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
Brian David Pennycook, a member of the Ontario College of Teachers.
PANEL: Wes Vickers, OCT, Chair
Jane Ishibashi
Marie-Claude Yaacov
BETWEEN: ) Ava Arbuck,
) McCarthy Tétrault LLP, ) for Ontario College of Teachers,
ONTARIO COLLEGE OF TEACHERS ) assisted by Annie Lacroix,
) Law Clerk
– and – )
BRIAN DAVID PENNYCOOK ) Brian David Pennycook,
(CERTIFICATE #310685) ) Self-represented )
) Erica Richler,
) Steinecke Maciura LeBlanc, ) Independent Legal Counsel
) ) Heard: January 27, 2016
DECISION, REASONS FOR DECISION AND ORDER
This matter came on for hearing before a panel of the Discipline Committee (the “Committee”) on January 27, 2016 at the Ontario College of Teachers (the “College”) at Toronto.
A Notice of Hearing dated October 28, 2015 (Exhibit 1) was served on Brian David Pennycook (the “Member”), requesting his presence on November 27, 2015 to set a date for hearing, and specifying the charges. The hearing was subsequently set for January 27, 2016.
The Member was not in attendance for the hearing and he did not have legal representation.
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 30(3) 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);
(e) he engaged in conduct unbecoming a member, contrary to Ontario Regulation 437/97, subsection 1(19);
(f) he failed to strive at all times to achieve and maintain the highest degree of professional competence and to uphold the honour, dignity and ethical standards of the teaching profession, contrary to Section 13 of the Regulation made under the Teaching Profession Act (the “TPA Regulation”);
(g) he failed to show consistent justice and consideration in all his relations with pupils, contrary to subsection 14(d) of the TPA Regulation;
(h) he failed to concern himself with the welfare of his pupils while they were under his care, contrary to subsection 14(f) of the TPA Regulation;
(i) he failed to comply with the Education Act, Revised Statutes of Ontario, 1980, chapter 129, and specifically subsection 235(1)(c).
AGREED STATEMENT OF FACTS
Counsel for the College advised the Committee that an agreement had been reached on the facts and introduced an Agreed Statement of Facts and Guilty Plea (Exhibit 2), which provides the following:
Brian David Pennycook is a member of the Ontario College of Teachers. He has held an Ontario Teacher’s Certificate since June 1969. Attached to Exhibit 2 at Tab “A” is a copy of the Ontario College of Teachers Registered Member Information with respect to the Member.
At all material times, the Member was employed by the Thames Valley District School Board (the “Board”) as a secondary teacher at [XXX] Institute (the “School”) in [XXX].
At the material times, Student 1 was a [XXX]-year-old female student at the School.
In or around the 1986-1987 academic year, the Member engaged in a sexual relationship with Student 1.
In March 1987 the Member resigned from the Board. The Member and Student 1 later married and divorced.
GUILTY PLEA
By this document, the Member admits the facts and exhibits referred to in the paragraphs above (the “Admitted Facts”).
The Member hereby acknowledges that the Admitted Facts referred to above constitute conduct which is professional misconduct, and pleads guilty 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), and 1(19), subsection 235(1)(c) of the Education Act, R.S.O. 1980, c. 129, and sections 13, 14(d), and 14(f) of the Regulation made under the Teaching Profession Act. The Member also admits that he engaged in sexual abuse of a student of a nature defined in Sections 1 and 40(1.1) of the Act.
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 Admitted Facts being presented to the Discipline Committee;
(c) he understands that by pleading guilty 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 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.
DECISION
Counsel for the College requested that the allegation of professional misconduct outlined in paragraph (i) of the Notice of Hearing, namely that the Member failed to comply with the Education Act, Revised Statutes of Ontario, 1980, chapter 129, and specifically subsection 235(1)(c) be withdrawn. The Committee granted the request.
Having considered the Agreed Statement of Facts and Guilty Plea, 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 sections 13, 14(d) and 14(f) of the Regulation made under the Teaching Profession Act. The Committee further finds that the Member engaged in sexual abuse of a student of a nature defined in sections 1 and 40(1.1) of the Act.
REASONS FOR DECISION
The Member admitted the truth of the facts and exhibits referred to in paragraphs 1 to 5 of the Agreed Statement of Facts and Guilty Plea and pleaded guilty to the allegations of professional misconduct against him. He acknowledged and the Committee accepts that the Admitted Facts give rise to a finding of professional misconduct.
Paragraph 4 of the Agreed Statement of Facts and Guilty Plea demonstrates 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 sections 13, 14(d) and 14(f) of the Regulation made under the Teaching Profession Act, and that the Member engaged in sexual abuse of a student of a nature defined in sections 1 and 40(1.1) of the Act.
JOINT SUBMISSION ON PENALTY
Through a Joint Submission on Penalty (Exhibit 3), Counsel for the College and Counsel for the Member jointly submitted that the appropriate penalty to be imposed by the Discipline Committee in this matter would be that the Committee:
direct the Registrar of the Ontario College of Teachers to revoke the Certificate of Qualification and Registration of the Member;
direct that there 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.
Submissions of College Counsel
College Counsel urged the Committee to accept the Agreed Statement of Facts and Guilty Plea and Joint Submission on Penalty.
College Counsel referred the Committee to two cases where members engaged in sexual relationships with students: Ontario College of Teachers v. Matejovic, 2012 LNONCTD 43; and Ontario College of Teachers v. Nevins, 2011 LNONCTD 15. College Counsel submitted that these cases were similar to the Member’s case and that revocation and publication with name were ordered in both instances.
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.
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 of the Member and is reasonable given the circumstances of this case.
The Committee finds that revocation is the appropriate penalty given the circumstances of the Member’s case. The Member engaged in a sexual relationship with Student 1. In so doing, the Member abused the authority and trust vested in him in his role as a teacher, without regard for the wellbeing of the student. The Member’s conduct was unacceptable and in conflict with the duty of a teacher to protect students. As a result of his egregious conduct, the Member has forfeited the privilege of holding a teaching certificate and being a member of the teaching profession in Ontario. Revocation, in this case, is proportionate to the Member’s misconduct.
The Committee finds that publication with the Member’s name in Professionally Speaking/Pour parler profession is warranted in this case, as agreed to by the parties. Publication with name will inform and reassure the public and the profession that such egregious conduct will not be tolerated. It also helps to achieve transparency in the discipline process and it serves as a general deterrent to other members of the profession.
The Committee is satisfied that the penalty is appropriate in the circumstances and serves and protects the public interest.
Date: January 27, 2016
Wes Vickers, OCT
Chair, Discipline Panel
Jane Ishibashi
Member, Discipline Panel
Marie-Claude Yaacov
Member, Discipline Panel