DISCIPLINE COMMITTEE OF THE ONTARIO COLLEGE OF TEACHERS
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
David Michael Cockburn, a member of the Ontario College of Teachers.
PANEL: Tom Potter, Chair
Jean-Luc Bernard, OCT
Ravi Vethamany, OCT
BETWEEN: ) Eli Mogil,
) McCarthy Tétrault LLP,
) for Ontario College of Teachers,
ONTARIO COLLEGE OF TEACHERS ) assisted by Duane Crocker,
) Law Clerk
-and- )
DAVID MICHAEL COCKBURN ) Susan Luft,
(CERTIFICATE # 435683) ) Ontario Secondary School
) Teachers’ Federation,
) for David Michael Cockburn
) Julie Maciura,
) Steinecke Maciura LeBlanc,
) Independent Legal Counsel
) Heard: December 10 and 14, 2015
DECISION AND REASONS FOR DECISION
Per Jean-Luc Bernard and Ravi Vethamany (Majority decision): This matter came on for hearing before a panel of the Discipline Committee (the “Committee”) on December 10, 2015 at the Ontario College of Teachers (the “College”) at Toronto.
A Notice of Hearing (Exhibit 1) dated February 17, 2015 was served on David Michael Cockburn (the “Member”), requesting his presence on March 23, 2015 to set a date for a hearing, and specifying the charges. The hearing was subsequently set for December 10, 2015. The proceedings continued on December 14, 2015.
The Member was in attendance for the hearing and he had legal representation.
ALLEGATIONS
The allegations against the Member in the Notice of Hearing are as follows:
IT IS ALLEGED that David Michael Cockburn 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 verbally, contrary to Ontario Regulation 437/97, subsection 1(7);
(c) he abused a student or students physically, contrary to Ontario Regulation 437/97, subsection 1(7.1);
(d) he abused a student or students psychologically or emotionally, contrary to Ontario Regulation 437/97, subsection 1(7.2);
(e) 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;
(f) 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);
(g) 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
(h) he engaged in conduct unbecoming a member, contrary to Ontario Regulation 437/97, subsection 1(19).
PARTICULARS OF THESE ALLEGATIONS ARE AS FOLLOWS:
David Michael Cockburn is a member of the Ontario College of Teachers.
At all material times, the Member was employed by the District School Board of Niagara (the “Board”) as a teacher at [XXX] School (the “School”).
During the 2011-2012 and 2012-2013 academic years, Student 1 was a female student at the School.
On or about October 12, 2011, the Member hugged and/or kissed Student 1.
In or around February 2013, the Member:
(a) told Student 1, “you’re making me have a hard on in class”;
(b) called Student 1 and another student and/or students “sexy bitches”;
(c) told Student 1 she had a nice “butt”;
(d) told Student 1 that he could not wait for her to graduate;
(e) sent text messages of a personal and/or sexual nature to Student 1;
(f) called Student 1 and made comments of a personal and/or sexual nature.
MEMBER’S PLEA
The Member denied the allegations set out in the Notice of Hearing.
OVERVIEW
David Cockburn is a member of the Ontario College of Teachers who is employed by the District School Board of Niagara as a teacher at [XXX] in [XXX], Ontario. The Member is accused of sexual misconduct and/or sexual abuse, or in the alternative, professional misconduct in the use of electronic communications in his conversations with a female student (Student 1) in the School when she was in Grades [XXX] to [XXX] as well as in relation to texts and one phone call on Friday, February 15, 2013 at around 6 p.m. when she was in Grade [XXX] in response to notes that she had left for him on his classroom desk earlier that day.
The College called three witnesses. Student 1 was the alleged victim witness and Student 2 and Student 3 corroborated her evidence with respect to particulars 5(a)-(b) and 5(e)-(f).
Allegation (c), namely that the Member abused a student or students physically, contrary to Ontario Regulation 437/97, subsection 1(7.1), was withdrawn by the College because Student 1’s testimony with respect to particular 4 was that she could not remember the incident. No other evidence was tendered by the College to prove this allegation.
There was also no evidence tendered in support of particulars 5(c)-(d).
The Member testified in his defence. He denied all of the allegations and specifically denied particulars 5(a)-(b) and 5(e)-(f).
The conflicts in the evidence between the College witnesses and the Member with respect to these issues made credibility the central factor in the determination of this case. Ultimately, the Committee found that the College has not proven the allegations against the Member on a balance of probabilities, and the Committee therefore does not find the Member guilty of professional misconduct.
COLLEGE MOTIONS
Use of a witness screen by Student 1
The Committee permitted Student 1 to testify behind a screen that allowed her not to see the Member, in accordance with Rule 13.06 of the Rules of the Discipline Committee and the Fitness to Practise Committee (the “Committee Rules”).
The Committee formed the opinion that Student 1 was a vulnerable witness who would have difficulty testifying in the presence of the Member for appropriate reasons related to her age, trauma, emotional state or similar cause of vulnerability under sub-rule 1.01(2) because she was a [XXX] -year-old female who was the alleged student victim in the complaint of sexual abuse against a male member.
The Committee also formed the opinion that a witness screen was likely to help Student 1 give complete and accurate testimony or that it was in her best interests under sub-rule 13.06(1) based on the College motion and College Counsel’s submission that Student 1 was worried and anxious about testifying in the presence of the Member.
Defence Counsel argued that the Committee lacked jurisdiction to permit the use of a witness screen because the Committee had not heard evidence on which to base its opinions. The Committee rejected this argument for three main reasons:
(1) Defence Counsel relied on a criminal decision (R. v. M. (P.) (1990), 1990 CanLII 6643 (ON CA), 1 O.R. (3d) 341) but the Criminal Code provides for a higher hurdle to be met before a witness screen may be used than do the Committee Rules. The analogous Criminal Code section 486(2.1) states: “…if the judge or justice is of the opinion that the order is necessary to obtain a full and candid account from the witness of the acts complained of”, which is in contrast to sub-rule 13.06(1) of the Committee Rules which states: “if the Committee is of the opinion that this is likely to help the witness give complete and accurate testimony or that it is in the best interests of the witness…” [underlining added].
(2) Rule 13.06(1)(c) of the Committee Rules gives the Committee discretion to permit a “vulnerable witness” to use a witness screen that is not found in the analogous subsection 18.4(1) of the Ontario Evidence Act or the analogous subsection 486(2.1) of the Criminal Code.
(3) Rules 1.02(1) and 1.02(2) of the Committee Rules, and subsections 23(1) and 25.0.1 of the Statutory Powers and Procedures Act (the “SPPA”) give the Committee broad discretion to liberally interpret its Rules and control its hearing process. Furthermore, Rule 1.02 specifically provides that the Committee Rules shall be construed in a manner that protects the best interests of witnesses.
Defence Counsel also argued that a witness screen would unduly impair the ability of the Member to make full answer and defence. The Committee rejected this argument because Defence Counsel failed to explain why the Member would not be able to make full answer and defence.
Use of prior written statements as memory aids by Student 1, Student 2, and Student 3
The Committee permitted Student 1, Student 2, and Student 3 to use their previous written statements as memory aids in the hearing notwithstanding Defence Counsel’s objections that (1) the memory aids were not created contemporaneously and (2) that the statements used by Student 2 and Student 3 were typed by a third party. The Committee decided that neither of these facts precluded the use of the prior written statements as memory aids.
EVIDENCE
Uncontested Facts
The Member was, at all material times, a male teacher in the School in which Student 1, her [XXX] (Student 2), and her [XXX] (Student 3) were female students.
The Member is qualified as a history, health and physical education and special education teacher and he teaches [XXX] studies.
The Member did not teach Student 1 but he had conversations with her at School when she was in Grades [XXX] to [XXX] and she talked with him occasionally about her social-emotional problems.
On February 14-15, 2013, Student 1 left the Member a Valentine’s Day card which said “you’re sexy and I’m graduating in a few months so you won’t be a teacher for me” (see Exhibit 3) and a Post-It Note that said “you are sexy xoxo” and included her cellphone number (see Exhibit 5). Both were left for the Member on his classroom desk. She also admitted that she had left other notes for the Member, which included song lyrics or poems and another which said “Mr. C rocks”.
On Friday, February 15, 2013, students were absent from School in the afternoon because of teacher professional activities. The Member texted Student 1 after school and asked her if he could call her later and she replied yes. The Member phoned Student 1 at around 6 p.m. on her cellphone. He had a brief conversation with Student 1 and was aware that her [XXX] (Student 2) was listening in on the call. He was not aware that Student 3 was listening in on the call. The call was short. Student 1 ended the call. The Member then texted Student 1 and asked if she was okay.
Two weeks later, the Member and Student 1 ran into each other in the hallway and the member again asked Student 1 if she was okay.
There was no other subsequent contact between the Member and Student 1.
Six weeks later, Student 2 made a complaint to school administration and the Member was sent home with pay. On April 2, 2013, Student 1, Student 2, and Student 3 were interviewed together by their principal and substantially common statements were prepared. Student 1 was later asked to hand write notes which she did, dated April 4, 2013. These statements and notes were used as memory aids in the hearing.
The Member continues to teach at the School.
Contested Evidence
(1) Did the Member, in or around February 2013, tell Student 1 she had a nice butt or that he could not wait to see her graduate?
The Committee received no evidence of particulars 5(c) and (d).
(2) Did the Member make sexual remarks to Student 1 or other students?
Student 1
Student 1 said that her comments to the Member in her card and note were a joke, including giving him her cellphone number (see Exhibits 3 and 5). In cross-examination, she admitted that the card and notes were not normal student teacher communications. She also admitted that she had left other romantic Post-It Notes for the Member.
The Member
The Member testified that he realized that the Valentine’s Day card was from Student 1 once she asked him in front of other named students whether he had received it. He claimed that he had responded that the card was inappropriate.
The Member said that he decided that he needed to be more direct in telling Student 1 to stop when he found the Post-It Notes on his classroom desk on Friday, February 15, 2013.
The Member said that one of the Post-It Notes that he found was a drawing of an erection. This Post-It Note was not entered as evidence because the Member explained that he had not kept it past the following Monday because of its sexual content. Student 1 confirmed in cross-examination that she had seen similar drawings of erections before but she denied that she had been the one to leave them for the Member.
The Member explained that he could not talk with Student 1 at School because students were absent that afternoon because of teacher professional activities. He said that he intended to call Student 1 from School but that the School phone was being used by someone else and he ran out of time. He said that he decided to contact her on her cellphone because he wanted to deal with the issue as soon as possible and did not want to wait until Monday. The Member referenced progressive discipline and said that he decided that he would give Student 1 another warning to stop her behaviour before contacting the principal. The Member acknowledged through his lawyer that in hindsight he should have contacted the principal.
(3) Did the Member exchange personal comments with students using electronic communications?
Student 1
Student 1 said that she received a text from the Member asking if he could call her to talk. She said that she panicked and called her [XXX] (Student 2) for advice. She said that her [XXX] (Student 2) told her to reply yes and to schedule the call in order to receive the call at her [XXX] house which she did. Student 1 said that she was surprised to also find Student 3 at her [XXX] house when she arrived.
The Member
The Member claimed that he texted Student 1 once before the call in order to schedule the phone call and once after the phone call to ensure that Student 1 was okay.
The Member said that he phoned Student 1 on her cellphone once at around 6:00 p.m. on Friday, February 15, 2013. He said that he phoned from his parents’ home phone and that his parents, including his father who is a retired principal, and his 6-year-old daughter were at home. He said that Student 1 told him that her [XXX] (Student 2) was listening to the call and he was reassured that there was a witness to the conversation.
The Member said that the conversation was short and that he told Student 1 to stop leaving romantic notes for him in class because it was inappropriate. He said that he discussed the Valentine’s Day card and the Post-It Note with the drawing of an erection. He said that he told her that he was concerned about the potential impact on a named Grade [XXX] student who had witnessed her actions and that her actions could jeopardize his employment as a teacher.
The Member claimed that Student 1 told him at the end of the phone call that she and her [XXX] (Student 2) had been smoking marijuana. He said he was concerned and that he told Student 1 to be safe and to make good decisions. The Member testified that he sent Student 1 a short text to make sure that she was okay after the call ended.
The Member specifically denied the following particulars in the Notice of Hearing related to the texts and phone call:
- In or around February 2013, the Member:
(a) told Student 1, “you’re making me have a hard on in class”;
(b) called Student 1 and another student and/or students “sexy bitches”;
(e) sent text messages of a personal and/or sexual nature to Student 1;
(f) called Student 1 and made comments of a personal and/or sexual nature.
In cross-examination, College Counsel suggested to the Member that his actions were inconsistent with the following statements found in the College’s Professional Advisories: Professional Misconduct Related to Sexual Abuse and Sexual Misconduct, and Use of Electronic Communication and Social Media:
Teachers, not students, are responsible for respecting professional boundaries.
One way to maintain professionalism is to communicate with students during appropriate times of the day and to avoid private text messages.
Teachers should avoid any remarks of a sexual nature, regardless of the age or any apparent consent of the student.
Teachers should avoid sharing personal information about themselves with students.
The Member asserted that his actions were professional and consistent with the advisories.
Consistent and inconsistent evidence of Student 1, Student 2, and Student 3
Consistent Evidence
Student 1, Student 2, and Student 3 ALL testified that:
(1) The Member told Student 1 “You’re making me have a hard-on in class.” (Student 1 used the word “boner” and Student 2 and Student 3 both used the word “hard-on”);
(2) The Member called Student 1 and Student 2 “sexy bitches”;
(3) The Member had a “creepy” and inappropriate sexual tone of voice;
(4) The cellphone was at full volume and they could all hear the call clearly; and
(5) Student 1 was uncomfortable after the phone call.
Inconsistent Evidence
Student 1, Student 2, and Student 3 were inconsistent in the following parts of their evidence:
(1) Student 1 and her [XXX] (Student 2) said that the cellphone was on the bed and that the call was on speaker phone but Student 3 said that Student 1 held the cellphone in her hand and that the call was not on speakerphone.
(2) Student 2 said that it sounded like the Member was masturbating during the conversation but Student 1 and Student 3 did not say that.
(3) Student 1 admitted in cross-examination that she told the Member that she and her [XXX] (Student 2) were smoking marijuana, but her [XXX] (Student 2) and Student 3 both specifically denied that the statement was made.
(4) Student 1 and Student 2 either denied or could not recall the Member raising the issue of the Valentine’s Day card or other notes during the phone conversation. Student 3, however, agreed that the Member had brought up the issue of the Valentine’s Day card and notes.
(5) Student 1 said that she needed emotional support from her [XXX] (Student 2) after the phone call and texts but Student 2 and Student 3 both said that Student 1 did not want to remain with them after the phone call.
(6) Student 2 waited six weeks to make a complaint, despite the fact that the Member and Student 1 had had virtually no subsequent contact after February 15, 2013. Student 2 made the complaint despite the fact that Student 1 and the Member both testified that their only subsequent contact had been running into each other once in a school hallway at the end of February 2013. The complaint was made on April 2, 2013.
SUBMISSIONS OF COLLEGE COUNSEL
College Counsel submitted that Student 1, Student 2, and Student 3 were credible and emphasized the consistency of their evidence with respect to particulars 5(a)-(b) in the Notice of Hearing:
- In or around February 2013, the Member:
(a) told Student 1, “you’re making me have a hard on in class”;
(b) called Student 1 and another student and/or students “sexy bitches”;
College Counsel submitted that their testimonies constituted clear, cogent and convincing evidence that proved particulars 5(a)-(b) and 5(e)-(f) in the Notice of Hearing.
College Counsel referenced the College’s Professional Advisories: Professional Misconduct Related to Sexual Abuse and Sexual Misconduct, and Use of Electronic Communication and Social Media and three previous Discipline Committee decisions (Ontario College of Teachers v. Daye, 2011 LNONCTD 3, Ontario College of Teachers v. Ferris, 2013 LNONCTD 22, and Ontario College of Teachers v. Handscomb, 2014 LNONCTD 92) to connect particulars 5(a)-(b) and 5(e)-(f) to allegations (a)-(b) and (d)-(h) in the Notice of Hearing.
College Counsel cited Ontario College of Teachers v. Burdett, 2011 LNONCTD 13 and submitted that whether or not Student 1 initiated the communication was irrelevant. College Counsel cited the College’s Professional Advisory: Use of Electronic Communication and Social Media and made the alternative argument that even a one-time error in judgment involving the exchange of comments of a personal nature may lead to a complaint of professional misconduct.
College Counsel submitted that the Member had made sufficient admissions with respect to particulars 5(e)-(f) to prove allegations (g)-(h) in the Notice of Hearing. For example, College Counsel argued in the alternative that the Committee should find that the Member used electronic communications to exchange personal comments, even if the Committee did not find credible the evidence of Student 1, Student 2, and Student 3 that the Member’s remarks were sexual in nature.
SUBMISSIONS OF MEMBER’S COUNSEL
Defence Counsel made three main submissions and cited case law:
(1) The College had not met its burden to prove the allegations in the Notice of Hearing on balance of probabilities with clear, cogent and convincing evidence (Ontario College of Teachers v. Fabel, 2010 LNONCTD 19 at paras. 301-307);
(2) This case requires the Committee to make careful assessments of credibility (Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1951] B.C.J. No. 152 (C.A.) and Re: Pitts and Director of Family Benefits Branch of the Ministry of Community & Social Services (1985), 1985 CanLII 2053 (ON HCJ), 51 O.R. (2d) 302); and
(3) The Committee should find collusion (Ontario College of Teachers v. Mann, 2006 LNONCTD 19; R. v. C.B., 2003 CanLII 32894 (ON CA), [2003] O.J. No. 11 (C.A.); R. v. Griffin, [2013] O.J. No. 6287; and, E.Z. v. M.J., [2013] O.J. No. 489) and give no weight to the evidence of Student 1, Student 2, and Student 3, based on the following uncontested facts:
Student 1, Student 2, and Student 3 were interviewed together on April 2, 2013.
They collaborated on their statements which were typed by the School principal.
Student 2 and Student 3 used this statement as their memory aid in the hearing.
Student 1 wrote the statement that she used as a memory aid in the hearing on April 4, 2013 after the students had already collaborated on their typed statements.
Defence Counsel also argued that Student 1, Student 2, and Student 3 were not credible for the following reasons: Student 1, Student 2, and Student 3 were clear about evidence in their memory aids but unclear about evidence not in their memory aids. Student 1, Student 2, and Student 3 were consistent in their evidence about particulars 5(a) and (b) only because these particulars were included in their memory aids and not because they were being truthful. Student 1, Student 2, and Student 3 all provided the same unqualified opinion that the Member had a creepy, inappropriate, or sexual tone of voice. This opinion was unreasonable given limitations in their opportunity to observe and their lack of qualifications to provide this opinion evidence.
REPLY SUBMISSIONS OF COLLEGE COUNSEL
College Counsel’s main replies were:
(1) The College had proven the allegations in the Notice of Hearing on balance of probabilities with clear, cogent and convincing evidence.
(2) Student 1, Student 2, and Student 3 were credible. College Counsel made reply submissions about the evidence of Student 1, Student 2, and Student 3 with respect to the credibility factors of (a) appearance and demeanour of the witness, (b) opportunity to observe, (c) capacity to remember, (d) probability or reasonability of the evidence, (e) internal inconsistency, (f) external consistency, and (g) interest in outcome that are outlined in Re Pitts and Director of Family Benefits Branch of the Ministry of Community & Social Services (1985), 1985 CanLII 2053 (ON HCJ), 51 O.R. (2d) 302). College Counsel also submitted that the Committee should take judicial notice that teenage girls can discern a sexual tone of voice and therefore the Committee should accept the opinion evidence of Student 1, Student 2, and Student 3 that the Member had a sexual tone of voice.
(3) The Committee should find that there was no collusion in this case for the following reasons: there were noticeable differences in the evidence of Student 1, Student 2, and Student 3 with respect to the credibility factors; Student 1, Student 2, and Student 3 had no recent contact with each other; Student 1 used her own hand written notes as a memory aid; none of the witnesses relied on their notes; and, the cases cited by Defence Counsel (Ontario College of Teachers v. Mann, 2006 LNONCTD 19; R. v. C.B., 2003 CanLII 32894 (ON CA), [2003] O.J. No. 11 (C.A.); R. v. Griffin, [2013] O.J. No. 6287; and, E.Z. v. M.J., [2013] O.J. No. 489) were very different than this case.
DECISION
Onus and Standard of Proof
The College must prove allegations of professional misconduct with clear, cogent and convincing evidence on the balance of probabilities in accordance with F.H. v. McDougall, 2008 SCC 53.
Decision
Counsel for the College requested that the allegation of professional misconduct outlined in paragraph (c) of the Notice of Hearing, namely that the Member contravened subsection 1(7.1) of Ontario Regulation 437/97, be withdrawn. The Committee granted the request.
The allegations of professional misconduct in the Notice of Hearing are dismissed because the Committee finds that the College has not proven the allegations with clear, cogent and convincing evidence on the balance of probabilities.
REASONS FOR DECISION
Credibility
The Committee had to assess the credibility of witnesses in order to resolve the issues in this case. The Committee considered the following factors outlined in Re Pitts and Director of Family Benefits Branch of the Ministry of Community & Social Services (1985), 1985 CanLII 2053 (ON HCJ), 51 O.R. (2d) 302, in assessing the credibility of witnesses:
(a) Appearance and demeanour of the witness;
(b) Opportunity to observe;
(c) Capacity to remember;
(d) Probability or reasonability of the evidence;
(e) Internal Inconsistency;
(f) External consistency; and
(g) Interest in outcome.
The Committee did not consider the above list of factors to be exhaustive or prescriptive. The Committee saw and heard the witnesses and relied on its common sense and experience in assessing credibility rather than a mechanical approach.
The Committee also considered the issue of collusion in this case.
(a) Appearance and demeanour of the witness
Student 1, Student 2, and Student 3
Student 1 appeared calm and composed and was direct in her responses to questions in direct and cross-examination except for the following three responses in which she hesitated and answered in a softer tone of voice:
(1) She had read her notes only once or twice in preparation for the hearing;
(2) She did not have romantic feelings towards the Member; and
(3) The Member had told her that he did not feel the same way about her when they bumped into each other in the hallway after the phone call.
Student 2 appeared casual and cavalier during the hearing. She snickered and laughed after reading her prior written statement and before being posed any questions. She then apologized and said that she often laughs when she gets nervous. She repeatedly snickered in answering questions both in direct and cross-examination. She was argumentative in cross-examination and she was equivocal when cross-examined on whether Student 1 told the Member that they had been smoking marijuana.
Student 3 was consistent and direct in answering questions in direct and cross-examination.
The Member
The Member was consistent and direct in answering questions in direct and cross-examination.
(b) Opportunity to observe
Student 1, Student 2, and Student 3
Student 1 had the opportunity to observe all the events except for inherent limitations of text and cellphone communications. She said she was affected by low self-esteem and social-emotional problems and she cited several examples where her judgement was influenced by others, for example: (1) her boyfriend convinced her that the Member’s interactions with her in School were inappropriate; and (2) she had not wanted to make a complaint but she changed her mind after her [XXX] initiated the complaint to the School six weeks later. Her ability to provide the opinion that the Member had a sexual tone of voice in the cellphone conversation was also challenged during cross-examination.
Student 2’s direct observations were limited to the electronic communications. She was a third party to the conversation but she said that she could clearly hear the conversation. Her ability to provide the opinion that the Member was masturbating during the cellphone conversation was challenged in cross-examination.
Student 2 and Student 3 both admitted in cross-examination that they lacked background knowledge about the Post-It Note depicting the Member with an erection in class that the Member claimed was discussed during the phone conversation.
Student 3 had the opportunity to observe Student 1 leaving her phone number for the Member on the blackboard in his classroom.
Student 3 was listening in as a fourth party but said that she could clearly hear the cellphone conversation. She testified that Student 1 had held the cellphone in her hand at full volume but not on speakerphone.
The abilities of Student 1, Student 2, and Student 3 to provide the opinion that the Member had a sexual tone of voice during the cellphone conversation were challenged in cross-examination.
The Member
The Member had the opportunity to observe his own conduct in this case.
(c) Capacity to remember
Student 1, Student 2, and Student 3
Student 1, Student 2 and Student 3 collaborated when the principal typed their statements in a common interview on April 2, 2013. This occurred before Student 1 handwrote her notes two days later on April 4, 2013 that she used as a memory aid in the hearing.
Student 1, Student 2 and Student 3 read their entire prior written statements as a memory aid in the hearing prior to answering any substantive questions and College Counsel routinely led excerpts from the prior written statements in direct examination.
Student 1 could not remember the events on her birthday that related to the allegation that the Member hugged and/or kissed her, which would have formed the factual foundation for the allegation in paragraph (c) in the Notice of Hearing that the Member abused her physically, contrary to Ontario Regulation 437/97, subsection 1(7.1).
Student 2 admitted in cross-examination that she did not remember when asked whether the phone call from the teacher was initially about school.
The Member
The Member answered only one question with “I do not recall”. He replied in cross-examination that he could not recall anything about Student 1’s birthday. He implied that there was nothing remarkable to remember rather than an inability to remember.
(d) Probability or reasonability of the evidence
Student 1, Student 2, and Student 3
Student 1’s claim that she did not have romantic feelings for the Member was improbable and unreasonable in contrast to her actions. Her claim that the Member tried to establish a sexual relationship with her in School was improbable in contrast to some of her admissions in cross-examination, for example: (1) the Member was never alone with her in School; (2) there were a limited number of conversations with the Member in the School and the texts and one phone call to her cellphone on February 15, 2013 was the only contact outside of the School; (3) the Member texted and phoned her on February 15, 2013 in response to finding romantic notes that she had left for him; and (4) the Member had no contact with her after February 15, 2013 except for one time, two weeks later when they had bumped into each other in the hallway in the preceding six weeks before the complaint was made.
Student 1’s claim that she had not left the Member a Post-It Note with a drawing of an erection was improbable given Student 1’s admission that she had seen similar notes depicting erections.
Student 2’s claim that her [XXX] (Student 1) did not have romantic feelings towards the Member was improbable and unreasonable in contrast to Student 1’s actions.
Student 2’s claim that it sounded like the Member was masturbating during the cellphone conversation was improbable and unreasonable in the circumstances, given that the Member was at his parents’ home at the time of the phone call, and that his parents and daughter were at home. Moreover, Student 2’s evidence in this regard was not corroborated by Student 1 and Student 3 who, at most, testified that the Member’s voice sounded “creepy”.
Student 2’s claim that she reported the Member’s conduct to the guidance counsellor because she was concerned for her [XXX] (Student 1) was implausible given that she had gone out with her [XXX] (Student 3) and left her [XXX] (Student 1) alone immediately after the phone communications and given that there had been no contact between the Member and Student 1 in the month preceding the complaint.
Student 3’s agreement in cross-examination that she guessed that Student 1 had romantic feelings for the Member was probable and reasonable given her observations of Student 1’s actions.
The Member
The Member’s evidence was probable and reasonable and consistent with the physical or direct evidence of the Valentine’s Day card and the romantic notes that Student 1 had left for him on his classroom desk on February 14 and 15, 2013.
(e) Internal Inconsistency
Student 1, Student 2, and Student 3
Student 1’s claim that she did not have romantic feelings for the Member was inconsistent with her actions. She gave him her cellphone number twice. She also gave him the suggestive Valentine’s Day card.
There was no mention of the Member’s alleged comment that thinking about her gave him a hard on in class in Student 1’s hand written notes which were written much closer in time to the event.
Student 1 testified to the following lies or omissions: (1) she lied to the Member during the February 15, 2013 phone conversation that she and her [XXX] (Student 2) had smoked marijuana; (2) she lied to the Member at the end of her cellphone conversation in telling him that they had left her [XXX] house and that they were driving in a car; (3) she allowed her [XXX] (Student 2) to impersonate her in replying to the Member’s texts after the phone call asking her if she was okay; and (4) she lied to the Member telling him that she was spending the night at her [XXX] (Student 2’s) house on February 15, 2013. The Committee does not believe that Student 1 lied to the Member because she was afraid of him, given the notes that she had left for him on the day of or the day before the phone conversation (see Exhibits 3 and 5).
Student 1 was also easily influenced by others. The Committee received evidence that when Student 1 told her boyfriend about some of her interactions with the Member, her boyfriend led her to believe that the Member’s conduct was inappropriate.
Student 2’s evidence was internally inconsistent in that she claimed that she told her [XXX] (Student 1) that the Member was inappropriate in texting her to ask if he could call her but then she told her [XXX] (Student 1) to reply yes in order to schedule the phone call.
Student 3 was internally consistent in her evidence.
The Member
The Member’s evidence was internally consistent.
(f) External Consistency
Student 1, Student 2, and Student 3
The summary of the evidence above notes the consistencies and inconsistencies in the evidence of Student 1, Student 2, and Student 3.
The Member
The Member’s evidence was consistent with the physical or direct evidence of the Valentine’s Day card and the romantic notes that Student 1 had left for him on his classroom desk on February 14 and 15, 2013.
The Member’s evidence with respect to particulars 5(a)-(b) and 5(e)-(f) in the Notice of Hearing contradicted the evidence of Student 1, Student 2 and Student 3.
(g) Interest in Outcome
Student 1, Student 2, and Student 3
Student 1 is the alleged victim in this complaint of sexual abuse against the Member but she did not make the complaint to the School. She testified that she was concerned about how others in the School and the community would perceive her accusations against the Member who was sent home as a result of the complaint. Student 1 did not want to feel like an outcast from her peers since she felt that she already had enough difficulty being accepted at School.
Student 2 had told her [XXX] (Student 1) on Friday, February 15, 2013 that the Member had been inappropriate in sending her a text. Student 2 made the complaint of sexual abuse against the Member to the School six weeks later.
During the hearing, Student 3 distanced herself from the complaint and testified that she was grateful that the complaint did not personally involve her.
Student 1, Student 2, and Student 3 participated in a common interview on April 2, 2013 in which the principal prepared their statements that contained information that formed the basis for particulars 5(a)-(b), and 5(e)-(f).
The Member
The Member is the subject of the allegations of sexual misconduct and sexual abuse.
Findings of Credibility
The Committee did not find Student 1 credible with respect to the contested facts. Her denial of previous romantic feelings towards the Member was improbable and unreasonable. She admitted to a capacity to lie. She had not disclosed to others until she was cross-examined in the hearing that she had left more than one romantic Post-It Note for the Member on the morning of Friday, February 15, 2013. The Committee accepts the Member’s evidence that there was a Post-It note with an erection, as even Student 1 admitted during cross-examination that she had seen that type of Post-It note. The Committee finds that it was probable that a Post-It note with an erection existed, and improbable that someone other than Student 1 would have left Post-It notes for the Member at the same time. The Committee finds that Student 1 may not be willing to admit that she left that type of Post-It note. Her evidence that she was easily influenced by a boyfriend rendered her judgment questionable. The Committee also finds that it would be unlikely for Student 1 not to remember an allegation of physical abuse in comparison with her other testimony and this was another factor in the Committee’s findings that Student 1 was not credible in parts of her evidence.
The Committee did not find Student 2 to be a credible witness. She overstated her ability to observe facts and she offered opinions that were improbable and unreasonable.
The weight of the evidence of Student 1, Student 2, and Student 3 with respect to the texts and phone conversation on Friday, February 15, 2013 was reduced because of the following factors: (1) the witnesses were interviewed together on April 2, 2013; (2) typed and unsigned statements were prepared by the School principal; (3) Student 2 and Student 3 used these statements as memory aids in the hearing; (4) Student 1 prepared the notes that she used as a memory aid in the hearing two days after the common interview; (5) College Counsel had each witness read their entire statement before answering any substantive questions; and (6) College Counsel led each witness in direct examination through material excerpts from their statements.
The Committee finds the Member to be credible. He answered direct and cross-examination questions with the same directness, he was consistent in his evidence, and his evidence was consistent with the physical or direct evidence. The Member also named other potential witnesses to the conversations that he had with Student 1 in School and stated that he called Student 1 from his parents’ home phone.
With respect to the conflicts in the evidence about contested facts, the Committee finds the evidence of the Member more credible than the evidence of Student 1, Student 2, and Student 3.
Findings of Fact
Having weighed the evidence, the Committee finds that the College failed to prove on a balance of probabilities that the Member committed the conduct described in particulars 4 and 5(a)-(f) of the Notice of Hearing.
There was no evidence of particular 4, and allegation (c) relating to subsection 1(7.1) of Ontario Regulation 437/97 in the Notice of Hearing was accordingly withdrawn.
There was also no evidence of particulars 5(c) and (d).
The remaining particulars 5(a), (b), (e) and (f) in the Notice of Hearing were contested.
The Member admitted in direct and cross-examination that he sent Student 1 texts and called her once on her cellphone in response to her leaving him romantic notes. The nature of the conversations and what was said was contested.
The Member testified that he texted Student 1 to schedule the call and then he called Student 1 and told her to stop leaving him notes as a second warning. The Member testified that the call was brief and that he texted Student 1 after she had ended the call quickly in order to make sure that she was okay. The Member testified that his remarks were professional in nature and not personal or sexual in nature.
Student 1, her [XXX] (Student 2), and a third student (Student 3) all testified as to the particulars 5(a), (b), (e) and (f) in the Notice of Hearing, which are:
- In or around February 2013, the Member:
(a) told Student 1, “you’re making me have a hard on in class”;
(b) called Student 1 and another student and/or students “sexy bitches”;
(e) sent text messages of a personal and/or sexual nature to Student 1;
(f) called Student 1 and made comments of a personal and/or sexual nature.
With respect to these particulars, the evidence of the Member was credible whereas the evidence of Student 1, Student 2, and Student 3 was not credible.
Accordingly the Committee finds that particulars 4 and 5(a)-(f) in the Notice of Hearing were not proven by the College on the balance of probabilities.
The Committee therefore decides the main issues and makes the corresponding findings of fact in this case as follows:
(1) Did the Member make sexual remarks to Student 1 or other students?
The Committee finds that the College did not prove this on a balance of probabilities. The Committee finds that the context for his in-School conversation with Student 1 about anal sex was a response to her and another student’s health and physical education question. The Committee finds that his texts and phone call on February 15, 2013 were to stop Student 1 from continuing to leave him romantic notes. The Committee finds that the College did not prove that the member made the statement “you’re making me have a hard on in class” but instead the Committee prefers the Member’s evidence that he rather referred to a Post-It Note which contained a drawing of an erection that he had found on his classroom desk with other notes that had been left for him by Student 1. The Committee finds that Student 1, Student 2, and Student 3’s evidence that he called Student 1 and another student and/or students “sexy bitches” is implausible in the circumstances.
(2) Did the Member exchange personal comments with students using electronic communications?
The Committee finds that the College did not prove on a balance of probabilities that the Member exchanged personal comments with students using electronic communications. The only evidence that the Member exchanged personal comments in his use of electronic communications was the evidence of Student 1, Student 2, or Student 3 and the Committee found that evidence to not be credible. The Committee accepts the Member’s evidence that he sent short texts and had a brief phone conversation with Student 1 on her cellphone in order to tell her for a second time to stop leaving romantic notes for her. The Committee finds that the Member talked about this issue and did not find sufficient evidence to prove that he made comments that were personal in nature.
CONCLUSION
The Committee considered the College’s Professional Advisories: Professional Misconduct Related to Sexual Abuse and Sexual Misconduct, and Use of Electronic Communication and Social Media which are intended to prevent sexual abuse of students and sexual misconduct by providing guidance to members about the legal, ethical and professional boundaries for their behaviour.
The College’s Professional Advisory: Professional Misconduct Related to Sexual Abuse and Sexual Misconduct notes that the Discipline Committee determines whether particular behaviour in each case amounts to professional misconduct.
The Committee determines that the Member’s particular behaviour in this case does not amount to professional misconduct. The Committee finds that that the Member did not commit sexual misconduct or sexual abuse.
The Committee notes that the precedents submitted by College Counsel are applicable to findings that the member exchanged sexual or personal remarks with students, which the Committee did not make in this case. The Member’s evidence that all of his comments were professional and not personal in nature was credible and there is no other credible evidence to support any findings of fact that the member made sexual or personal remarks to students.
Therefore the Committee finds the Member not guilty of professional misconduct.
Date: March 9, 2016
Jean-Luc Bernard, OCT
Member, Discipline Panel
Ravi Vethamany, OCT
Member, Discipline Panel
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
David Michael Cockburn, a member of the Ontario College of Teachers.
MINORITY DECISION
Per Tom Potter (dissenting): I have had the benefit of reading the majority decision in this matter. I do not agree with the finding of the majority that the Member is not guilty of professional misconduct. In my opinion, the Member should be found guilty of professional misconduct in that he failed to maintain the standards of the profession, contrary to subsection 1(5) of Ontario Regulation 437/97, he abused a student or students verbally, contrary to subsection 1(7) of Ontario Regulation 437/97, his conduct was unprofessional, contrary to subsection 1(18) of Ontario Regulation 437/97, and he engaged in conduct unbecoming a member, contrary to subsection 1(19) of Ontario Regulation 437/97.
I agree with the majority that there were credibility issues with the testimonies of Students 1, 2 and 3 in that the manner in which the students were interviewed and in which their statements were prepared was problematic. Nevertheless, all three student witnesses gave consistent evidence that they heard the Member address Students 1 and 2 as “sexy bitches” during the Friday evening phone conversation, and the Member provided insufficient evidence to contradict this evidence. I believe that the Member made this inappropriate comment, on a balance of probabilities, and that this gives rise to a finding of professional misconduct.
The Member also demonstrated poor professional judgment in the way that he claimed to go about employing the “Progressive Discipline Process.” The evidence in this case, including the Member’s own testimony, indicated that he knew that Student 1 was an emotionally vulnerable [XXX] year-old female who was forming an unhealthy attachment to him. Student 1 had left the Member an inappropriate Valentine’s Day card and other notes and the Member testified that he cautioned the student not to repeat this behaviour. On February 15, 2013 the Member testified that he found additional notes and drawings depicting erections which he determined were left for him by Student 1. Nevertheless, the Member did not report this conduct to anyone, including the School administration and the student’s parents, and he claims to have taken it upon himself to employ progressive discipline. The Member also did not document any of the events leading up to, including or subsequent to the phone call on February 15, 2013. This leaves the Member’s intent open to question.
Rather than wait until the next school day to address these issues with the student, the Member decided to text Student 1 in order to set up a telephone conversation with her on the evening of Friday, February 15, 2013. The Member should have involved the School administration instead of personally contacting an adolescent, female student on a Friday evening. The Member’s conduct in this regard is contrary to the Professional Advisory on the Use of Electronic Communication and Social Media dated February 23, 2011. The Member ought to have been aware that his request to speak privately on the phone with Student 1 after school hours was poor judgment and would leave his intent open to question. The Member’s lack of judgment in relation to the February 15, 2013 phone call with Student 1 is alarming.
The Member testified that his intent in phoning Student 1 was to discuss her inappropriate behaviour with her and to put an end to it. He testified that he was aware that Student 2 was listening during the telephone conversation. Even if one were to accept this explanation, I believe that the Member exercised poor judgment in discussing Student 1’s inappropriate behaviour while Student 2 was listening.
Members of the teaching profession are expected to maintain professional boundaries with students at all times. Given Student 1’s vulnerability, the Member risked having her interpret his action as encouraging her romantic interest in him. Members of the profession as well as the public at large might also interpret the Member’s actions in this way. In this instance the Member failed to maintain appropriate professional boundaries.
For these reasons, I believe that the Member’s conduct constituted professional misconduct. He made an inappropriate comment to students by referring to them as “sexy bitches” and he failed to maintain appropriate professional boundaries by phoning an adolescent female student on a Friday evening, when he could have simply waited to address any concerns that he had with her on the next school day.
Date: March 9, 2016
Tom Potter
Chair, Discipline Panel