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 Arthur Rosewell, OCT, a member of the Ontario College of Teachers.
PANEL: Irene Cheung, OCT, Chair
Jane Ishibashi
Stéphane Vallée, OCT
BETWEEN: ) Vladimira Ivanov,
) McCarthy Tétrault LLP, ) for Ontario College of Teachers,
ONTARIO COLLEGE OF TEACHERS ) assisted by Annie Lacroix,
) Law Clerk
– and – )
DAVID ARTHUR ROSEWELL ) Joshua Phillips,
(CERTIFICATE #274492) ) Ursel Phillips Fellows Hopkinson ) LLP,
) for David Arthur Rosewell
) Erica Richler,
) Steinecke Maciura LeBlanc, ) Independent Legal Counsel
) ) Heard: June 21, 2016
DECISION, REASONS FOR DECISION AND ORDER
This matter came on for hearing before a panel of the Discipline Committee (the "Committee") on June 21, 2016 at the Ontario College of Teachers (the "College") at Toronto.
A Notice of Hearing dated March 12, 2013 (Exhibit 1) was served on David Arthur Rosewell (the "Member"), requesting his presence on April 9, 2013 to set a date for hearing, and specifying the charges. The hearing was subsequently set for June 21, 2016.
The Member was in attendance for the hearing and had legal representation.
THE ALLEGATIONS
The allegations against the Member in the Notice of Hearing are as follows:
IT IS ALLEGED that David Arthur Rosewell is guilty of professional misconduct as defined in subsections 30(2) and 40(1.1) of the Ontario College of Teachers Act, 1996 (the "Act") in that:
(a) he failed to maintain the standards of the profession, contrary to Ontario Regulation 437/97, subsection 1(5);
(b) he abused a student or students physically, sexually, verbally, psychologically or emotionally, contrary to Ontario Regulation 437/97, subsection 1(7) [pre-2008 amendment] and/or engaged in sexual abuse of a student or students defined in section 1 of the Act;
(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).
STATEMENT OF UNCONTESTED FACTS
College Counsel 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:
David Arthur Rosewell was at all material times, a member of the Ontario College of Teachers. Attached hereto and marked as Exhibit "A" is a copy of the Ontario College of Teachers Registered Member Information respecting the Member.
At all material times, the Member was employed by the Upper Grand District School Board (the "Board") as a [XXX] teacher at [XXX] School (the "School").
From approximately 2008 to December 31, 2011, the Member sent sexually suggestive and/or personal text messages and/or Facebook messages to current and/or former students. Attached hereto and marked as Exhibit "B" are hardcopies of some of the electronic messages sent by the Member to those students.
In or around the 2010-2011 academic year, Student 1 was a female Grade [XXX] student at the School. During that time, the Member sent to Student 1 text messages and/or Facebook messages which included inquiries as to what she was doing and suggesting that when she turned [XXX] years old, she and the Member would go to bars together to drink and see bands.
In or around 2011, Student 2 was a female Grade [XXX] student at the School. In the summer of 2011, following Student 2's [XXX], the Member sent to Student 2 sexualized text messages and/or Facebook messages when he was inebriated. Attached hereto and marked as Exhibit "C" is a hardcopy of some but not all of the communications between the Member and Student 2.
PLEA OF NO CONTEST
By this document, the Member does not contest, for the purposes of this proceeding only, the truth of the facts and the exhibits referred to in the paragraphs above (the "Uncontested Facts").
The Member hereby acknowledges that the Uncontested Facts referred to above 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(7.2), 1(7.3), 1(15), 1(18) and 1(19). The Member also acknowledges that he engaged in sexual abuse of a student(s) 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 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 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;
(e) he understands that any agreement between counsel for the College and himself with respect to the penalty proposed in this document does not bind the Discipline Committee;
(f) he understands and acknowledges that he is executing this Agreement voluntarily, unequivocally, and with the advice of legal counsel.
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.
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
Counsel for the College requested that the allegations of professional misconduct outlined in paragraphs (b) and (c) of the Notice of Hearing, namely that the Member contravened subsections 1(7) [pre-2008 amendment] and 1(7.1) of Ontario Regulation 437/97, be withdrawn. The Committee granted the request.
Having considered the Statement of Uncontested Facts and Plea of No Contest and the submissions of the parties, 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(7.2), 1(7.3), 1(15), 1(18) and 1(19) and that the Member engaged in sexual abuse of a student or 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 5 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(7.2), 1(7.3), 1(15), 1(18) and 1(19) and that the Member engaged in sexual abuse of a student or students of a nature defined in sections 1 and 40(1.1) of the Act.
Paragraphs 3, 4 and 5 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 3, 4 and 5 of the Statement of Uncontested Facts and Plea of No Contest demonstrate that the Member abused students psychologically or emotionally, contrary to Ontario Regulation 437/97, subsection 1(7.2).
Paragraphs 3, 4 and 5 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/or engaged in sexual abuse of students as defined in sections 1 and 40(1.1) of the Act.
Paragraphs 3, 4 and 5 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 3, 4 and 5 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 as disgraceful, dishonourable or unprofessional, contrary to Ontario Regulation 437/97, subsection 1(18).
Paragraphs 3, 4 and 5 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 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 that the Member appear before the Committee immediately following the hearing of this matter to receive a reprimand which will be delivered in person at the offices of the Ontario College of Teachers, 101 Bloor Street West, Toronto, Ontario, and the fact of the reprimand is to be recorded on the Register of the Ontario College of Teachers (the "Register");
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 six 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;
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 commencing a teaching position or any position for which a Certificate of Qualification and Registration is required (a "Teaching Position"), the Member shall enrol in and successfully complete at his own expense, a course of instruction pre-approved by the Registrar regarding boundary issues, subject to the following conditions;
(i) the Member will provide to a course practitioner 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 will provide to the Registrar, for approval, a syllabus for the proposed course which specifically addresses the Discipline Committee's concerns regarding the Member's professional misconduct. The syllabus proposed by the course practitioner shall also specify the length of the course to be undertaken by the Member, and the assignments to be completed by the Member;
(b) within 30 days of his completion of the course outlined in (a) above, the Member shall provide to the Registrar a written report from the 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.
- 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 PUBLICATION
Submissions of College Counsel
College Counsel submitted that publication with the name of the Member is appropriate and warranted in this case. Publication of a member's name is one of the most important "tools" for deterrence. Publication with the name of the Member serves as a specific deterrent to the Member and as a general deterrent to the profession because it is embarrassing; it exposes the full consequences of the Member's misconduct. College Counsel added that the Committee's denunciation of the Member's conduct through the publication of his name is in the public interest as it demonstrates to the public that acts of professional misconduct are not tolerated and are taken seriously by the College. Furthermore, publication of the Member's name demonstrates that the College will not shield its members when allegations like those facing the Member are made.
Publication with the Member's name is also 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. College Counsel submitted that publication of the Member's name restores public trust in the profession in the face of behaviour that threatens to erode that trust.
College Counsel argued that publication of the Member's name demonstrates the importance of maintaining boundaries between teachers and students. Teachers must always maintain a professional relationship with their students. Publication of the Member's name will remind the Member and the profession that treating students as friends and failing to maintain appropriate professional boundaries can have serious consequences. A great deal of trust is placed on teachers to be role models and not to abuse their position of trust and authority.
College Counsel referred the Committee to two cases involving inappropriate conduct by a member towards students: Ontario College of Teachers v. Burdett, 2011 LNONCTD 13 ("Burdett") and Ontario College of Teachers v. Ferris, 2013 LNONCTD 22 ("Ferris"). College Counsel submitted that in Burdett the reasons for ordering publication of the member's name emphasized transparency and openness, the public expectation and the effect of specific and general deterrence. College Counsel noted that in Ferris, the member received a lesser penalty for arguably lesser behaviour, but publication of the member's name was nonetheless ordered because the transparency of the discipline process superseded the member's privacy interests.
Submissions of Member's Counsel
Counsel for the Member began his submissions by noting that the misconduct in Burdett was much more serious than that found by the Committee in the Member's proceeding, which helped to explain why Mr. Burdett was suspended for 12 months.
Counsel for the Member acknowledged that publication is important because the public and the profession need to understand what has occurred. Counsel for the Member noted that there is an embarrassment factor to publication of members' names and that it is very clear that in the majority of cases the names are published. Counsel for the Member argued, however, that each case must be decided on its own facts and that the Committee can exercise its discretion when making this decision; there is no presumption of publication of the Member's name.
Counsel for the Member submitted that publication with the name of the Member is not warranted in this case. The purposes of penalty, including specific deterrence, general deterrence, and transparency will be met through the other components of the penalty order, including the reprimand, coursework and suspension. There is no value added by publishing the Member's name in the College's official publication, and it would stigmatize the Member.
Counsel for the Member urged the Committee to look first at the nature of the found misconduct and ask itself what needs to be "fixed" vis-à-vis the Member. Counsel for the Member then asked the Committee to consider what best communicates to the profession the seriousness of the matter. According to Member's Counsel, the Member's conduct crossed a boundary. While acknowledging that it is a serious matter, Counsel for the Member noted that the Member did not initiate a sexual relationship and he was not grooming or laying the foundation for a sexual relationship. According to Counsel for the Member, the Member was just trying to befriend students but he was not manipulating or isolating students. Counsel for the Member argued that he was not minimizing the Member's conduct, but noted that the Member "didn't get it" regarding boundaries.
Counsel for the Member argued that once the Committee understands the dynamic of the Member's relationship with the students in question, then the key specific deterrent for the Member is the boundary course which will ensure that the Member respects boundaries going forward. Furthermore, Counsel for the Member argued that specific deterrence is the key in this matter. In addition, Counsel for the Member submitted that the six month suspension drives home the message to the Member and the profession regarding this type of conduct. Counsel for the Member noted that a six month suspension could have ended the Member's current employment had he been employed. Counsel for the Member also noted that a finding of sexual abuse of a student is a very significant deterrent.
Reply Submissions of College Counsel
College Counsel replied to the submissions of Member's Counsel by stating that the Member began communicating with Student 2 after she had just barely [XXX]. College Counsel also replied that the Act's definition of sexual abuse of students is broad and for a good reason – in the context of a student-teacher relationship, even comments are serious enough to be considered a breach of the trust placed in teachers. Sexual comments are a serious violation of the boundary between students and teachers. The College has a mandate to protect the public and that is why sexual abuse is broadly defined.
College Counsel replied to the issue of the "dynamic" raised by Counsel for the Member. College Counsel argued that regardless of how the Member viewed the relationship it was still one of power and supervision. College Counsel pointed to the exchanges between the Member and Student 2 and noted that the Member pressured Student 2 into continuing the exchanges.
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 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 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.
Given the serious nature of the Member's conduct, the Committee finds that a six month suspension is reasonable and appropriate. The duration of the suspension is within a reasonable range, as established by the case law presented by the College. The suspension will serve as an important deterrent to members of the teaching profession.
The Committee finds that the course of instruction regarding boundary issues 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.
The Committee finds that publication with the Member's name in Professionally Speaking/Pour parler profession is warranted. In terms of mitigating factors, the Committee acknowledges that the Member signed a Statement of Uncontested Facts and Plea of No Contest, thus saving College resources and sparing witnesses any inconvenience.
However, when weighed against the aggravating factors, the balance tips clearly in favour of publication of the Member's name. The Member engaged in inappropriate communications with students and those communications spanned approximately three years. The comments were often sexualized and they were always unprofessional. On some occasions, the Member sent the students messages while he was inebriated. The Member's comments were clearly unwelcomed by Student 2. Despite the fact that Student 2 repeatedly told the Member how inappropriate his comments were, the Member showed no insight into how inappropriate his behaviour was and how far it crossed student-teacher boundaries. In fact, the Member still pressured Student 2 into maintaining the inappropriate contact.
The Member ought to understand that the power imbalance inherent in the teacher-student relationship does not enable teachers and students to be friends. No matter how amicable the Member's relationship with his students is, it is erroneous to characterize this dynamic as a friendship. The Member's conduct fell far below what is expected of members of the profession who have the privilege of teaching in Ontario. As a specific deterrent to the Member and as a message of general deterrence to the profession, publication of the Member's name is justified.
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: August 8, 2016
Irene Cheung, OCT
Chair, Discipline Panel
______________________________ Jane Ishibashi
Member, Discipline Panel
Stéphane Vallée, OCT
Member, Discipline Panel