sexual interference in relation to “B”, contrary to sections 152 and 151(a) of the Criminal Code of Canada. The Member was sentenced to 12 months of incarceration for each conviction, to be served concurrently, followed by two 24 month probationary orders to be served concurrently.

Exhibit 4 further confirms that on December 14, 2012 the Member was found guilty of sexual interference in relation to “A”, contrary to section 151(a) of the Criminal Code of Canada. The Member was sentenced to 12 months less one day of incarceration, which was to be served consecutively with the sentence in relation to “B” described above, followed by three years’ probation.

In addition, a mandatory weapons prohibition, a [XXX], a section 161 order pursuant to the Criminal Code of Canada, and a SOIRA order were imposed.

SUBMISSIONS ON FINDING

College Counsel described the Member’s criminal activity, as described in the Brief of Court Documents, in detail and submitted that the Member’s case was an egregious case of sexual abuse involving the premeditated sexual touching of two young females for whom the Member was in a position of trust. According to College Counsel, the Member’s conduct, as detailed in the record of the criminal proceedings (see Exhibit 4) and the resultant criminal convictions, provided a sufficient basis to justify a finding of professional misconduct under all of the heads of misconduct alleged in the Notice of Hearing. The Member had legal representation during his criminal proceedings.

DECISION

Having considered the evidence, onus and standard of proof, and the submissions made by Counsel for the College, the Committee finds that the facts support a finding of professional misconduct. In particular, the Committee finds that the Member committed acts of professional misconduct as alleged, contrary to Ontario Regulation 437/97, subsections 1(5), 1(7) [pre-2008 amendment], 1(7.2), 1(7.3), 1(15), 1(16), 1(17), 1(18) and 1(19).

REASONS FOR DECISION

In accordance with the law of evidence and Rule 13.03 of the Rules of Procedure of the Discipline Committee and of the Fitness to Practise Committee (the “Committee’s Rules”), inter alia, the Committee accepts the certified copy of the Court Information as proof, in this case, that the Member committed the criminal offences outlined therein. The Member was found guilty and convicted of multiple criminal offences before a Canadian Court, no appeal has been taken, and the time for an appeal has expired.

In addition, pursuant to Rule 13.04 of the Committee’s Rules, the Committee admits as ancillary to the certified copy of the Court Information, the findings of fact contained in the related decision before the Ontario Court of Justice involving the Member. The Committee further admits as incidental to the certified copy of the Court Information, transcripts of the proceedings at which the conviction occurred, for the purposes of explaining the finding of guilt.

Based on the evidence contained within the Brief of Court Documents, the College has proven, on a balance of probabilities, that in 2011 the Member engaged in sexual touching of “B”, a young female for whom he was in a position of trust. The Member was charged with sexual assault contrary to section 271 of the Criminal Code of Canada, invitation to sexual touching contrary to section 152 of the Criminal Code, and sexual interference contrary to section 151(a) of the Criminal Code, in relation to “B”. On November 2, 2012 the Member pled guilty to the charges of invitation to sexual touching and sexual interference. He was sentenced to 12 months of incarceration for each conviction, to be served concurrently, followed by two 24 month probation orders to be served concurrently.

The College has also proven, on a balance of probabilities, that between September 1993 and June 1998 the Member engaged in sexual touching of “A”, another young female for whom he was in a position of trust. The Member was charged with four counts of sexual interference contrary to section 151(a) of the Criminal Code, and one count of sexual assault contrary to section 271 of the Criminal Code, in relation to “A”. On December 14, 2012 the Member pled guilty to one charge of sexual interference. This criminal conviction arose out of a police investigation into the Member’s criminal activities. The Member was sentenced to 12 months less one day of incarceration, to be served consecutively to the previous sentence in relation to “B” described above, followed by three years’ probation.

The Committee finds that the Member’s conduct was egregious. The Member abused his position of trust and authority in the gravest manner with vulnerable children. Accordingly, the Committee finds that the Member’s multiple, repeated instances of sexual touching of two young girls for whom he was in a position of trust constitute acts of professional misconduct contrary to Ontario Regulation 437/97, subsections 1(5), 1(7) [pre-2008 amendment], 1(7.2), 1(7.3), 1(15), 1(16), 1(17), 1(18) and 1(19).

SUBMISSIONS ON PENALTY

Counsel for the College submitted that revocation of the Member’s Certificate of Qualification and Registration, and publication with name are appropriate penalties considering the gravity of the Member’s conduct. According to College Counsel, this is an egregious case of sexual abuse, where the Member demonstrated a complete disregard for the wellbeing of two young girls through his repeated targeting of young and vulnerable children. The Member exploited his position of trust and authority. Revocation is appropriate in such serious matters as this.

College Counsel further submitted that publication with the name of the Member is warranted in this case. Publication with the name of the Member serves as a general deterrent to the profession. College Counsel added that the Committee’s denunciation of the Member’s conduct through the publication of his name demonstrates to the public that acts of professional misconduct attract serious consequences. Moreover, publication with the Member’s name is important because it informs the public and other members of the profession that matters before the Committee are resolved in an open and transparent manner.

College Counsel referred the Committee to three cases involving criminal convictions for sexual or physical abuse: Ontario College of Teachers v. Maheux, 2014 LNONCTD 53, Ontario College of Teachers v. Jennings, 2015 LNONCTD 14 and Ontario College of Teachers v. Piatnitsa, 2015 LNONCTD 34. College Counsel submitted that these cases were similar to the Member’s case and that revocation and publication with name were ordered in those circumstances.

PENALTY DECISION

The Committee makes the following order as to penalty:

1. The Registrar of the Ontario College of Teachers is directed to revoke the Certificate of Qualification and Registration of the Member; and

2. There shall be publication of the finding and order of the Committee, in summary form, with the name of the Member in the official publication of the College Professionally Speaking/Pour parler profession.

REASONS FOR PENALTY

The Committee finds that revocation of the Member’s Certificate of Qualification and Registration is appropriate in this case. The Member’s conduct towards two vulnerable, young children was abhorrent, reprehensible and predatory in nature. The offences reflected a pattern of behaviour that spanned a total of five years with “A” and a year and a half with “B”. The victim impact statements (see Exhibit 4), demonstrate the deep psychological and emotional damage that still afflicts the Member’s victims and their families today. The Member’s multiple, repeated acts of sexual misconduct warrant an order of the Committee’s most severe penalty available: revocation. Not only has the Member’s conduct had a grave impact on his victims, but it has also jeopardized the public’s trust in the teaching profession. Accordingly, the Member is no longer entitled to be a member of the teaching profession.

The Committee further finds that publication with the Member’s name in Professionally Speaking/Pour parler profession is warranted. Publication with the name of the Member identifies to the profession the serious nature of the Member’s misconduct and the consequences of such behaviour. Publication with the Member’s name will serve as a general deterrent by reminding the profession that such behaviour is not tolerated. Moreover, publishing the Member’s name ensures the transparency of the discipline process and reassures the public that the College acts decisively when matters of this nature are brought to its attention. The Committee finds that in keeping with its mandate, publication with name serves to notify the public that this Member is no longer a member of the teaching profession.

The Committee is satisfied that the finding and the penalty protect the public interest and uphold the standards of the teaching profession.

Dated: October 12, 2015

______________________________ Wes Vickers, OCT

Chair, Discipline Panel ______________________________ Thomas (Tom) Potter Member, Discipline Panel

Vicki Shannon, OCT

Member, Discipline Panel