WARNING: Pursuant to section 32.1 of the Ontario College of Teachers Act, 1996, no person shall publish the identity of, or any information that could disclose the identity of, any student involved in this matter.
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
Jacqueline Elizabeth Lavigne, a member of the Ontario College of Teachers.
PANEL: Tom Potter, Chair Ann Ciaschini, OCT Irene Dembek, OCT
BETWEEN: ) ) Ava Arbuck,
ONTARIO COLLEGE OF TEACHERS ) McCarthy Tétrault LLP, ) for Ontario College of Teachers,
) assisted by Shannon Baker,
– and – ) Law Clerk
JACQUELINE ELIZABETH LAVIGNE ) Jacqueline Elizabeth Lavigne
(CERTIFICATE #486973) ) was not present or represented
) Julie Maciura,
) Steinecke Maciura LeBlanc, ) Independent Legal Counsel ) ) Heard: June 22, 2017
DECISION, REASONS FOR DECISION AND ORDER
This matter came on for hearing before a panel of the Discipline Committee (the "Committee") on June 22, 2017 at the Ontario College of Teachers (the "College") at Toronto.
A Notice of Hearing (Exhibit 1) dated June 17, 2015 was served on Jacqueline Elizabeth Lavigne (the "Member") requesting her attendance before the Committee on July 7, 2015 to set a date for a hearing, and specifying the charges. The hearing was subsequently set for June 22, 2017.
The Member was not in attendance for the hearing and did not have legal representation.
Counsel for the College submitted an Affidavit of Shannon Baker (Exhibit 2) sworn June 16, 2017, to prove that the Member had been informed of the allegations against her, the time and date of the hearing, as well as the penalty being sought. In this affidavit, Ms. Baker, a law clerk with McCarthy Tétrault LLP, outlines her communications with the Member and provides proof of service of all required documents. Based on this affidavit, the Committee was satisfied that the Member had been properly served with the Notice of Hearing and all disclosure documents and was aware of the time and date of the hearing and the penalty being sought. The Member did not appear. The Committee therefore heard this matter in the absence of the Member.
PUBLICATION BAN
The Committee received a certified copy of the transcript of the Reasons for Judgment from the Member's criminal proceeding before Justice P.J. Flynn dated April 14, 2014 (Exhibit 2 at Tab B). In these proceedings before the Superior Court of Justice, an order restricting publication was made pursuant to section 486.4 of the Criminal Code of Canada.
College Counsel submitted that the Committee ought to similarly order a publication ban pursuant to section 32.1 of the Ontario College of Teachers Act, 1996 (the "Act"). The Committee accordingly orders that no person shall publish the identity of, or any information that could disclose the identity of, any student involved in this matter.
THE ALLEGATIONS
The allegations against the Member in the Notice of Hearing are as follows:
IT IS ALLEGED that Jacqueline Elizabeth Lavigne is guilty of professional misconduct as defined in subsections 30(2) and 40(1.1)1 of the Act in that:
(a) she failed to maintain the standards of the profession, contrary to Ontario Regulation 437/97, subsection 1(5);
(b) she abused a student or students psychologically or emotionally, contrary to Ontario Regulation 437/97, subsection 1(7.2);
(c) she abused a student or students sexually, contrary to Ontario Regulation 437/97, subsection 1(7.3) and/or engaged in sexual abuse of a student or students as defined in section 1 of the Act;
(d) she 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) she contravened a law, the contravention of 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);
(f) she contravened a law, the contravention of which may cause a student to be put at or to remain at risk, contrary to Ontario Regulation 437/97, subsection 1(17);
(g) she committed acts that, having regard to all the circumstances, would reasonably be regarded by members as disgraceful, dishonourable or unprofessional, contrary to Ontario Regulation 437/97, subsection 1(18); and
(h) she engaged in conduct unbecoming a member, contrary to Ontario Regulation 437/97, subsection 1(19).
PARTICULARS OF THESE ALLEGATIONS ARE AS FOLLOWS:
Jacqueline Elizabeth Lavigne is a member of the Ontario College of Teachers.
At all material times, the Member was employed by the Waterloo Catholic District School Board as a teacher at [XXX] School (the "School") in[XXX], Ontario.
During the 2011-2012 academic year, the Member taught Grade [XXX] [XXX]to Student 1, a [XXX]-old male student at the School.
In or about September and October 2011, the Member engaged in an inappropriate personal relationship with Student 1 that included but was not limited to:
(a) inappropriate and/or sexually suggestive electronic communications;
(b) sent Student 1 one or more inappropriate pictures of herself;
(c) invited Student 1 to her home;
(d) allowed Student 1 into her home.
- On or about October 29, 2011, the Member engaged in a sexual relationship with Student 1 that included but was not limited to:
(a) kissing;
(b) fellatio;
(c) sexual intercourse.
On or about April 14, 2014, in the Superior Court of Justice, the Member was found guilty of sexual exploitation, contrary to Section 153 of the Criminal Code (Canada).
The Member's employment with the Board was terminated effective April 29, 2014.
MEMBER'S PLEA
As the Member was not present and did not have legal representation, the Committee proceeded on the basis that the Member denied the allegations set out in the Notice of Hearing. The Chair, 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 Jacqueline Elizabeth Lavigne (Exhibit 3), which indicates that the Member was a member of the College at the time of the alleged events. The College also entered into evidence a Brief of Court Documents - Her Majesty the Queen v. Jacqueline Elizabeth Lavigne (Exhibit 4), which contains the following documents:
Certified Copy of Indictment;
Certified Copy of Probation Order, dated September 26, 2014;
Certified Copy of Prohibition Order, dated September 26, 2014;
Reasons for Judgment by the Honourable Mr. Justice P.J. Flynn, Superior Court of Justice, Kitchener, Ontario, dated April 14, 2014;
Reasons for Sentence by the Honourable Mr. Justice P.J. Flynn, Superior Court of Justice, Kitchener, Ontario, dated September 26, 2014; and
Endorsement of the Court of Appeal for Ontario, released December 16, 2015.
SUBMISSIONS ON FINDING
Submissions by College Counsel
College Counsel described the Member's criminal case in detail and submitted that the Member had an inappropriate personal relationship and sexual contact with a Grade [XXX] student. According to College Counsel, the Member's conduct, as detailed in the record of the criminal proceedings (see Exhibit 4) and the resultant criminal conviction, provides 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 her criminal proceedings.
College Counsel provided an overview of the evidence presented during the criminal proceedings, and organized her submissions according to the following three categories of evidence: 1) technical evidence; 2) evidence of Student 1 regarding the events of October 29, 2011; and 3) testimony of other student witnesses.
- Technical Evidence
College Counsel submitted that technical evidence consisted of testimony concerning a significant number of Blackberry messages between the Member and Student 1. Evidence established that the PIN code belonging to the Member was used to both send and receive messages. In addition, evidence presented at trial demonstrated that over a weekend, the Member sent 191 messages to Student 1, who responded 119 times, and the next day the Member sent the student 104 messages and Student 1 responded 52 times. College Counsel emphasized that the messaging was frequent and occurred during both the day and night.
- Student 1's Evidence
College Counsel submitted that Student 1 was driven by a friend to the Member's house after 11:00 p.m. on October 29, 2011, and he described in graphic terms his sexual encounter including intercourse with the Member. Student 1 also testified about the inappropriate electronic communications that he received from the Member, which included a picture of her breast that she sent to him. Student 1's testimony was neither contradicted nor successfully challenged by the defense on cross-examination. Justice P.J. Flynn of the Superior Court of Justice found Student 1 to be a "credible, trustworthy witness" and he had no doubt that the student was telling the truth (see Exhibit 4 at Tab B, page 24).
- Other Student Witnesses' Evidence
College Counsel submitted that a number of student witnesses testified about the frequency of contact between Student 1 and the Member, and they testified that they saw chats on Student 1's telephone. A student friend testified that while he was at a restaurant with Student 1, Student 1 was "constantly messaging or BBMing back and forth with [the Member] during the entire evening" (Exhibit 4 at Tab B, page 11) and that he was shown the content of some of the messages. Some examples of messages sent to Student 1 included: "I can't wait to get alone with you" and "oh, the things I would do to you" (Exhibit 4 at Tab B, page 12). College Counsel submitted that the judge characterized all of the student witnesses as "credible, believable, trustworthy witnesses" (Exhibit 4 at Tab B, page 24).
Submissions by the Member
The Committee received a written submission from the Member in which she declared her innocence and requested that the Committee find her not guilty of the allegations of professional misconduct set out in the Notice of Hearing. The panel gave little weight to the Member's submissions, given the findings of Justice P.J. Flynn of the Superior Court of Justice and the subsequent dismissal of the Member's appeal of the conviction and sentence by the Ontario Court of Appeal (see Exhibit 4 at Tab E).
DECISION
Having considered the evidence, onus and standard of proof, and the submissions made by 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(16), 1(17), 1(18) and 1(19). The Member also engaged in sexual abuse of a student of a nature defined in section 1 of the Act.
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 "Committee's Rules"), inter alia, the Committee accepts the Brief of Court Documents as proof, in this case, that the Member committed the criminal offences outlined therein. The Member was found guilty and convicted of sexual exploitation, contrary to Section 153 of the Criminal Code of Canada. The Ontario Court of Appeal dismissed the appeal of the Member's conviction and sentence and no further appeal is available.
In addition, pursuant to Rule 13.04 of the Committee's Rules, the Committee admits as ancillary to the certified copy of the Indictment, the findings of fact contained in the related decision before the Superior Court of Justice involving the Member. The Committee further admits as incidental to the certified copy of the Indictment, transcripts of the proceedings at which the conviction occurred, for the purposes of explaining the finding of guilt.
Based on the evidence contained within the Brief of Court Documents, the College has proven the allegations set out in the Notice of Hearing, on a balance of probabilities. The Member had sexual intercourse with Student 1, a [XXX]-old student of hers, at her home on the night of October 29, 2011. Prior to October 29, 2011, the Member engaged in prolonged electronic communications of a sexual nature with Student 1. Hundreds of messages were exchanged between the Member and Student 1. Classmates of Student 1 had seen sexually explicit messages sent to him by the Member (see Exhibit 4 at Tab E). This is not a case in which the Member had a momentary lapse in judgment on October 29, 2011. Her inappropriate conduct involving Student 1 persisted for two months and culminated in the sexual abuse of the student.
As stated by Justice P.J. Flynn in his reasons for sentence, the Member's conduct was "an egregious breach of a precious trust. Teachers just cannot behave like this and there is no room for error, none. It will not be tolerated by the public at all" (Exhibit 4 at Tab C, page 10). The Committee agrees entirely with this assessment and notes the devastating impact that the Member has had on Student 1. Among other things, Student 1 struggled to complete [XXX]school, he suffered [XXX], some [XXX], [XXX] issues, he needed counselling and medication, he was ashamed and embarrassed by the events at issue, and the court proceedings interfered with and affected his performance in [XXX](see Exhibit 4 at Tab C, page 9).
The Member "succumbed to her base urges" (Exhibit 4 at Tab C, page 6) and in so doing, she has abused her position of trust and authority in the gravest manner. Accordingly, the Committee finds the Member guilty of professional misconduct for having breached subsections 1(5), 1(7.2), 1(7.3), 1(15), 1(16), 1(17), 1(18) and 1(19) of Ontario Regulation 437/97.
SUBMISSIONS ON PENALTY
Counsel for the College submitted that the Member's sexual misconduct was very serious and that she demonstrated a complete disregard for Student 1's wellbeing. Given that the Member's misconduct is one of the enumerated acts of professional misconduct listed in subsection 30.2(2) of the Act, the Committee has no discretion with respect to penalty and must order that the Member receive a reprimand and that her Certificate of Qualification and Registration be revoked.
PENALTY DECISION
The Committee makes the following order as to penalty:
The Committee directs that the Member appear before the Committee within six months of the Committee's Order on a date to be arranged by the Member, 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"); and
The Registrar of the Ontario College of Teachers is directed to immediately revoke the Certificate of Qualification and Registration of the Member, which certificate the Member is to immediately surrender to the Registrar.
REASONS FOR PENALTY
The penalty, which in this case includes the revocation of the Member's Certificate of Qualification and Registration and the reprimand of the Member, is mandatory under the Act. The Committee recognizes that the Member's egregious conduct involving the sexual abuse of a student is one of the enumerated acts of professional misconduct listed in subsection 30.2(2) of the Act. Pursuant to subsection 30.2(1) of the Act, the Committee therefore must make an order: 1) requiring that the Member be reprimanded by the Committee; and 2) directing the Registrar to revoke any certificate held by the Member under the Act. The Committee notes that it has no discretion in this regard. The Committee denounces the Member's egregious conduct in the strongest terms.
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. However, given the publication ban set out above, no person shall publish the identity of, or any information that could disclose the identity of, any student involved in this matter.
The Committee is satisfied that the finding and the penalty is appropriate in the circumstances and meet the principle of serving and protecting the public interest.
Dated: July 20, 2017
Tom Potter Chair, Discipline Panel
Ann Ciaschini, OCT Member, Discipline Panel
Irene Dembek, OCT Member, Discipline Panel