Ontario College of Teachers v. Buckley, 2017 ONOCT 37

Citation: Ontario College of Teachers v Buckley 2017 ONOCT 37

Date: 2017-05-29

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

Richard S. Buckley, a member of the Ontario College of Teachers.

PANEL: Tom Potter, Chair

Alexander (Sandy) Bass

Sara Nouini, OCT

BETWEEN: ) Christine Lonsdale,

) McCarthy Tétrault LLP,

ONTARIO COLLEGE OF TEACHERS ) for Ontario College of Teachers, ) assisted by Daniela Spano,

– and – ) Law Clerk

Richard S. Buckley )

(CERTIFICATE # 438110) ) Adam Webb,

) Ursel Phillips Fellows

) Hopkinson LLP,

) for Richard S. Buckley

) Erica Richler and Julie Maciura,

) Steinecke Maciura LeBlanc, ) Independent Legal Counsel

) Heard: November 15 and 16, 2016, ) and April 6, 2017

DECISION, REASONS FOR DECISION AND ORDER

This matter came on for hearing before a panel of the Discipline Committee (the “Committee”) on November 15, 2016 at the Ontario College of Teachers (the “College”) at Toronto. The hearing continued on November 16, 2016 and April 6, 2017.

A Notice of Hearing dated April 14, 2015 (Exhibit 1) was served on Richard S. Buckley (the “Member”), requesting his presence on April 29, 2015 to set a date for hearing, and specifying the charges. The hearing was subsequently set for November 15, 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 Richard S. Buckley is guilty of professional misconduct as defined in subsection 30(2) 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 psychologically or emotionally, contrary to Ontario Regulation 437/97, subsection 1(7.2);

(c) he abused a student 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;

(d) 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);

(e) 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

(f) 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:

Richard S. Buckley 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 Bluewater District School Board (the “Board”) as a teacher at [XXX]School (the “School”) in[XXX], Ontario.
At all material times, the Student was a Grade [XXX] female student at the School.
During the 2013-2014 school year, the Student was enrolled in two of the Member’s classes, including the Member’s academic level [XXX]class. The Student expressed an interest in the subject matter of the course, after which the Student and the Member began communicating electronically. During their communications, the Student began sharing increasingly personal information with the Member.
Initially, the conversations between the Member and the Student were over Board email. Shortly thereafter, the Student attempted to add the Member as a friend on Facebook. The Member told the Student that it was his policy not to be Facebook friends with students; however, he indicated that the Student could send him text messages instead.
The electronic communications between the Member and the Student took place in the evening and lasted until about 2:00 a.m.
During their electronic communications, the Member told the Student he wanted to kiss her. However, he also told the Student that there would be no physical intimacy between them while she was still a student at the School.
In addition, the Member made comments to the Student by text message and/or Facebook:

(a) I like you;

(b) I think you are pretty;

(d) I was dying watching another student play with your hair;

(e) After the Student told the Member that she loved him, the Member told the Student that he loved her;

(f) I will love you deeply for the rest of my life;

(g) Has your boyfriend ever seen you naked?;

(h) I want to see you naked, too;

(i) Please don’t leave me;

(j) If I lose you, I’ll die;

(k) I don’t want to lose you. I can’t endure it. I’ve never been so in love;

(l) I’m so in love with you;

(m) Asked the Student to send him a picture of her face;

(n) During a conversation in which the Student told the Member that she was not happy with the size of her breasts, asked that she send him a picture of her breasts;

(o) Asked the Student to meet him outside of school hours.

As the Member’s comments to the Student became more personal and less appropriate, the Student became very uncomfortable and was concerned about how the situation would affect her marks. However, she did not communicate her discomfort to the Member.
The Member asked the Student to meet privately on occasion and asked the Student if they could go for a drive. The Student declined these invitations.
The Student tried to “cut things off” with the Member, but she feared for his safety and well-being.
The Student was fearful of the Member, but did not expressly communicate this to him. On one occasion, while the Member was hospitalized due to mental illness, he told the Student that he was going to kill himself.
On May 8 and 9, 2014, the mother of one of the Student’s friends contacted the School and reported that the Member was engaging in inappropriate communications with the Student.
The vice-principal of the School contacted the Member and the Student to investigate the allegation. After he had been contacted by the vice-principal, the Member contacted the Student to tell her that he was panicking and was going to kill himself. He asked her not to tell the School administrators what had occurred between them. Attached hereto and marked as Exhibit “B” is a copy of the Facebook conversation between the Member and the Student from May 10, 2014 to May 11, 2014 (after the Member had been advised that the relationship had been reported to school administration). Attached hereto and marked as Exhibit “C” are screenshots of text messages exchanged between the Member and the Student from May 11, 2014 and May 12, 2014.
The Student did not want to be responsible if the Member lost his job. She told the Member that she would try to keep him safe when the Board investigated his conduct.
The Member’s employment was terminated by the Board on or about May 21, 2014. Attached hereto and marked as Exhibit “D” is a copy of the letter from the Executive Officer of Human Resource Services to the Member dated May 21, 2014.

Disciplinary History at the College

On May 2, 2014, the Member was found guilty of professional misconduct and received a reprimand and terms, conditions or limitations were placed on his Certificate of Qualification and Registration. The Member was found guilty of harassing a colleague. The Member had been charged with Criminal Harassment contrary to the Criminal Code (Canada) and was given a conditional discharge and 12 months of probation in March 2009. A copy of the Discipline Committee’s Decision, Reasons for Decision and Orders is attached hereto and marked as Exhibit “E”.

GUILTY PLEA

By this document, the Member admits the truth of the facts and exhibits referred to in paragraphs 1 to 17 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(7.3), 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 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 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

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(7.3), 1(15), 1(18) and 1(19).

REASONS FOR DECISION

The Member admitted the truth of the facts and exhibits referred to in paragraphs 1-17 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(7.3), 1(15), 1(18) and 1(19).

Paragraphs 5-15 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 6-15 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 6-15 of the Agreed Statement of Facts and Guilty Plea demonstrate that the Member abused a student 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.

Paragraphs 5-15 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 5-15 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 5-15 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).

THE INITIAL PENALTY SUBMISSION BY THE PARTIES

On November 15, 2016, the Ontario College of Teachers and the Member, in a Joint Submission on Penalty (Exhibit 3), 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 prior to commencing or returning to a teaching position or any position for which a Certificate of Qualification and Registration (collectively referred to as a “Teaching Position”) is required, to receive a reprimand which will be delivered in person at the offices of the Ontario College of Teachers, 101 Bloor St. 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 suspend the Certificate of Qualification and Registration of the Member for a period of 24 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) within 90 days after the date of the Order of the Discipline Committee, the Member shall enrol in and successfully complete at his own expense, a course or courses of instruction pre-approved by the Registrar regarding maintaining 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, and the assignments to be completed by the Member;

(b) within 30 days after 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.

At the November 15, 2016 penalty hearing, Counsel for the College presented three cases: Ontario College of Teachers v. Calautti, 2010 ONOCT 5 (“Calautti”); Ontario College of Teachers v. Keyte, 2013 ONOCT 56 (“Keyte”); and Ontario College of Teachers v. Lemieux, 2015 ONOCT 50 (“Lemieux”).

In Calautti, the parties submitted a statement of uncontested facts and a plea of no contest outlining the fact that the member had engaged in an inappropriate personal relationship with a male student. A criminal court found the member guilty of Internet child luring, and the member was granted a conditional discharge. No evidence was presented of previous discipline from the College. The parties jointly submitted that the penalty imposed by the Committee should include: a reprimand; a one-year suspension; coursework to be completed by the member regarding appropriate boundaries in student-teacher relationships; a written certificate to be provided in advance of returning to employment from a psychologist indicating that the member was able to return to full-time classroom duties without causing risk of harm or injury to students or the school community [emphasis added]; a request that her employer conduct a performance appraisal within her first year of teaching; and publication of the finding and order in summary form in Professionally Speaking/Pour parler profession.

The Committee in Calautti accepted the plea of no contest and found the member guilty of professional misconduct. The Committee also accepted the joint submission on penalty and accepted College Counsel’s position that publication should be with name. On the issue of the risk assessment, the Committee noted that the trial judge had found that the member had a very favourable psychological assessment and was at low risk of re-offense. The Committee emphasized that the stipulation requiring a written certificate from a psychologist indicating that the member can return without posing a risk to students or the school community “is intended to reassure the public that the Member will not repeat this behaviour” (Calautti at page 15).

In Keyte, the member pled no contest and was found guilty of professional misconduct after engaging in a sexualized relationship with a student which included emails, conversations, and inappropriate pictures of the student sent to the member. The member received a reprimand, a two-year suspension, coursework, and publication with name in the College’s official publication. There was no evidence presented that the member had received prior discipline from the College.

In Lemieux, the member pled guilty to, inter alia, engaging in inappropriate sexual relationships with a number of students short of physical sexual relationships. The parties presented evidence from an expert that the member was not at risk of re-offending. No evidence was presented that the member had received prior discipline from the College.

After hearing submissions by both parties, the Committee expressed its concern that the Joint Submission on Penalty brought the administration of justice into disrepute because it did not sufficiently protect the public and would erode public confidence in the disciplinary process at the College. The Committee observed that the case at bar involved the sexual and psychological abuse of a female student. Furthermore, the Member had previously been found guilty of misconduct by the College in a case involving boundary violations with a female. The Committee found that, in these circumstances, the proposed penalty did not offer adequate safeguards to protect students, staff and the school community against the risk of re-offense by the Member.

In coming to its conclusion, the Committee noted that, in cases cited by College Counsel, expert assessment reports were utilized to ensure that the goal of public protection was met. These assessments served the purpose of identifying whether there was a risk that the member would reoffend. In Calautti, a psychological assessment was completed in the member’s criminal proceeding. In that case, the Committee found that the favourable psychological assessment was a factor supporting the joint agreement on penalty. As well, in Calautti, it was a condition of the penalty order that the member provide a written certificate from a psychologist indicating that the member was able return to full-time classroom duties without causing risk of harm or injury to students or the school community. Similarly, in Lemieux, there was evidence from an expert that the member was not at risk of reoffending.

The Committee invited the parties to make submissions on the possibility that the joint submission be amended to include a requirement that the Member complete a psychological risk assessment which would allow an expert to opine on whether, after completing the suspension and coursework, the Member would be able to return to full-time classroom duties without causing risk of harm or injury to students or the school community.

The parties declined to change their proposed penalty. Counsel for the College argued that the penalty proposed met the sentencing goals of general deterrence, specific deterrence, denunciation, rehabilitation and protection of the public. Counsel argued that the coursework would serve the purpose of remediating the Member’s practice and would ensure that the public would be protected in the future. Counsel pointed to the fact that the Member had not completed the assigned coursework from his first discipline hearing when he engaged in the misconduct at issue, and therefore did not have the benefit of that corrective action at the time. College Counsel also argued that the boundaries course ordered in the case at bar would be different because it would deal with boundaries vis-à-vis students. She stated that the coursework ordered would serve the purpose of reforming his behaviour.

The Committee rejected the Joint Submission on Penalty presented by the parties. Pursuant to Rule 3.04(4) of the Rules of Procedure of the Discipline Committee and of the Fitness to Practise Committee, the Committee determined that the matter would proceed as a contested penalty hearing on a later date.

SECOND SET OF SUBMISSIONS ON PENALTY BY COLLEGE COUNSEL

The parties reconvened to make submissions on penalty on April 6, 2017.

Counsel for the College argued that a penalty consisting of a reprimand, 2 years’ suspension, and coursework continued to be the appropriate penalty. Counsel argued that the coursework would address the issue of the Member’s recidivism. She argued that the Member’s previous order for coursework should not be considered as an indicator that coursework was not effective in remedying the Member’s behaviour, since the Member had not completed the coursework ordered by a prior Discipline Committee panel - on May 2, 2014 - at the time the relationship with the student occurred, which relationship ended on May 12, 2014. As a result, according to College Counsel, the Member had not yet received the benefit of the coursework. College Counsel submitted a signed letter by Chris Goodsir, OSSTF Executive Assistant, indicating that he provided the Member with a pre-approved course on Professional Boundary Issues and Professional Ethics on March 29, 2017 (Exhibit 5, Tab A).

College Counsel also argued that the finding of professional misconduct made by the Discipline Committee on May 2, 2014 involved conduct which was different in nature than the misconduct at issue in the case at bar. College Counsel characterized the previous discipline as the Member’s inability to “take no for an answer” from a female colleague.

Counsel for the College also identified other mitigating factors set out in the Supplementary Agreed Statement of Facts on Penalty (Exhibit 5) which weighed against a harsher sanction, including the fact that the Member pled guilty promptly to the allegations against him, and the fact that the student was [XXX] years old when the “worst” events happened between her and the Member.

Counsel for the College also argued that there was no psychiatric component to the Member’s misconduct, and that his hospitalization was due to the effects the Member experienced once his affair with the student was discovered. Counsel argued that it was therefore inappropriate to order a psychiatric assessment of risk in this case.

College Counsel reviewed a wide range of cases in order to provide the Committee with an overview of the different penalties ordered by the Committee in order to address the sentencing goals of specific deterrence, general deterrence, rehabilitation and protection of the public in similar circumstances. Counsel acknowledged that Calautti, Keyte, and Lemieux were the most similar cases to the case at bar, though she emphasized that those cases had psychiatric components which, in her submission, were absent in this case. The additional cases reviewed by College Counsel are as follows: Ontario College of Teachers v. Pott, 2014 ONOCT 83; Ontario College of Teachers v. Webster, 2015 ONOCT 86; Ontario College of Teachers v. Bussineau, 2014 ONOCT 17; Ontario College of Teachers v. Park, 2012 ONOCT 34; Ontario College of Teachers v. Foster, 2013 ONOCT 23; Ontario College of Teachers v. Ward, 2013 ONOCT 93; Ontario College of Teachers v. Ste-Croix, 2015 ONOCT 75; Ontario College of Teachers v. McCalla, 2015 LNONCTD 53; Ontario College of Teachers v..Gerwin, 2014 ONOCT 42; Ontario College of Teachers v. Gerwin, 2017 ONOCT 15; Ontario College of Teachers v. Gowans, 2014 ONOCT 45; Ontario College of Teachers v. Bradford, 2011 ONOCT 4; Ontario College of Teachers v. Khan, 2013 ONOCT 57; Ontario College of Teachers v. Schnabel, 2013 ONOCT 82; and Ontario College of Teachers v. Rouhani, 2015 ONOCT 69.

SECOND SET OF SUBMISSIONS ON PENALTY BY MEMBER’S COUNSEL

Member’s Counsel agreed with College Counsel that an order for a reprimand, a two-year suspension and coursework was the appropriate penalty in this case. Member’s Counsel argued that course work would rehabilitate the Member. He characterized the Member’s actions as an “error in judgment”, and argued that the Member was willing to take responsibility for his actions and was receptive to professional guidance. Member’s Counsel pointed to the fact that the Member had completed the remedial course ordered as part of his penalty in the first matter as proof that the Member was receptive to training.

Member’s Counsel also adopted the position of College Counsel that, because of the chronology of the earlier discipline hearing and the misconduct at issue, the Member would not have had the opportunity to benefit from the remedial aspects of the first ordered coursework before the events with the Student occurred.

Member’s Counsel also argued that the misconduct in the first case was different from the misconduct in the present case, as it involved boundary violations with a colleague rather than a student.

Member’s Counsel submitted that a psychiatric risk evaluation was not appropriate, taking the position that there was no causal link between a mental health condition and the Member’s conduct. Member’s Counsel argued that a risk evaluation would not be able to address whether the Member would repeat his behaviour in the future.

As well, Member’s Counsel argued that a risk evaluation was overly invasive of the Member’s privacy. While he acknowledged that there was a difference between a full psychiatric assessment and a request for assessment on the risk of reoffending, Member’s Counsel submitted that even the latter assessment would be too invasive.

Member’s Counsel cited the following additional cases in support of his position: Ontario College of Teachers v. Guibord, 2009 ONOCT 24; Ontario College of Teachers v. Guibord, 2009 ONOCT 25; Ontario College of Teachers v. Biggs, 2014 ONOCT 7; Ontario College of Teachers v. Rosewell, 2016 ONOCT 46; and Ontario College of Teachers v. Handscomb, 2014 ONOCT 114.

DECISION ON PENALTY

The Committee makes the following order as to penalty:

The Committee directs that the Member appear before the Committee within six months of the date of this order, 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”);
The Committee directs the Registrar to suspend the Certificate of Qualification and Registration of the Member for a period of 24 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;
The Committee directs 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 after the date of the Order of the Discipline Committee, the Member shall enrol in and successfully complete at his own expense, a course or courses of instruction pre-approved by the Registrar regarding: the College’s Ethical Standards of Care, Respect, Trust and Integrity; and maintaining professional boundaries with students, subject to the following conditions:

(b) within 30 days after 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 stating whether the course provider is confident that students and staff will be safe if the Member returns to the school community. Specifically, the course provider will report on the rehabilitation of the Member and whether the course provider believes he will be capable of meeting the College’s Ethical Standards and respecting boundaries in the future.

(c) In addition, the Member is ordered to provide (within 10 days of starting any new employment) proof acceptable to the Registrar that he has provided his course assignments and the course provider’s written report referenced in subsection (b) to the administration of any school where the Member is to be employed. This will assist the administration supervising the Member to monitor the Member’s commitment to complying with the College’s Ethical Standards and the maintenance of professional boundaries.

REASONS FOR PENALTY DECISION

Reprimand

The Committee is of the view that a reprimand is an appropriate sanction in this case. The College’s Ethical Standards for the Teaching Profession instruct members that they must abide by the following standards in their practice:

Care

The ethical standard of Care includes compassion, acceptance, interest and insight for developing students’ potential. Members express their commitment to students’ well-being and learning through positive influence, professional judgment and empathy in practice.

Respect

Intrinsic to the ethical standard of Respect are trust and fair-mindedness. Members honour human dignity, emotional wellness and cognitive development. In their professional practice, they model respect for spiritual and cultural values, social justice, confidentiality, freedom, democracy and the environment.

Trust

The ethical standard of Trust embodies fairness, openness and honesty. Members’ professional relationships with students, colleagues, parents, guardians and the public are based on trust.

Integrity

Honesty, reliability and moral action are embodied in the ethical standard of Integrity. Continual reflection assists members in exercising integrity in their professional commitments and responsibilities.

The Member’s actions in conducting an inappropriate relationship with a student were a clear violation of the values of Care, Respect, Trust, and Integrity. The Committee rejects Member’s Counsel’s characterization of the Member’s conduct as an “error in judgement”. Rather, the Member’s conduct was a failure to meet the ethical responsibilities of a teacher. The Member emotionally manipulated and abused a student through his behaviour. He breached the trust that was placed in him as an educator.

A reprimand will allow the Committee to emphasize to the Member why these ethical values are important, and explain how he failed to meet these principles in the past. As well, attending for a reprimand will serve to heighten the Member’s awareness that the profession denounces his misconduct and to remind him that the College expects him to demonstrate responsibility for reforming his practice.

Two-year suspension

The Committee is of the view that the maximum suspension available to the Committee is an appropriate penalty in this case. The Committee would have ordered revocation rather than a suspension, given the seriousness of the case and the Member’s previous misconduct, if the Committee believed that there was no hope for the Member’s rehabilitation. However, after careful consideration, the Committee accepted the submissions made by counsel for both parties that coursework, when properly designed and administered, will assist the Member’s return to the profession and safeguard the public interest. The Committee’s decision on coursework will be discussed further below. The following addresses the Committee’s reasons for the two-year suspension.

A two-year suspension is appropriate given that the Member’s behaviour involved the sexual abuse of a student, an extremely damaging act which is the antithesis of the caring and supporting role expected of a teacher. Parents send their children to school with the expectation that they will be safe. The Member violated this trust place in him by engaging in a sexualized relationship with a student.

As well, his actions were deeply psychologically abusive. The Member told the Student, “If I lose you, I’ll die”. He tried to isolate the Student by asking her to meet privately and also by asking her if they could go for a drive. The Student was uncomfortable and fearful that the Member would do something that would affect his safety and well-being. When he was hospitalized due to mental illness, he told the Student that he was going to kill himself. After he had been contacted by the vice-principal regarding the investigation into his conduct, the Member contacted the Student to tell her that he was panicking and was going to kill himself, and then pressured her to cover up their affair. The Student did not want to be responsible if the Member lost his job, and told him she would try to keep him safe during the investigation. All of the above conduct by the Member is evidence that the Student was in an abusive relationship with him, and that she acted to try to protect her abuser despite the fact that the things he was asking her to do were wrong. Moreover, the Member showed no concern for the effect his actions were having on the Student, instead fixating on his own suffering and the potential ramifications to his career.

The Member used his position as a teacher to exert his influence over a student. He acted in a manner which would reasonably have made the Student feel that she was responsible for the Member’s life or death. Such severe emotional blackmail was a gross violation of the Member’s duty to safeguard his students’ psychological well-being.

As well, a long suspension is appropriate given the Member’s recidivism. The Member committed the same type of behaviour for which he previously received discipline – namely, boundary violations of a sexual nature against females at the school. The Member’s previous conduct was very serious, involving harassment which occurred over an 18-month period and which made his colleague fear for her safety. The Member’s conduct in this case was even more serious for the purpose of the Committee’s penalty process because it was committed against a student. As well, the sexual abuse of the Student in this case occurred while the Member was being disciplined at the College. He had already been disciplined by his school, and had already been found guilty of criminal harassment in court. The Member’s behaviour in the first matter has been denounced by his employer, by the police and by the College. Yet, in spite of all of this, the Member was utterly insensitive to the rules prohibiting the psychological and sexual abuse of students.

There are very few mitigating factors in this case, other than the fact that the Member pled guilty promptly. There was an absence of evidence showing awareness on the part of the Member that his behaviour was wrong and that he knew he was subjecting the Student to harm.

A 24-month suspension will act as both a specific and general deterrent, communicating to the Member and the profession at large that the sexual and emotional abuse of students warrant severe consequences.

Coursework

The penalty imposed by the Committee is aimed at providing assurances that should the Member return to the classroom, the school community will not be placed at risk. The original joint proposal put forward by the parties was rejected because the Committee was not confident that the sanctions set out, including the scope of the coursework, would prevent the Member from reoffending. The Committee found that the risk to students and staff was not adequately addressed.

The Committee notes that there is evidence in the Agreed Statement of Facts that the Member suffered from mental illness and was hospitalized for this illness. Whether the Member’s mental illness was a cause or effect of his misconduct is not relevant. There was evidence presented that he was hospitalized for mental illness, which made an order for a psychological risk assessment a reasonable option for addressing the Member’s future risk if he returned to teaching.

However, upon review of the parties’ submissions, the Committee determined that the risk of reoffending could be addressed through specific requirements in the coursework, and through the requirement that the employer be made aware of the past misconduct and the Member’s commitment to reforming his practice. The Committee is of the view that coursework can be ordered in a manner which will make the Member accountable to show that he has been rehabilitated by the process and that he does not pose a risk to students, staff and the public.

To this end, the Committee has expanded upon the terms, conditions and limitations proposed by the parties in order to order coursework and associated conditions which will prevent a repeat of the Member’s behaviour. The Member is required to complete coursework on both the College’s Ethical Standards of Care, Respect, Trust and Integrity, and coursework regarding maintaining appropriate boundaries with students.

Further, the syllabus proposed by the course practitioner must include assignments which require the Member to show evidence of insight into his behaviour and resolve on his part not to repeat his misconduct. As well, the course provider must report on the rehabilitation of the Member and his or her assessment of whether students and staff will be safe if the Member returns to a teaching position.

Finally, the Member must provide his course assignment and the report of the course provider to any school employer. The Committee found it essential that, should the Member wish to return to teaching, his employer would receive the course provider’s report, as well as the Member’s reflections and insights into his past misconduct. The Committee expects that a future employer will then have the information necessary to assist with the Member’s successful return to the classroom and to safeguard the learning community

The Committee is of the view that these conditions made as part of the coursework order will promote meaningful rehabilitation on the part of the Member, and will provide sufficient oversight to prevent instances of re-offense.

The Committee makes the following obiter comments in relation to the issue of the balancing of a Member’s privacy against the aim of protecting the public through the imposition of a psychiatric risk assessment. Member’s Counsel argued that the invasion of the Member’s privacy caused by ordering a psychiatric risk assessment outweighed the goal of protecting the public. The Committee disagrees with this position. Safeguards can be put into place so that a risk assessment would be used for the limited purpose of establishing the risk of recidivism, without being unduly intrusive of the Member’s privacy. Such safeguards may include limiting the individuals who can access the report, and tailoring the amount of medical information contained in the report. As well, the report would be used only for the purpose of informing the Registrar whether the Member is not a risk to the public if he returns to teaching, rather than providing any additional information about the Member’s psychological health. However, the Committee recognizes that this issue is moot because of its finding that the risk of recidivism can be adequately dealt with through appropriate coursework and the judicious supervision by his employer.

The Committee is satisfied that the penalty is appropriate in the circumstances and meets the principle of serving and protecting the public interest.

Date: May 29, 2017

Tom Potter Chair, Discipline Panel

______________________________ Alexander (Sandy) Bass

Member, Discipline Panel

Sara Nouini

Member, Discipline Panel