Ontario College of Teachers v French, 2016 ONOCT 16

DISCIPLINE COMMITTEE OF THE ONTARIO COLLEGE OF TEACHERS

Citation: Ontario College of Teachers v French, 2016 ONOCT 16

Date: 2016-05-11

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

Victor Damien French, OCT, a member of the Ontario College of Teachers.

PANEL: Irene Cheung, OCT, Chair

Jean-Luc Bernard, OCT

Wes Vickers, OCT

BETWEEN: ) Ava Arbuck,

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

ONTARIO COLLEGE OF TEACHERS ) assisted by Duane Crocker,

) Law Clerk

– and – )

VICTOR DAMIEN FRENCH ) Victor Damien French,

(CERTIFICATE #206416) ) Self-represented )

) Erica Richler,

) Steinecke Maciura LeBlanc, ) Independent Legal Counsel

) ) Heard: April 26, 2016

DECISION, REASONS FOR DECISION AND ORDER

This matter came on for hearing before a panel of the Discipline Committee (the “Committee”) on April 26, 2016 at the Ontario College of Teachers (the “College”) at Toronto.

A Notice of Hearing dated November 16, 2012 (Exhibit 1) was served on Victor Damien French (the “Member”), requesting his presence on November 29, 2012 to set a date for hearing, and specifying the charges. The hearing was subsequently set for April 26 and 27, 2016.

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

THE ALLEGATIONS

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

IT IS ALLEGED that Victor Damien French 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 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;

(c) 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);

(d) 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

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

STATEMENT OF UNCONTESTED FACTS

Counsel for the College advised the Committee that an agreement had been reached on the facts and introduced a Statement of Uncontested Facts and Plea of No Contest (Exhibit 2), which provides as follows:

1. Victor Damien French is a member of the Ontario College of Teachers. Attached hereto and marked as Exhibit “A” is a copy of the Member’s Registered Information.

2. At all material times, the Member was employed by the London District Catholic School Board as a [XXX] teacher at [XXX] (the “School”) in London.

Interactions with Colleague “A”

3. At all material times, “A” was a colleague (“Colleague A”) of the Member’s at the School.

4. Colleague A had worked well with the Member for approximately 15 years at the School. During the 2009-2010 school year, the Member spent a lot of time in Colleague A’s office, which made her feel uncomfortable. Colleague A did not tell the Member that she felt uncomfortable by his presence in her office.

5. In front of students in Colleague A’s office and in the halls, the Member sometimes rubbed Colleague A’s arms and back, and pinched her sides. When Colleague A told the Member to stop, the Member said he could not help it.

6. On or about May 19, 2010, Colleague A was in her office with Student 1, a [XXX]year-old female student at the School, when the Member came into the office. Student 1 asked the Member to stand beside Colleague A so that Student 1 could take a photo of the two of them for her scrapbook.

7. Student 1 watched as the Member put his hand around Colleague A’s waist and pinched her side. Colleague A told the Member not to touch her. The Member said he was trying to tickle her. As the Member was leaving the office, he attempted to kiss Colleague A goodbye. This gesture made Student 1 uncomfortable and she challenged the Member about his actions. In response, the Member laughed and made a kiss sound directed at Student 1 as he left the office.

8. The day after these incidents, Colleague A asked the Member to attend her office to discuss serious student issues. When the Member arrived, Student 1 and another student, Student 2, were present. Student 1 confronted the Member regarding his actions on the previous day. The Member became angry. He screamed and yelled at the students that he had been joking and they did not know his intentions. His response frightened the students and Colleague A.

9. If the Member were to testify, he would say that he attempted to apologize to the students and to Colleague A the following day.

Student 2

10. During the 2009-2010 academic year, Student 2 was a [XXX]-year-old female student at the School.

11. One day Student 2 was upset. The Member took her into the [XXX] and sat her down. He touched her hand as he told her that she was a special, independent woman. This interaction made Student 2 feel uncomfortable.

Student 3

12. During the 2009-2010 academic year, Student 3 was a [XXX]-year-old female student at the School.

13. On one occasion when Student 3 was doing her homework in Colleague A’s office, the Member came in. He walked behind Student 3 and stared at her, looking over her shoulder. Student 3 felt that the Member was looking down her shirt. As she continued to do her work, the Member told her to zip up her sweater some more, and she did. At a later date, the Member apologized to Student 3 for making her feel uncomfortable.

Student 4

14. During the 2009-2010 academic year, Student 4 was an [XXX]-year-old female student at the School.

15. Early in the spring of 2010, Student 4 and the Member were in the hallway and Student 4 made a comment about [XXX]. The Member teased her by saying she was a “naughty girl” and tapped her buttock. Student 4 felt uncomfortable. If the Member were to testify, he would say that he has no specific recollection of this incident.

PLEA OF NO CONTEST

16. By this document, the Member admits, for the purposes of this proceeding only, the truth of the facts and the exhibits referred to in the paragraphs above (the “Uncontested Facts”).

17. The Member hereby acknowledges that the Uncontested Facts constitute conduct which is professional misconduct, and pleads no contest to the allegations of professional misconduct against him being more particularly breaches of Ontario Regulation 437/97 subsections 1(5), 1(7.3), 1(15), 1(18), 1(19). The Member also acknowledges that he engaged in sexual abuse of students of a nature defined in Sections 1 and 40(1.1) of the Act.

18. By this document the Member states that:

(a) he understands fully the nature of the allegations against him;

(b) he understands that by signing this document he is consenting to the evidence as set out in the Uncontested Facts being presented to the Discipline Committee;

(c) he understands that by pleading no contest to the allegations, he is waiving the right to require the College to otherwise prove the case against him and the right to have a hearing;

(d) he understands that the Committee can accept the Uncontested Facts as correct, and can accept that those facts constitute professional misconduct;

(e) he understands that depending on the penalty ordered by the Discipline Committee, the decision of the Committee and a summary of its reasons, including reference to his name, may be published in the official publication of the College;

(f) he understands that any agreement between counsel for the College and himself with respect to the penalty proposed does not bind the Discipline Committee;

(g) he understands and acknowledges that he is executing this Agreement voluntarily, unequivocally, and without the advice of legal counsel.

19. The Member provides this plea of no contest pursuant to Rule 3.02 of the Rules of Procedure of the Discipline Committee and of the Fitness to Practise Committee under protection of the Evidence Act, R.S.O. 1990, chapter E. 23, for the purpose of this proceeding under the Ontario College of Teachers Act 1996, chapter 12, and for no other purpose. The Member’s plea of no contest does not constitute an admission by the Member as to the facts or findings in any other civil, criminal or administrative proceeding.

20. In light of the Uncontested Facts and circumstances, the Ontario College of Teachers and the Member submit that the Discipline Committee find the Member guilty of professional misconduct.

DECISION

Having considered the Statement of Uncontested Facts and Plea of No Contest, 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(7.3), 1(15), 1(18) and 1(19) and that the Member engaged in sexual abuse of students of a nature defined in sections 1 and 40(1.1) of the Act.

REASONS FOR DECISION

The Member did not contest the facts and exhibits referred to in paragraphs 1 to 15 of the Statement of Uncontested Facts and Plea of No Contest and pleaded no contest to the allegations of professional misconduct against him. He acknowledged and the Committee accepts that the Uncontested Facts constitute conduct which is professional misconduct, contrary to Ontario Regulation 437/97, subsections 1(5), 1(7.3), 1(15), 1(18) and 1(19) and that he engaged in sexual abuse of students of a nature defined in sections 1 and 40(1.1) of the Act.

Paragraphs 4, 5, 7, 8, 11, 13 and 15 of the Statement of Uncontested Facts and Plea of No Contest demonstrate that the Member failed to maintain the standards of the profession, contrary to Ontario Regulation 437/97, subsection 1(5).

Paragraphs 7, 11, 13 and 15 of the Statement of Uncontested Facts and Plea of No Contest demonstrate that the Member abused students sexually, contrary to Ontario Regulation 437/97, subsection 1(7.3) and engaged in sexual abuse of students as defined in sections 1 and 40(1.1) of the Act.

Paragraphs 4, 5, 7, 8, 11, 13 and 15 of the Statement of Uncontested Facts and Plea of No Contest demonstrate that the Member 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).

Paragraphs 4, 5, 7, 8, 11, 13 and 15 of the Statement of Uncontested Facts and Plea of No Contest demonstrate that the Member committed acts that, having regard to all the circumstances, would reasonably be regarded by members of the profession as disgraceful, dishonourable or unprofessional, contrary to Ontario Regulation 437/97, subsection 1(18).

Paragraphs 4, 5, 7, 8, 11, 13 and 15 of the Statement of Uncontested Facts and Plea of No Contest demonstrate that the Member engaged in conduct unbecoming a member, contrary to Ontario Regulation 437/97, subsection 1(19).

JOINT SUBMISSION ON PENALTY

Through a Joint Submission on Penalty (Exhibit 3), College Counsel and the Member jointly submitted that the appropriate penalty to be imposed by the Discipline Committee in this matter would be that the Committee:

1. direct that the Member receive a reprimand, with the fact of the reprimand to be recorded on the Register of the Ontario College of Teachers (the “Register”). Submissions will be made regarding the appropriate form of the reprimand;

2. direct the Registrar of the Ontario College of Teachers (the “Registrar”) to suspend the Certificate of Qualification and Registration of the Member for a period of four months commencing on the date of the Order of the Discipline Committee relating to this matter and the fact of the suspension is to be recorded on the Register.

3. direct the Registrar to impose the following terms, conditions or limitations on the Member’s Certificate of Qualification and Registration, the fact of such terms, conditions or limitations to be recorded on the Register until such time as they are fulfilled:

(a) prior to his return to any position requiring a Certificate of Qualification and Registration, the Member shall enrol in and successfully complete at his own expense, a course of instruction regarding appropriate boundaries and boundary violations issues, and a course on anger management, both courses to be pre-approved by the Registrar, subject to the following conditions:

(i) the Member will provide to the course practitioner(s) approved by the Registrar, a copy of the Statement of Uncontested Facts and Plea of No Contest and Joint Submission on Penalty documents made exhibits at the hearing of this matter, and the Decision, Reasons for Decision and Order of the Discipline Committee;

(ii) upon review of the documents noted at paragraph (i) above, the course practitioner(s) will provide to the Registrar, for approval, a syllabus for the proposed courses which specifically addresses the Discipline Committee’s concerns regarding the Member’s professional misconduct. The syllabus proposed by the course practitioner(s) shall also specify the length of the courses to be undertaken by the Member, and the assignments to be completed by the Member;

(iii) the courses shall be completed no more than 90 days before commencing or returning to a Teaching Position.

(b) within 30 days of his completion of the courses outlined in (a) above, the Member shall provide to the Registrar a written report from each course practitioner:

(i) stating that the Member has successfully completed the course and reporting on the progress of the Member with respect to addressing the outlined goals of the course.

4. direct that there be publication of the finding and order of the Committee in summary form in the official publication of the College, Professionally Speaking/Pour parler profession. The parties have not agreed on whether or not the Member’s name should be included and submissions will be made on that issue.

SUBMISSIONS ON FORM OF REPRIMAND

Submissions of College Counsel

College Counsel submitted that the Member should receive either a written reprimand or, in the alternative, an oral reprimand within 120 days of the date of the Committee’s order. College Counsel argued that in the circumstances of this case where the Member is currently retired and has no plans to return to the profession, the written reprimand would ensure that the Member receives his reprimand. College Counsel further submitted that the written reprimand would ensure that the students and Colleague A would know that the Member had been reprimanded.

Submissions of the Member

The Member was not present and did not provide any submissions with respect to the form of the reprimand.

SUBMISSIONS ON PUBLICATION

Submissions of College Counsel

College Counsel submitted that publication with the name of the Member is warranted in this case. Publication with the name of the Member is one of the most important “tools” that the Committee has with respect to specific deterrence to the Member and general deterrence 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, according to College Counsel, because it informs the public and other members of the profession that matters before the Committee are resolved in an open and transparent manner which maintains public trust in the profession.

College Counsel submitted that the Member’s pattern of misconduct was serious and happened over the course of one academic year. It involved multiple female students and a female colleague. The Member’s conduct and comments toward his colleague occurred in front of students. College Counsel submitted that teachers are role models for students and that the Member’s conduct warranted publication of his name.

College Counsel referred the Committee to one case of sexual misconduct by a member towards students (Ontario College of Teachers v. Park, 2012 LNONCTD 50) and one case of sexual misconduct by a member towards a colleague (Ontario College of Teachers v. Ciraco, 2015 LNONCTD 47). College Counsel submitted that these cases were similar to aspects of the Member’s case and that publication with name was ordered in both instances.

Submissions of the Member

The Member was not present and did not provide any submissions with respect to publication of the Member’s name.

PENALTY DECISION

The Committee accepts the Joint Submission on Penalty presented by the parties and makes an order in accordance with its terms, as set out above.

With respect to the issue of the form in which the reprimand will be delivered, the Committee directs that the Member shall attend in person to receive an oral reprimand at the Offices of the Ontario College of Teachers, 101 Bloor Street West, Toronto, Ontario prior to commencing or returning to any position requiring a Certificate of Qualification and Registration.

With respect to the issue of publication, the Committee directs that there be publication of a summary of the finding and order of the Committee in the official publication of the College, Professionally Speaking/Pour parler profession, with the name of the Member.

REASONS FOR PENALTY DECISION

The Committee accepts the penalty jointly proposed by the parties. The Committee recognizes that, once it ensures that it has jurisdiction to make the order requested, the law confines the Committee’s role to determining whether the proposed penalty is so unreasonable that accepting it would bring the administration of justice or the discipline process into disrepute. The Committee finds that the penalty proposed in the Joint Submission on Penalty is proportionate to the misconduct committed by the Member and is reasonable given the circumstances of this case.

The Committee finds that the Member’s deplorable conduct warrants a reprimand by his peers. The Committee is troubled that the Member’s conduct displayed a pattern of inappropriate behaviour and comments of a sexual nature. Colleague A made it clear in no uncertain terms that the Member’s conduct and comments were unwelcome and told him to stop. Instead of acknowledging that his behaviour was inappropriate and taking responsibility for his actions and comments, the Member’s response was that he “could not help it.” Furthermore, the Member repeatedly made comments to students that were offensive and made the students uncomfortable. The Committee is also concerned with the Member’s angry and aggressive response when Student 1, in the presence of Student 2 and Colleague A, confronted the Member about his conduct towards Colleague A. The Member’s response frightened the students and Colleague A.

The Committee finds that it is appropriate that the Member receive an oral reprimand in person at the Office of the Ontario College of Teachers prior to commencing any position that requires a Certificate of Qualification and Registration. The Committee recognizes the students’ and Colleague A’s desire to have certainty that the Member has received his reprimand. However, the Committee finds that a face-to-face reprimand sends a stronger message to the Member and to the profession. The reprimand will allow the Committee to directly address its concerns with the Member and will serve as a specific deterrent. Recording the fact of the reprimand on the Register will serve as a general deterrent to other members of the profession.

With respect to the College’s alternative submission that the Member receive an oral reprimand in person within 120 days of the date of the order, the Committee finds that it would be more appropriate for the Member to receive his reprimand prior to commencing or returning to any position requiring a Certificate of Qualification and Registration. The oral reprimand will serve as a specific deterrent, but given that the Member is currently retired from the teaching profession, it is appropriate to defer the delivery of the reprimand until such time as the Member intends to return to teaching. The Committee finds that an oral reprimand delivered closer to the Member’s return to teaching would be more effective, as it would provide him with a timely reminder of the Committee’s expectations, before he re-engages with students and colleagues.

Given the nature and duration of the Member’s conduct, the Committee finds that a four month suspension is reasonable and appropriate because the Member’s misconduct was serious and should attract a significant penalty. The four month suspension is also within the appropriate range based on the cases provided by College Counsel.

The Committee finds that the courses of instruction regarding appropriate boundaries and boundary violation issues, and anger management will assist in the rehabilitation of the Member. The coursework will remind the Member of his obligations as a teacher and will help him to make better decisions in any future interactions with students and colleagues.

The Committee 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 name acts as a specific deterrent to the Member as it holds the Member accountable for his actions. It also serves 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 and does not shield its members when matters of this nature are brought to its attention.

The Committee is satisfied that the penalty is appropriate in the circumstances and serves and protects the public interest.

Date: May 11, 2016

Irene Cheung, OCT

Chair, Discipline Panel

Jean-Luc Bernard, OCT

Member, Discipline Panel

Wes Vickers, OCT

Member, Discipline Panel