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
Riaz Khamis, OCT, a member of the Ontario College of Teachers.
PANEL: Tom Potter, Chair Colleen Landers Sara Nouini, OCT
BETWEEN:
ONTARIO COLLEGE OF TEACHERS Ava Arbuck, McCarthy Tétrault LLP, for Ontario College of Teachers, assisted by Daniela Spano, Law Clerk
– and –
Riaz Khamis (CERTIFICATE # 429402) Kirsty Niglas-Collins, KNC Law, for Riaz Khamis
Julie Maciura, Steinecke Maciura LeBlanc, Independent Legal Counsel
Heard: February 28, 2017
DECISION, REASONS FOR DECISION AND ORDER
This matter came on for hearing before a panel of the Discipline Committee (the “Committee”) on February 28, 2017 at the Ontario College of Teachers (the “College”) at Toronto.
A Notice of Hearing dated June 16, 2016 (Exhibit 1) was served on Riaz Khamis (the “Member”), requesting his presence on July 5, 2016 to set a date for hearing, and specifying the charges. The hearing was subsequently set for February 28, 2017.
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 Riaz Khamis 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, contrary to Ontario Regulation 437/97, subsection 1(7.1);1
(c) he abused a student or students psychologically or emotionally contrary to Ontario Regulation 437/97, subsection 1(7.2);
(d) 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 as defined in section 1 of the Act;2
(e) 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);
(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).
AGREED STATEMENT OF FACTS
Riaz Khamis 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 respecting the Member.
At all material times, the Member was employed by the Toronto District School Board (the “Board”) as a teacher at [XXX]in Toronto, Ontario.
At all material times during the 2013-2014 school year, Students 1, 2 and 3 were Grade [XXX] female students in the Member’s [XXX]class.
Inappropriate Physical Contact
In early October 2013, the Member made physical contact with Student 1 in class when he tapped Student 1 on her shoulder with a rolled up newspaper, in an attempt to redirect her attention. The newspaper was a thin daily edition. On another occasion a few days later, the Member tapped Student 1 on her back with a rolled up newspaper, in an attempt to redirect her attention. Student 1 felt uncomfortable when the Member touched her in this way and reported the incidents to the administration.
On one occasion, the Member tapped Student 2 on her head with a newspaper when she was off task and talking to friends in class. If the Member were to testify, he would state that he does not recall tapping Student 2 on her head. On another occasion the Member tapped her shoulder. Student 2 felt uncomfortable when the Member touched her in this way.
Taking Pictures of Female Students without their Consent
During the month of October 2013, some of the female students in the Member’s Grade [XXX] class suspected that the Member may be taking their pictures with his cell phone without their consent. They observed that sometimes when the Member walked around the classroom, he appeared to be pointing the camera of his cell phone at certain female students, while tapping his phone with one finger. Because the Member never mentioned he was taking pictures in class, nor did he seek or request the students’ permission to do so, these students were not certain what he was doing with his phone as he walked by them, and did not feel comfortable confronting the Member about it.
On or about October 30, 2013, the Member gave Student 3 permission in class to check for an email on his cell phone regarding an upcoming field trip she was involved in planning. Student 3 used this opportunity to scroll through the Member’s pictures to verify whether or not the Member had been taking their pictures without their permission. Student 3 observed individual pictures of herself and other female students, as well as pictures of nude women that had been downloaded from the Internet, on the Member’s phone. Many of the pictures of the students were taken from behind or beside them, as they were seated working at their desks, and captured parts of their arms, legs, backs of heads, or faces. She did not scroll through all of the pictures on the Member’s phone; however, she did not see any pictures of male students in his recently saved pictures.
If the Member were to testify, he would state that he took pictures of both male and female students and teachers engaging in normal school activities.
Three female students seated with Student 3 while she had possession of the Member’s phone also observed the pictures. All four students felt very uncomfortable seeing pictures of themselves and their friends among pictures of nude women on the Member’s cell phone. Together they reported the situation to the administration.
Board Investigation
The Board appointed an investigator to investigate the allegations. By letter dated September 10, 2014, the Board advised the Member it had completed its investigation and concluded that the Member’s conduct was incompatible with the Board’s expectations: “As a teacher, you are obliged to exercise sound professional judgment at all times when dealing with students. That includes the need to be sufficiently mindful of the boundaries that exist between teachers and their students in the classroom and beyond. It is fair to say that your conduct…is reflective of poor decision-making in this regard and is, for that reason, a source of concern for your employer.”
The Board suspended the Member for three days without pay and required the Member to provide his Principal with evidence by November 3, 2014, that he had satisfactorily addressed his professional development needs regarding the parameters that define appropriate interactions between students and teachers. Attached hereto and marked as Exhibit “B” is a copy of the Principal’s letter dated September 10, 2014, as well as a copy of the Central Coordinating Principal’s letter dated December 4, 2014, confirming that the Member’s suspension was reduced from three days to two days, upon resolution of the Member’s grievance.
The Member continues to teach at the School.
Prior Discipline History at the Board
- In 2008, the Board concluded that the Member had engaged in inappropriate comments and touching of female students. The Board imposed a suspension of three days without pay and administratively transferred the Member to another school, among other conditions.
GUILTY PLEA
By this document, the Member admits the truth of the facts and exhibits referred to in the paragraphs above (the “Admitted Facts”).
The Member hereby acknowledges that the Admitted Facts 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(7.2), 1(15), 1(18) 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 otherwise prove the case against him and the right to have a hearing;
(d) he understands that the Discipline Committee’s decision and reasons shall be published on the College’s website, and that a summary of the Discipline Committee’s decision and reasons, including his name, shall 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 does not bind the Discipline Committee;
(f) he understands and acknowledges that he is executing the Agreed Statement of Facts and Guilty Plea 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 allegations of professional misconduct outlined in paragraphs (b) and (d) of the Notice of Hearing, namely that the Member contravened subsections 1(7.1) and 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(7.2), 1(15), 1(18) and 1(19).
REASONS FOR DECISION
The Member admitted the truth of the facts and exhibits referred to in paragraphs 1 to 13 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(7.2), 1(15), 1(18) and 1(19).
Paragraphs 4, 5, 6, 7 and 9 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 4, 5, 6, 7 and 9 of the Agreed Statement of Facts and Guilty Plea demonstrate that the Member abused a student or students psychologically or emotionally contrary to Ontario Regulation 437/97, subsection 1(7.2).
Paragraphs 6, 7 and 9 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 subsection 264(1) thereof or the Regulations made under that Act, contrary to Ontario Regulation 437/97, subsection 1(15).
Paragraphs 4, 5, 6, 7 and 9 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 disgraceful, dishonourable or unprofessional, contrary to Ontario Regulation 437/97, subsection 1(18).
Paragraphs 4, 5, 6, 7 and 9 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).
Teachers are expected to maintain the standards of the profession. The Member failed to do so in that he made inappropriate physical contact with students. His actions made female students feel uncomfortable. The Member also took photos of female students without their knowledge or consent. This was a violation of the students’ personal space and privacy. The Member betrayed their trust and violated their sense of security. Female students in his class felt very uncomfortable seeing pictures of themselves, taken without their consent, on the Member’s phone. As well, the Member gave a student access to his phone, knowing that it contained downloaded pictures of naked women. The Committee finds this conduct very disturbing and very unprofessional. The Committee further takes note and is troubled by the fact that, in 2008, the Member had been suspended by his school board and administratively transferred to another school, along with other conditions, for similar professional misconduct.
As a teacher, the Member holds a position of responsibility and trust, and is expected to ensure a safe classroom environment at all times. The Member is required to act as a role model, and his conduct towards students did not reflect this obligation.
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 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 W., 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 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) within 90 days of the date of the Order of the Discipline Committee, the Member shall enrol in and successfully complete at his own expense, a course of instruction pre-approved by the Registrar regarding appropriate professional boundaries with students, subject to the following conditions;
(i) the Member will provide to a course practitioner 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, 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.
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 the discipline process into disrepute or be otherwise contrary to the public interest.
Counsel for the College presented a case in argument, Ontario College of Teachers v. Hurst, 2010 ONOCT 19, which dealt with a teacher who was surreptitiously taking pictures of students. The Committee found the case of limited use because it was decided some time ago; more recent cases would have been of more assistance.
The case at bar involved very serious misconduct, and appears to be indicative of a pattern on the part of the Member in violating boundaries with female students. The Committee struggled with approving the penalty as jointly proposed by the parties, due to the fact that this was the second instance of misconduct. The school board suspended the Member without pay on the previous occasion and also did so in in relation to the misconduct currently before the Committee. There was no evidence put before the Committee that the previous instance of misconduct in 2008 came before the College Discipline Committee. However, notwithstanding these concerns, the Committee finds that the joint submission on penalty does not meet the high test of bringing the administration of the discipline process into disrepute and the Committee accepts the submission.
The Committee finds that the Member’s inappropriate conduct, as set out above, 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.
The Committee finds that the course of instruction regarding appropriate professional boundaries with students 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 emphasizes that, given that the Member has committed similar misconduct in the past and was previously suspended by his Board in 2008, the coursework should recognize the Member’s repeated misbehaviour. The coursework should address an apparent pattern of misconduct regarding the Member’s insensitive and inappropriate treatment of female students.
Publication of this decision with the Member’s name is now mandatory in accordance with subsection 45.1 of the Act. Accordingly, the Committee’s decision and reasons will be published with the Member’s name on the College’s website and a summary will be published with the Member’s name in the official publication of the College, Professionally Speaking/Pour parler profession. Publication acts as specific deterrent to the Member and general deterrent to the profession because it communicates that this type of conduct will result in public censure.
The Committee is satisfied that the jointly proposed penalty is appropriate in the circumstances and meets the principle of serving and protecting the public interest.
Date: March 8, 2017
Tom Potter Chair, Discipline Panel
Colleen Landers Member, Discipline Panel
Sara Nouini, OCT Member, Discipline Panel