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
Douglas Lee Saunders, OCT, a member of the Ontario College of Teachers.
PANEL: Tom Potter, Chair
Stéphane Vallée, OCT
Wes Vickers, OCT
BETWEEN: ) Christine Wadsworth,
) McCarthy Tétrault LLP, ) for Ontario College of Teachers,
ONTARIO COLLEGE OF TEACHERS ) assisted by Daniela De Bartolo,
) Law Clerk
– and – )
DOUGLAS LEE SAUNDERS ) Patricia D’Heureux,
(CERTIFICATE #232638) ) Cavalluzzo Shilton McIntyre
) Cornish LPP
) for Douglas Lee Saunders
) Erica Richler,
) Steinecke Maciura LeBlanc, ) Independent Legal Counsel
) ) Heard: November 3, 2016
DECISION, REASONS FOR DECISION AND ORDER
This matter came on for hearing before a panel of the Discipline Committee (the “Committee”) on November 3, 2016 at the Ontario College of Teachers (the “College”) at Toronto.
A Notice of Hearing dated September 14, 2012 (Exhibit 1) was served on Douglas Lee Saunders (the “Member”), requesting his presence on September 27, 2012 to set a date for hearing, and specifying the charges. The hearing was subsequently set for November 3, 2016.
The Member was not in attendance for the hearing but had 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 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)1 and engaged in sexual abuse of a student or students of a nature defined in sections 1 and 40 (1.1) of the Act;2
(c) he failed to comply with the Education Act, Revised Statutes of Ontario, 1990, chapter E.2, and specifically section 264(1)(c) 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).
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:
Douglas Lee Saunders is 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 for the Member.
At all material times, the Member was employed by the Toronto District School Board (the “Board”) as an [XXX] teacher at [XXX] School (the “School”) in Ontario.
During the 2007-2008 academic year, the Member granted and/or permitted Student 1 and Student 2, two male students of the Board under the age of sixteen years, entry and/or access to his Facebook page and by so doing, allowed Student 1 and Student 2 access to the following inappropriate material:
(a) A photographic image of a male athlete without a shirt, wearing a Speedo bathing suit and titled, “Hunk of the Day”;
(b) A cartoon showing a naked woman depicting her breasts and a naked man holding a string which was tied to his penis, with the caption, “When you’re old we’ll use anything not to sag”.
- During the 2007-2008 academic year, the Member,
(a) permitted a student and/or students in his classroom to have access to his personal laptop computer that contained cached images of a pornographic nature or erotic nature, which appeared to depict young adolescent males;
(b) permitted a student and/or students in his classroom to have access to his classroom computer that contained cached pornographic images and/or violent cartoon images and/or images of naked bodies; and
(c) allowed Student 3, Student 4 and Student 5, male students, to massage his back during class and did not make efforts to deter or prevent them from doing so.
GUILTY PLEA
By this document, the Member admits, for the purposes of this proceeding only, the truth of the facts and exhibits referred to in paragraphs 1 to 4 above (the “Admitted Facts”).
The Member hereby acknowledges that the Admitted Facts referred to in paragraph 5 above constitute conduct which is professional misconduct, and admits the allegations of professional misconduct against him, being more particularly breaches of Ontario Regulation 437/97, subsections 1(5), 1(15), 1(18 – unprofessional), and 1(19).
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 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 him and counsel for the College 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.
- In light of the admitted facts and circumstances and the plea of guilt, 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 allegation of professional misconduct outlined in paragraph (b) of the Notice of Hearing, namely that the Member contravened subsection 1(7)3 of Ontario Regulation 437/97, be withdrawn. The Committee granted the request.
Having considered the Agreed Statement of Facts and Guilty Plea 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(15), 1(18 – unprofessional), and 1(19).
REASONS FOR DECISION
The Member admitted the truth of the facts and exhibits referred to in paragraphs 1 to 4 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 constitute conduct which is professional misconduct, contrary to Ontario Regulation 437/97, subsections 1(5), 1(15), 1(18 – unprofessional), and 1(19).
Paragraphs 3 and 4 of the Agreed Statement of Facts and Guilty Plea demonstrate that the Member failed to maintain the standards of the profession, contrary to Ontario Regulation 437/97, subsection 1(5).
Paragraphs 3 and 4 of the Agreed Statement of Facts and Guilty Plea demonstrate that the Member failed to comply with the Education Act, Revised Statutes of Ontario, 1990, chapter E.2, and specifically section 264(1)(c) thereof or the Regulations made under that Act, contrary to Ontario Regulation 437/97, subsection 1(15).
Paragraphs 3 and 4 of the Agreed Statement of Facts and Guilty Plea demonstrate that the Member committed acts that having regard to all the circumstances would reasonably be regarded by members as unprofessional, contrary to Ontario Regulation 437/97, subsection 1(18).
Paragraphs 3 and 4 of the Agreed Statement of Facts and Guilty Plea 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), the parties 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 receive a reprimand. The parties have not agreed on whether the reprimand should be delivered in written form or in person, and submissions will be made on this issue. The fact of the reprimand is to be recorded on the Register of the Ontario College of Teachers (the “Register”);
direct the Registrar to suspend the Certificate of Qualification and Registration of the Member for a period of three 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 violations and sensitivity issues, subject to the following conditions;
(i) the Member will provide to a course provider approved by the Registrar, a copy of the Agreed Statement of Facts and Guilty Plea and Joint Submission on Penalty documents made exhibits at the hearing of this matter, and the Decision and Reasons of the Discipline Committee;
(ii) upon review of the documents noted at paragraph (i) above, the course provider 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 provider 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 provider:
(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 FORM OF REPRIMAND AND PUBLICATION
Submissions of College Counsel
With respect to the form of the reprimand, the Committee has the discretion to order that a reprimand be delivered in person (either immediately following the hearing or at a later date, prior to the Member’s return to teaching) or in writing. College Counsel did not take a position on whether the reprimand should be delivered in written form or in person, but requested that the reprimand be delivered either way. College Counsel submitted that a reprimand allows the Member to hear directly from the Committee that his conduct was unacceptable. Moreover, recording of the fact of the reprimand on the College Register informs the public and other members of the profession that matters before the Discipline Committee are taken seriously and resolved in an open and transparent manner, thereby fostering public trust in the discipline process.
College Counsel referred the Committee to two cases in which reprimands were ordered to be delivered in person, in order to demonstrate that it would be appropriate for the Committee to make such an order: Ontario College of Teachers v. Clements, 2016 LNONCTD 22 and Ontario College of Teachers v. French, 2016 LNONCTD 29 (“French”).
With respect to publication, College Counsel submitted that publication with the name of the Member is warranted in this case. Publication with name is an important tool that serves as a specific deterrent to the Member and as a general deterrent 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 and send a strong message that inappropriate behaviour is not tolerated. 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, thereby fostering public trust in the discipline process.
College Counsel referred the Committee to two analogous cases involving inappropriate conduct by a member: Ontario College of Teachers v. Orman, 2009 LNONCTD 10 (“Orman”) and Ontario College of Teachers v. Badgley, 2014 LNONCTD 31 (“Badgley”). College Counsel submitted that these cases were similar to the Member’s case and that publication with name was ordered in both instances.
Submissions of Member’s Counsel
With respect to the form of the reprimand, Member’s Counsel submitted that the Committee has the discretion to order a verbal or a written reprimand of the Member. Counsel for the Member noted that the Member has been retired from the profession since 2008 and that there is no public interest reason for the Member to appear before the Committee to be given a reprimand. Member’s Counsel submitted that the reprimand can be deferred until the Member returns to teaching. In the alternative, Member’s Counsel suggested that a written reprimand can be given. Member’s Counsel acknowledged that while a written reprimand will not have the same impact as a verbal reprimand delivered in person reprimand, a written reprimand ensures that the Member will receive it.
With respect to publication, Member’s Counsel submitted that publication with the name of the Member is not warranted in this case. Member’s Counsel noted that the Member had a long teaching career with no prior discipline history and that his misconduct was at the lower end of the spectrum of professional misconduct. Further, Member’s Counsel submitted that the issue of inappropriate use of social media should be given less weight by the Committee in determining the issue of publication because there was no policy or professional guidelines on the use of social media for members at the time of his misconduct in 2007-2008.
Member’s Counsel submitted that the purposes of penalty, including specific deterrence, general deterrence, and transparency will be met through the other components of the penalty including the reprimand, the suspension, and the terms, conditions or limitations that require the Member to successfully complete a course regarding boundary violations and sensitivity issues before returning to a Teaching Position. There is no value added by publishing the Member’s name in the College’s official publication.
Member’s Counsel referred the Committee to one case: Ontario College of Teachers v. Legros-Stewart, 2014 LNONCTD 97 (“Legros-Stewart”). According to Member’s Counsel, the Committee should follow this precedent in which the member’s name was not published in Professionally Speaking/Pour parler profession. Member’s Counsel further submitted that the cases submitted by College Counsel were distinguishable on the basis of their facts and should not be relied upon by the Committee. The Member’s case was less serious than Badgley and the aggravating factors in Orman weighed more heavily than the mitigating factors, which Member’s Counsel submitted should not be the case in this instance.
Reply Submissions of College Counsel
In reply, College Counsel submitted that the Member’s case involved serious misconduct that warrants a reprimand and publication with name. College Counsel urged the Committee not to follow Legros-Stewart and distinguished the decision in that matter from the Member’s case, noting that Legros-Stewart involved less serious misconduct than the Member’s case and that the penalty ordered was less severe in that matter; it included counselling and a coursework component. By contrast, the agreed upon components of the penalty in the Member’s case include a reprimand, a suspension and a coursework component. This indicates that the Member’s case is significantly more serious than Legros-Stewart. College Counsel added that publication with name would be appropriate given the more serious nature of the Member’s misconduct.
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 form of reprimand, the reprimand will be delivered in person prior to the Member commencing a Teaching Position. 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 pattern of inappropriate conduct involving violations of teacher-student boundaries and allowing students to access inappropriate material on his computer warrants a reprimand by his peers. The Committee orders that the reprimand be delivered in person before the Member returns to a Teaching Position, and not in written form. The reprimand will allow the Committee to directly address its concerns with the Member and will serve as a specific deterrent. The Committee believes that it is important to deliver the reprimand in person because it will have more impact on the Member than a written reprimand. Delivering the reprimand in person will also ensure that the Member receives his reprimand and that the reprimand cannot be disregarded. Recording the fact of the reprimand on the Register will serve as a general deterrent to other members of the profession.
The Committee finds that suspending the Certificate of Qualification and Registration of the Member for a period of three months is proportionate to the misconduct committed by the Member and is appropriate in this case. The Member’s conduct involved a repeated pattern of inappropriate and unprofessional behaviour towards students, and is unacceptable. In particular, the Committee was troubled by the lack of awareness and insight into the effect of his professional misconduct on the wellbeing of his students. The duration of the suspension is also appropriate given that it is within a reasonable range as established by other similar cases before the College’s Discipline Committee. Finally, recording the fact of the suspension on the Register will serve as a general deterrent to other members of the profession.
The Committee finds that the course of instruction regarding boundary violations and sensitivity issues will assist in the rehabilitation of the Member. The coursework will remind the Member of his obligations as a teacher, including the need to treat all students with respect and to maintain appropriate professional boundaries. Further, the coursework will serve a rehabilitative function and will help the Member make better decisions in the event he chooses to resume his teaching career.
The Committee finds that publication with the Member’s name in Professionally Speaking/Pour parler profession is warranted. While the Committee recognizes that the Member had no prior discipline history and that there may not have been a professional guideline regarding the use of social media at the time of his misconduct, the aggravating factors in this case outweigh the mitigating factors. The Member’s conduct was serious and repeated. The Member allowed students to have access to his Facebook page and his personal computer, both of which contained inappropriate material, including pornographic images. Regardless of whether there was a policy or professional guideline in place at the time, the Member ought to have known that it was inappropriate to allow students to access such material. The Member also allowed students to massage his back in class and made no efforts to prevent them from doing so. These examples demonstrate the Member’s poor professional judgment and his failure to maintain appropriate boundaries with his students. Teachers are expected to be positive adult role models for students. The Member failed in this respect.
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: November 14, 2016
Tom Potter
Chair, Discipline Panel
Stéphane Vallée, OCT Member, Discipline Panel
Wes Vickers, OCT
Member, Discipline Panel