WARNING: Publication of any information that could identify the victim or a witness in this matter is prohibited pursuant to subsection 486.4(1) of the Criminal Code of Canada.
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
Joseph Anthony Graziano
PANEL: Tom Potter, Chair
Wes Vickers, OCT
Marie-Claude Yaacov
BETWEEN: )
) ) Ava Arbuck,
) McCarthy Tétrault LLP, ) for Ontario College of Teachers,
ONTARIO COLLEGE OF TEACHERS ) assisted by Daniela De Bartolo,
) Law Clerk
- and – )
JOSEPH ANTHONY GRAZIANO ) Joseph Anthony Graziano,
(CERTIFICATE #274327) ) was not present or represented
) Julie Maciura,
) Steinecke Maciura LeBlanc, ) Independent Legal Counsel ) ) Heard: July 7, 2016
DECISION, REASONS FOR DECISION AND ORDER
This matter came on for hearing before a panel of the Discipline Committee (the “Committee”) on July 7, 2016 at the Ontario College of Teachers (the “College”) at Toronto.
A Notice of Hearing (Exhibit 1) dated April 18, 2016 was served on Joseph Anthony Graziano (“Mr. Graziano”) requesting his attendance before the Committee on May 16, 2016 to set a date for a hearing, and specifying the charges. The hearing was subsequently set for July 7, 2016.
Mr. Graziano was not in attendance for the hearing and had no legal representation.
College Counsel submitted an Affidavit of Daniela De Bartolo (Exhibit 2) sworn on July 4, 2016 to prove that Mr. Graziano 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. De Bartolo, a law clerk with McCarthy Tétrault LLP, outlines her communications with Mr. Graziano and provides proof of service of all required documents. Based on this affidavit, the Committee was satisfied that Mr. Graziano had been properly served with the Notice of Hearing and 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 Mr. Graziano.
PUBLICATION BAN
Justice H. Arrell of the Superior Court of Justice issued an order restricting publication pursuant to subsection 486.4(1) of the Criminal Code of Canada (see Exhibit 4 at Tab C). 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 victim or witnesses involved in this matter.
THE ALLEGATIONS
The allegations against the Mr. Graziano in the Notice of Hearing are as follows:
IT IS ALLEGED that Joseph Anthony Graziano 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 psychologically or emotionally, contrary to Ontario Regulation 437/97, subsection 1(7.2);
(c) he abused a student sexually, contrary to Ontario Regulation 437/97, subsection 1(7.3) and/or engaged in sexual abuse of a student as defined in section 1 of the Act;
(d) 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);
(e) 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);
(f) 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);
(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:
At all material times, Joseph Anthony Graziano was a member of the Ontario College of Teachers.
At all material times, the Member was employed by the Hamilton Wentworth Catholic District School Board as a teacher at [XXX] School (the “School”) in Hamilton, Ontario.
At all material times, the Student was a male student at the School.
Between September 1, 2007 and July 1, 2012, the Member:
(a) engaged in inappropriate physical contact with the Student;
(b) engaged in sexual contact with the Student;
(c) engaged in an inappropriate personal relationship with the Student.
- On August 13, 2015, in the Superior Court of Justice, the Member was found guilty of sexual interference, contrary to section 151(a) of the Criminal Code, and sexual exploitation, contrary to section 153(1)(a) of the Criminal Code. He was sentenced on October 29, 2015, to three years’ incarceration.
PLEA TO ALLEGATIONS
As Mr. Graziano was not present and did not have legal representation, the Committee proceeded on the basis that he denied the allegations set out in the Notice of Hearing. The Chair, on behalf of Mr. Graziano, entered a plea of not guilty to the allegations.
JURISDICTION
Subsection 14(5) of the Act provides that, “A person whose certificate of qualification and registration is revoked or cancelled continues to be subject to the jurisdiction of the College for professional misconduct, incompetence or incapacity referable to any time during which the person held, (a) a certificate of qualification and registration under this Act; or (b) an Ontario Teacher’s Certificate or a letter of standing as a teacher under the Education Act.” Therefore, Mr. Graziano continues to be subject to the jurisdiction of the College for the purposes of this matter, despite the fact that his certificate of qualification and registration was revoked on December 16, 2015, because he was a member of the College at the time of the alleged misconduct (both at the time of the alleged misconduct between 2007 and 2012 and at the time of the criminal finding in August 2015).
THE EVIDENCE
College Counsel entered into evidence the Registered Member Information for Joseph Anthony Graziano (Exhibit 3), which indicates that he was a member of the College at the time of the alleged events. The College also entered into evidence the Brief of Court Documents - Her Majesty the Queen v. Joseph Anthony Graziano (Exhibit 4), which contains the following documents:
Certified Copy of Indictment;
Certified Copy of DNA Order, dated October 29, 2015;
Certified Copy of Prohibition Order, dated October 29, 2015;
Certified Copy of Non-Communication Order, dated October 29, 2015;
Transcript of Reasons for Judgment before the Honourable Justice H. Arrell, at Hamilton, dated August 13, 2015; and
Transcript of Reasons for Sentence before the Honourable Justice H. Arrell, at Hamilton dated October 29, 2015.
The evidence presented in Exhibit 4 confirms that on August 13, 2015, Mr. Graziano was found guilty of one count of sexual interference. In particular, Mr. Graziano “did unlawfully for a sexual purpose touch a student, a person under the age of sixteen, directly with a part of his body, contrary to the provisions of Section 151(a) of the Criminal Code of Canada between the 1st day of September 2007 and the 18th day of November, 2009.”
Exhibit 4 also confirms that on August 13, 2015, Mr. Graziano was found guilty of one count of sexual exploitation. In particular, Mr. Graziano, “being in a position of trust or authority towards a student, did for a sexual purpose, touch directly the body of a student, a young person, with a part of his body, contrary to the provisions of Section 153(1)(a) of the Criminal Code of Canada on or between the 1st day of September, 2007 and the 1st day of July, 2012.”
SUBMISSIONS ON FINDING
Submissions of College Counsel
College Counsel presented the Registered Member Information for Joseph Anthony Graziano (Exhibit 3), followed by a review of the Brief of Court Documents (Exhibit 4). Exhibit 4 includes information regarding Mr. Graziano’s criminal case before the Superior Court of Justice, his conviction, and sentencing. Mr. Graziano was found guilty of sexual interference contrary to section 151(a) of the Criminal Code, and sexual exploitation, contrary to section 153(1)(a) of the Criminal Code. He was sentenced on October 29, 2015, to three years’ incarceration. College Counsel submitted that the conduct clearly constituted professional misconduct and Mr. Graziano provided no information to answer the College’s case.
DECISION
Having considered the evidence, onus and standard of proof, and the submissions made by College Counsel, the Committee finds that the facts support a finding of professional misconduct. In particular, the Committee finds that Mr. Graziano committed acts of professional misconduct as alleged, contrary to Ontario Regulation 437/97, subsections 1(5), 1(7.2), 1(7.3), 1(15), 1(16), 1(17), 1(18) and 1(19) and that he engaged in sexual abuse of a student as defined in sections 1 and 40 (1.1) of the Act.
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 Indictment as proof, in this case, that between September 1, 2007 and July 1, 2012, Mr. Graziano engaged in inappropriate physical contact with the Student, engaged in sexual contact with the Student, engaged in an inappropriate personal relationship with the Student and furthermore that Mr. Graziano was convicted of the criminal offences outlined in the certified copy of the Indictment. Mr. Graziano was found guilty and convicted of two 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 Indictment, the findings of fact contained in the Reasons for Judgement involving Mr. Graziano. The Committee further admits as incidental to the certified copy of the Indictment, transcripts of the Reasons for Judgment and Reasons for Sentence, 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 Mr. Graziano was convicted of touching directly the body of a student, a young person, with a part of his body contrary to subsections 151(a) and 153(1)(a) of the Criminal Code of Canada. The Committee notes that Mr. Graziano was found guilty and convicted during his criminal proceedings, where the applicable standard of proof “beyond reasonable doubt” is a much higher standard than the applicable standard of proof “on a balance of probabilities” in College discipline hearings. The Brief of Court Documents provides the Committee with sufficient evidence to make a finding of professional misconduct in this matter.
Mr. Graziano’s conduct was very serious; he abused his position of trust and authority in an egregious manner. Over the course of three years, Mr. Graziano engaged in sexual activities with the Student in his classroom, at his home, and in a recreational trailer that he owned. Mr. Graziano was found by a criminal court to have performed oral sex on the Student and masturbated himself at the same time. These sexual activities occurred on a number of occasions over the three-year period, although there was no penetration or gratuitous violence or threats. The Student was a vulnerable young man, who had experienced a significant loss in his family before he became involved with Mr. Graziano. Justice H. Arrell described the Student as a troubled youth who did not excel at school (see Exhibit 4). The Committee is dismayed by Mr. Graziano’s criminal conduct.
Accordingly, the Committee finds that Mr. Graziano’s actions constitute acts of professional misconduct contrary to Ontario Regulation 437/97, subsections 1(5), 1(7.2), 1(7.3), 1(15), 1(16), 1(17), 1(18) and 1(19), and that he committed sexual abuse of a student as defined in Sections 1 and 40 (1.1) of the Act.
SUBMISSIONS ON PENALTY
Counsel for the College submitted that revocation of Mr. Graziano’s certificate of qualification and registration, and publication with name are appropriate penalties considering the gravity of his conduct. College Counsel further submitted that publication of Mr. Graziano’s name is warranted in this case. Publication with name serves as a specific deterrent to Mr. Graziano and as a general deterrent to the profession. College Counsel added that the Committee’s denunciation of Mr. Graziano’s conduct through the publication of his name demonstrates that members who commit such serious acts of professional misconduct will not be shielded from public scrutiny.
Mr. Graziano’s certificate of qualification and registration was previously revoked on December 16, 2015, by another panel of the Discipline Committee for sexual misconduct related to a different student. College Counsel presented College of Nurses of Ontario v. Mark Dumchin, 2016 ONSC 626 (“Dumchin”) in support of her request that the Committee order that Mr. Graziano’s certificate be revoked a second time. In Dumchin, the Divisional Court found that the Discipline panel of the College of Nurses of Ontario had the jurisdiction pursuant to section 14 of its governing statute (which is a continuing jurisdiction provision similar to that in the Ontario College of Teachers Act) to revoke Mr. Dumchin’s certificate of registration even though Mr. Dumchin had previously surrendered his certificate in advance of the discipline hearing. College Counsel submitted that Mr. Graziano’s certificate of qualification of registration could be similarly revoked, even though his certificate had been previously revoked by another panel of the Discipline Committee. According to College Counsel, Mr. Graziano continues to be subject to the Committee’s jurisdiction, including its jurisdiction to order penalty, pursuant to section 14(5) of the Act.
Counsel for the College submitted that Mr. Graziano’s misconduct warrants an order that his certificate be revoked and that the Committee should exercise its jurisdiction given the circumstances of this case. She noted that in the event Mr. Graziano should seek to be reinstated after serving his sentence, both the prior revocation and this revocation of his certificate will appear on the College’s website. This will also serve to inform the Complainant, the public and members of the profession that the College takes its obligation to protect the public seriously and that it has dealt with Mr. Graziano’s misconduct in an open and transparent manner.
PENALTY DECISION
The Committee makes the following order as to penalty:
In accordance with the Ontario College of Teachers Act, 1996 subsection 14(5), “A person whose certificate of qualification and registration is revoked or cancelled continues to be subject to the jurisdiction of the College for professional misconduct, incompetence or incapacity referable to any time during which the person held a certificate of qualification and registration under this Act.” Given the finding of professional misconduct in the current matter, the Registrar of the Ontario College of Teachers is directed to immediately revoke the certificate of qualification and registration of Joseph Anthony Graziano.
There shall 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, with Mr. Graziano’s name.
REASONS FOR PENALTY
The Committee finds that revocation of Mr. Graziano’s certificate of qualification and registration is appropriate in this case. The Committee accepts the submissions of College Counsel in this regard. The penalty order serves as notice to the profession that the consequences of professional misconduct will be dealt with even if a member has previously resigned, retired or has been revoked prior to the hearing.
The Committee finds that Mr. Graziano’s conduct was egregious. He has abused his position of trust and authority in the gravest manner. As indicated in Justice H. Arrell’s Reasons for Sentence, the Student “has suffered and will continue to suffer the repercussions of Mr. Graziano’s disgusting sexual activities with him and the necessary grooming involved.” Mr. Graziano preyed on a vulnerable student who had recently lost his [XXX] and took advantage of the Student’s trust.
The Committee further finds that publication with Mr. Graziano’s name in Professionally Speaking/Pour parler profession is warranted. Publication with his name identifies to the profession the serious nature of the misconduct and the consequences of such behaviour. Publication with name acts as a specific deterrent as it holds Mr. Graziano publicly accountable for his actions. It also serves as a general deterrent by reminding the profession that such behaviour is not tolerated. Moreover, publishing his 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 finding and the penalty protect the public interest and uphold the standards of the teaching profession.
Dated: August 8, 2016
Tom Potter
Chair, Discipline Panel
Wes Vickers, OCT
Member, Discipline Panel
Marie-Claude Yaacov
Member, Discipline Panel