ATTENTION: In accordance with subsection 486.4 of the Criminal Code of Canada and pursuant to the order handed down by the Honourable Justice Sproat on May 22, 2014, any information that could identify the victim in this matter shall not be published.
DISCIPLINE COMMITTEE OF THE ONTARIO COLLEGE OF TEACHERS
IN THE MATTER OF the Ontario College of Teachers Act, 1996, and Ontario Regulation 437/97 thereunder;
AND IN THE MATTER OF a discipline proceeding against Stéphane Gilbert, a member of the Ontario College of Teachers.
PANEL: Robert Gagné, Chair Brigitte Bidal-Piquette, OCT Stéphane Vallée, OCT
BETWEEN: ) Alexandre Blanchard, ) McCarthy Tétrault LLP, ) for the Ontario College of Teachers, ONTARIO COLLEGE OF TEACHERS ) assisted by Annie Lacroix, ) Law Clerk – and – ) STÉPHANE GILBERT ) Stéphane Gilbert (CERTIFICATE #426921) ) was not present or represented ) Renée Kopp, ) Jones Litigation Counsel LLP, ) Independent Legal Counsel ) Heard: December 15, 2016
DECISION, REASONS FOR DECISION AND ORDER
This matter came on for hearing before a panel of the Discipline Committee (the “Committee”) of the Ontario College of Teachers (the “College”) on December 15, 2016 at Toronto.
A Notice of Hearing dated April 23, 2015 (Exhibit 1) was served on Stéphane Gilbert (“the Member”), requesting his presence on July 7, 2015 to set a date for the hearing, and specifying the charges. The hearing was subsequently set for December 15, 2016.
The Member was not in attendance for the hearing and did not have legal representation.
College Counsel submitted an Affidavit of Annie Lacroix sworn December 13, 2016 (Exhibit 3), to prove that the Member had been informed of the allegations against him, the date and time of the hearing and the penalty that was to be sought. In the affidavit, Ms. Lacroix, a law clerk with McCarthy Tétrault LLP, describes in detail her communication with the Member and provides proof of service of all required documents. On the basis of the affidavit, the Committee is satisfied that the Member received the Notice of Hearing and all disclosure documents, and that he was aware of the date and time of the hearing and the penalty that was to be sought. The Committee delayed the commencement of the hearing by approximately 15 minutes to enable the Member to attend at the hearing. Because he failed to do so, the Committee heard this matter in his absence.
ORDER OF NON-PUBLICATION
In the Member’s criminal trial before the Honourable Mr. Justice Sproat of the Ontario Superior Court of Justice on May 22, 2014, Justice Sproat made an order of non-publication and non-disclosure pursuant to subsection 486.4 of the Criminal Code of Canada (refer to Exhibit 4). The Committee is required to comply with this order and therefore prohibits the publication of any information that could identify the victim in this matter.
ALLEGATIONS
The allegations against the Member in the Notice of Hearing are as follows:
IT IS ALLEGED that Stéphane Gilbert 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 one or more students physically, sexually, verbally, psychologically or emotionally, contrary to Ontario Regulation 437/97, subsection 1(7) [prior to the 2008 amendment];
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 contravened a law 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);
e) he contravened a law such that the contravention has caused or may cause a student who is under the member’s professional supervision to be put at or to remain at risk, contrary to Ontario Regulation 437/97, subsection 1(17);
f) 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
g) he engaged in conduct unbecoming a member, contrary to Ontario Regulation 437/97, subsection 1(19).
PARTICULARS OF THESE ALLEGATIONS ARE AS FOLLOWS:
The Member is a member of the Ontario College of Teachers in good standing.
At all material times, the Member was employed by the Conseil scolaire de district catholique Centre-Sud as a teacher. From 1999 to 2003, the Member taught at [XXX] (the “School”) in [XXX].
During the relevant period, Student 1 was a student at the School.
The Member touched Student 1 for a sexual purpose on or about June 30, 2003.
The Member engaged in an inappropriate sexual relationship with Student 1.
On May 22, 2014, the Member was found guilty of sexual exploitation, contrary to section 153 of the Criminal Code of Canada.
MEMBER’S PLEA
Because the Member was not in attendance at the hearing nor was he represented by legal counsel, the Committee proceeded on the assumption that he denied the allegations set out in the Notice of Hearing. The Chair of the Committee, on behalf of the Member, entered a plea of not guilty to the allegations.
THE EVIDENCE
College Counsel entered into evidence the Registered Member Information for Stéphane Gilbert (Exhibit 2), which indicates that the Member was a member of the College at the time of the alleged incidents. The College also entered into evidence a Brief of Court Documents - Her Majesty the Queen v. Stéphane Gilbert (Exhibit 4), which contains the following documents:
Indictment and approvals;
Conditional Sentence, dated September 9, 2014;
Transcript: R v. S.G., Reasons for Judgment before the Honourable Justice Sproat, dated May 22, 2014;
Transcript: R v. Stéphane Gilbert, Proceedings at Sentence before the Honourable Justice J. Sproat, dated September 9, 2014;
Transcript: R v. Stéphane Gilbert, Decision of the Court of Appeal for Ontario, dated December 30, 2015.
The evidence presented in Exhibit 4 confirms that, on May 22, 2014, in the Ontario Superior Court of Justice, the Member was found guilty of sexual exploitation, contrary to section 153 of the Criminal Code of Canada. The Member appealed the guilty verdict, but the appeal was rejected on December 30, 2015 and the decision is not appealable.
SUBMISSIONS ON FINDING
College Counsel described the Member’s criminal history and submitted that the Member’s case was one of sexual abuse, which is among the College’s most serious allegations. Counsel also submitted that the Member’s conduct, as detailed in the Brief of Court Documents (refer to Exhibit 4), and the resultant criminal conviction, provided a sufficient basis to justify a finding of professional misconduct under all of the heads of misconduct alleged in the Notice of Hearing. The Member had legal representation during his criminal proceedings.
College Counsel produced the following case law in support of his position that the Member’s misconduct warranted a finding of professional misconduct, as set out in the Notice of Hearing: Ontario College of Teachers v. Gervais, 2015 ONOCT 27 (“Gervais”) and Ontario College of Teachers v. McDermott, 2014 ONOCT 65 (“McDermott”). A finding of professional misconduct was made in these two cases whose circumstances were similar to those involving the Member.
DECISION
Having considered the evidence, the onus and standard of proof and the submissions by College Counsel, the Committee finds that the facts support a finding of professional misconduct. In particular, the Committee finds that Stéphane Gilbert committed acts of professional misconduct as alleged in the Notice of Hearing, contrary to Ontario Regulation 437/97, subsections 1(5), 1(7) [prior to the 2008 amendment], 1(15), 1(16), 1(17), 1(18) and 1(19).
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 “Rules of Procedure”), inter alia, the Committee accepts the certified copy of the Court Information as proof, in this case, that the Member committed the criminal offence outlined therein (refer to Exhibit 4). The Member was found guilty and convicted of sexual exploitation, contrary to section 153 of the Criminal Code of Canada, before a Canadian Court. An appeal was taken to the Court of Appeal of Ontario, and was rejected on December 30, 2015 (refer to Exhibit 4, Tab E).
In addition, pursuant to Rule 13.04 of the Rules of Procedure, the Committee admits as incidental to the certified copy of the Court Information, the findings of fact contained in the related decision by the Ontario Superior Court of Justice in the Member’s case. In support of its finding of guilt against the Member, the Committee further admits as incidental transcripts of the court proceeding at which he was found guilty (refer to Exhibit 4).
Based on the evidence in the Brief of Court Documents, the College has proven, on a balance of probabilities, that on or about June 30, 2003, the Member touched Student 1 for a sexual purpose and that he was involved in a sexual relationship with the Student. In particular, the Member was involved in two incidents in which he kissed Student 1. One of the incidents took place over a period of approximately 30 minutes. In addition, the Member’s relationship with the Student was overly familiar: they exchanged emails and discussed personal matters. Accordingly, on May 22, 2014, the Member was found guilty of sexual exploitation, contrary to section 153 of the Criminal Code of Canada. His guilt was proven beyond all reasonable doubt.
The Committee finds the Member’s conduct unacceptable. He abused his position of trust and authority as a member of the teaching profession. Accordingly, the Committee finds that the Member’s sexual abuse of Student 1 constitutes professional misconduct contrary to Ontario Regulation 437/97, subsections 1(5), 1(7) [prior to the 2008 amendment], 1(15), 1(16), 1(17), 1(18) and 1(19). His misconduct is a serious violation of his responsibilities as a teacher.
SUBMISSIONS ON PENALTY
College Counsel submitted that revocation of the Member’s Certificate of Qualification and Registration would be the only appropriate penalty in the circumstances. Revocation would satisfy the three purposes of the penalty; i.e., 1) protecting the public, 2) upholding the high standards of the teaching profession and 3) promoting public trust in the profession. It protects the public, acts as a specific deterrent for the Member and serves as a general deterrent for the other members of the teaching profession. In view of the gravity of the Member’s misconduct and the fact that he was convicted of sexual exploitation in criminal court, the College argued that revocation would be an appropriate penalty and drew the Committee’s attention to the decisions in Gervais and McDermott, in which revocation was ordered in similar circumstances.
In the matter of publication, the College argued that the Committee ought not to make a publication order because it no longer had discretion in this regard. Publication has been compulsory in all cases since December 5, 2016, pursuant to the recent amendments to section 45.1 of the Act.
In the matter of the compulsory revocation referred to in subsection 30.2 of the Act, the College argued that the provision did not apply in this matter because the facts did not meet the requirements of subsection 30.2(2). College Counsel claimed that revocation was appropriate in this case, however, in view of the sexual relationship between the Member and Student 1 and his abuse of power.
Additional Submissions by the College in Response to Questions from the Committee
After hearing the submissions by College Counsel, the Committee asked him several questions concerning the proposed penalty. In particular, the Committee wondered whether revocation was appropriate given that the Member’s misconduct was considerably less serious than that in Gervais and McDermott. The Committee gave College Counsel an opportunity to make additional submissions concerning the proposed penalty.
In response to the questions asked by the Committee, College Counsel reviewed the findings of fact in the criminal trial and submitted additional legal authorities to the Committee. The College notes several key facts. Firstly, the incidents in question occurred in 2003, but the criminal charges were not laid until 2013 (i.e., 10 years later), because the student had eventually seen a therapist and had realized the seriousness of the Member’s actions. The College argued that the Member’s misconduct was so serious that its impact was still being felt 10 years later.
Secondly, College Counsel claimed that the incident consisted of more than a single kiss. During one of the two incidents in which the Member kissed Student 1, they kissed intermittently for a half-hour. Furthermore, according to the College, the testimony of Student 1’s father and of other students (at the criminal trial) showed that the Member was predisposed to such misconduct.
In addition, College Counsel introduced the Professional Advisory on Professional Misconduct Related to Sexual Abuse and Sexual Misconduct in support of his position. The Advisory states clearly, inter alia, that members should avoid sexual relationships with and any form of sexual touching of a student. According to the College, any conduct of a sexual nature, such as the misconduct in the Member’s case, warrants revocation. The nature of the misconduct is the paramount concern, according to the College.
College Counsel reviewed the case law presented to the Committee in greater detail to show that revocation was an appropriate penalty in response to the Member’s misconduct. The College argued that the facts in McDermott, for example, were very similar to the facts in the Member’s case. Both cases concerned a kiss between teacher and student, and both members were convicted of sexual exploitation, contrary to section 153 of the Criminal Code of Canada. College Counsel also drew the Committee’s attention to the aggravating circumstances specified by Justice Sproat at the sentencing hearing (refer to Exhibit 4, Tab D, pages 2-3).
College Counsel also produced additional case law for the Committee in which revocation was ordered in circumstances similar to the Member’s: Ontario College of Teachers v. Fletcher, 2013 ONOCT 207 (“Fletcher”) and Ontario College of Teachers v. Deans, 2012 ONOCT 11 (“Deans”). In Fletcher, for example, the Committee found that the member had engaged in sexual abuse of a student by kissing her and in doing so, abused the trust vested in him as a teacher. The Committee revoked Mr. Fletcher’s certificate. In Deans, the member disregarded very specific rules and some good advice, and wilfully chose to continue an inappropriate relationship. His certificate, too, was revoked. The College argued that the same finding would be appropriate in the Member’s similar case. College Counsel reiterated that it was the sexual nature of the Member’s misconduct that warranted the revocation.
PENALTY DECISION
The Committee makes the following penalty order:
- The Committee directs the College Registrar to revoke the Member’s Certificate of Qualification and Registration.
REASONS FOR PENALTY DECISION
After carefully reviewing the evidence and submissions of College Counsel, and the numerous legal authorities presented, the Committee finds that the revocation of the Member’s Certificate of Qualification and Registration is appropriate in the circumstances. The Committee acknowledges that the compulsory revocation referred to in subsection 30.2 of the Act does not apply in this instance because the facts do not satisfy the requirements of subsection 30.2(2), but the Member’s conduct with regard to Student 1 is unacceptable and revocation is warranted in the circumstances. The Member engaged in a sexual relationship with the student and was found guilty of sexual exploitation, contrary to section 153 of the Criminal Code of Canada.
The Committee bases its decision on the findings of fact by the Honourable Justice Sproat of the Ontario Superior Court of Justice, in accordance with Rule 13.04 of the Rules of Procedure. Justice Sproat specified a number of aggravating circumstances, including the following: the Member’s misconduct was an abuse of trust; the misconduct was not an isolated incident; the student was vulnerable and was dealing with significant personal problems; and the student’s parents told the Member to stop the relationship with their daughter, but he continued it nonetheless (refer to Exhibit 4, Tab D, pages 2-3). Justice Sproat further noted that the Member had a tendency to engage in sexual contact with students who made advances to him, and did nothing to avoid this kind of inappropriate relationship (refer to Exhibit 4, Tab C, page 23). The Committee finds these aggravating circumstances serious. The Member took advantage of the trust vested in him as a teacher and abused the trust and authority associated with his role as a teacher. His sexual relationship with Student 1 is part of a disturbing pattern of behaviour.
Consequently, the Committee finds that revocation is an appropriate penalty in the circumstances, and is in line with the case law produced by the College, particularly McDermott and Fletcher. The Member’s misconduct was sexual in nature and undermined public confidence in the teaching profession. As a result, the Member has lost the privilege of holding a Certificate of Qualification and Registration.
In the matter of publication, the Committee acknowledges that it no longer has discretion in this regard and that publication has been compulsory since December 5, 2016, pursuant to section 45.1 of the Act, which has recently been amended.
The Committee is satisfied that the penalty is appropriate in the circumstances and serves and protects the public interest.
Date: January 9, 2017
Robert Gagné Chair, Discipline Panel
Brigitte Bidal-Piquette, OCT Member, Discipline Panel
Stéphane Vallée, OCT Member, Discipline Panel