ATTENTION: In accordance with subsection 486.4 of the Criminal Code of Canada and pursuant to the order handed down by the Honourable Justice G. Renaud on October 3, 2012, any information that could identify the victim in this matter shall not be published.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 Rémi Gagnon, a member of the Ontario College of Teachers.
PANEL: Robert Gagné, Chair Brigitte Bidal Piquette, OCT Stéphane Vallée, OCT
BETWEEN: ) Christine Lonsdale, ) McCarthy Tétrault LLP, ONTARIO COLLEGE OF TEACHERS ) for the Ontario College of Teachers ) assisted by Annie Lacroix, ) Law Clerk – and – ) ) Rémi Gagnon RÉMI GAGNON ) was not present or represented (CERTIFICATE #106296) ) ) Renée Kopp, ) Jones Litigation Counsel LLP, ) Independent Legal Counsel ) ) Heard: December 14, 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 14, 2016. A Notice of Hearing dated January 29, 2015 (Exhibit 1) was served on Rémi Gagnon (“the Member”), requesting his presence on March 31, 2015 to set a date for hearing, and specifying the charges. The hearing was subsequently set for December 14, 2016.
The Member was not in attendance for the hearing and did not have legal representation. He did, however, prepare some written remarks concerning the penalty for submission to the Committee.
ALLEGATIONS
The allegations against the Member in the Notice of Hearing are as follows:
IT IS ALLEGED that Rémi Gagnon is guilty of professional misconduct as defined in subsections 30(2) and 40 (1.1) of the Ontario College of Teachers 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 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 as defined in Part 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 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);1
(f) 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);2
(g) 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
(h) he engaged in conduct unbecoming a member, contrary to Ontario Regulation 437/97, subsection 1(19).
STATEMENT OF UNCONTESTED FACTS
Counsel for the College advised the Committee that an agreement had been reached on the facts and introduced a Statement of Uncontested Facts and Plea of No Contest (Exhibit 2), which provides as follows:
Rémi Gagnon is a member of the College. A copy of the Certificate of Qualification and Registration issued by the Ontario College of Teachers is attached to this document as Appendix A.
Between October 2005 and September 2013, the Member was employed by the Conseil des écoles publiques de l’Est de l’Ontario as a teacher in Ottawa.
At all material times, Student 1 was a [XXX] school student in a school in the Conseil des écoles catholiques du Centre-Est, in Ottawa.
In 2007, when Student 1 was [XXX] years old and a minor, the Member engaged in an inappropriate personal relationship with Student 1. The relationship between the Member and Student 1 was sexual in nature.
The Member’s misconduct comes under the category of sexual abuse and sexual misconduct identified by the College. The Member should not have engaged in a personal relationship with the Student. The Member should not have engaged in a sexual relationship with the Student. A copy of the College’s Professional Advisory, dated September 27, 2002, is attached to this document as Appendix B.
On November 15, 2011, the Member was charged with multiple counts of sexual exploitation under section 153(1) of the Criminal Code of Canada, in connection with the relationship between the Member and the Student.
On August 27, 2013, the Member was found guilty of sexual exploitation, contrary to section 153(1) of the Criminal Code of Canada.
On March 9, 2016, the Superior Court allowed the Member’s appeal and ordered a new trial which has not yet taken place.
In the trial before the Ontario Court of Justice, the judge handed down an order under section 486.4 of the Criminal Code of Canada, directing that any information that could identify Student 1 was not to be published or disseminated. The parties have not agreed as to the effect of the order on the decision of the Discipline Committee; submissions will therefore be made to the Discipline Committee on this matter.
PLEA OF NO CONTEST
By this document, the Member admits the truth of the facts and exhibits referred to in the paragraphs above (the “Uncontested Facts”).
The Member acknowledges that the Uncontested Facts above constitute professional misconduct and admits 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). The Member further acknowledges that the alleged conduct constitutes sexual abuse as defined in section 1 and subsection 40 (1.1) of the Act.
The Member states that he:
(a) understands the nature of the allegations against him;
(b) understands that, by signing this document3, he is consenting to the evidence as set out in the Uncontested Facts being presented to the Discipline Committee;
(c) understands that, by pleading no contest to the allegations, he is waiving the right to require the College to prove the case against him and the right to have a hearing;
(d) 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, Professionally Speaking/Pour parler profession;
(e) understands that any agreement between the parties with respect to penalty does not bind the Discipline Committee;
(f) understands and acknowledges that he is executing this Agreement voluntarily, unequivocally and without the advice of legal counsel.
- In light of the aforementioned Uncontested Facts and the Plea of No Contest, the College and the Member submit that the Discipline Committee should find that the Member’s actions constitute professional misconduct.
ORDER OF NON-PUBLICATION
In the Member’s criminal trial before the Honourable Justice G. Renaud of the Ontario Court of Justice on October 3, 2012, Justice Renaud made an order of non-publication and non-disclosure pursuant to subsection 486.4 of the Criminal Code of Canada (see Exhibit 4). Specifically, Justice Renaud stated:
Pursuant to section 486 and the Supreme Court’s decision in Adams, I am going to prohibit any publication or communication of a permanent nature, that is, on the internet [or] things like Facebook, which could directly or indirectly identify the youth who is named (see Exhibit 4, page 4). [unofficial translation]
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. The order of non-publication ought not to protect the Member’s identity, for the reasons set out below.
DECISION
Counsel for the College requested that the allegations of professional misconduct set out in paragraphs (e) and (f) of the Notice of Hearing, to the effect that the Member contravened subsections 1(16) and 1(17) of Ontario Regulation 437/97, be withdrawn. The Committee granted the request.
Having considered the Statement of Uncontested Facts and Plea of No Contest and the submissions by College Counsel, the Committee finds that the facts support a finding of professional misconduct. In particular, the Committee finds that Rémi Gagnon was guilty of
professional misconduct, contrary to Ontario Regulation 437/97, subsections 1(5), 1(7.2), 1(7.3), 1(15), 1(18) and 1(19), as alleged in the Notice of Hearing.
REASONS FOR DECISION
The Member admitted the truth of the facts and exhibits referred to in paragraphs 1 to 9 of the Statement of Uncontested Facts and Plea of No Contest, and pleaded no contest to the allegations of professional misconduct against him. He acknowledged, and the Committee accepts, that the Uncontested Facts constitute 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 4 and 5 of the Statement of Uncontested Facts and Plea of No Contest show that the Member failed to maintain the standards of the profession, contrary to Ontario Regulation 437/97, subsection 1(5).
Paragraphs 4 and 5 of the Statement of Uncontested Facts and Plea of No Contest show that the Member abused a student psychologically or emotionally, contrary to Ontario Regulation 437/97, subsection 1(7.2).
Paragraphs 4 and 5 of the Statement of Uncontested Facts and Plea of No Contest show that the Member abused a student sexually, contrary to Ontario Regulation 437/97, subsection 1(7.3).
Paragraphs 4 and 5 of the Statement of Uncontested Facts and Plea of No Contest show 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 and 5 of the Statement of Uncontested Facts and Plea of No Contest show 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 and 5 of the Statement of Uncontested Facts and Plea of No Contest show that the Member engaged in conduct unbecoming a member, contrary to Ontario Regulation 437/97, subsection 1(19).
SUBMISSIONS ON PENALTY
Counsel for the College submitted that revocation of the Member’s Certificate of Qualification and Registration and publication of the Committee’s decision and its reasons, and a summary of the decision and reasons with the Member’s name, pursuant to section 45.1 of the Act, is an appropriate penalty. The College submits that the Committee ought not to make a publication order because it no longer has discretion in that regard. Publication has been compulsory in all cases since December 5, 2016, in accordance with the recent amendments to the Act.
Revocation
The College submits that revocation would be an appropriate penalty in the Member’s case. Although the compulsory revocation referred to in subsection 30.2 of the Act does not apply in this matter because the Uncontested Facts do not meet the requirements of subsection 30.2(2), College Counsel claims that revocation is appropriate in all cases involving sexual relations between teachers and students. The College produced the following case law in support of its position that revocation is an appropriate penalty in such circumstances: Ontario College of
Teachers v. Matejovic, 2012 ONOCT 24 and Ontario College of Teachers v. Buchanan, 2014 ONONCT 13.
Publication
The College submits that the Committee ought not to make a publication order because publication with the Member’s name is now compulsory under the recent amendments to the Act, and that the Committee should deal with the issue in its reasons. Counsel for the College also produced for the Committee the Member’s written statements arguing that the publication of his name would be inappropriate for several reasons, namely, 1) because he has not paid his dues and is therefore no longer a member; 2) because of Justice G. Renaud’s order of non-publication; and 3) in accordance with the principle of non-retroactivity of the law.
The College disagrees with the Member’s arguments concerning publication. Firstly, the Member is a member of the College even though he is no longing paying dues. Paragraph 1 of the Uncontested Facts states that he is a member of the College (see Exhibit 2) and a copy of his Certificate of Qualification and Registration issued by the College is attached to Exhibit 2.
Secondly, College Counsel argued that Justice G. Renaud’s non-publication order clearly indicates that the objective is to protect the identity of the victim, not the Member (see Exhibit 4). Because the Uncontested Facts are ambiguous and non-specific, publication of the Member’s name would not identify Student 1. Although the Member produced for the Committee a decision by the Ontario Court of Justice in which his name is not published, the College maintains that the facts in this decision are highly specific and the online legal database may not have published his name in order to protect the identity of his victim. Moreover, the College produced the same decision for the Committee, from a different online legal database in which the Member’s name is published (see Exhibit 5). According to the College, Justice G. Renaud’s non-publication order makes no attempt to protect the Member’s identity.
The College introduced the following case law in support of its position that the publication of a member’s name is appropriate in similar circumstances: Ontario College of Teachers v. Ashley, 2012 ONOCT 3 (“Ashley”). According to College Counsel, the key issue is the scope of the order of non-publication. In Ashley, as in the Member’s case, it is clear that it is not the member’s name that needs to be protected. As a counter-example, College Counsel produced for the Committee another decision in which the member’s name was not published because the Ontario Court of Justice judge had specifically ordered the non-publication of the defendant’s name (the member in this case). In the Member’s case, the College argued there was no reason not to publish the member’s name.
Thirdly, as regards the non-retroactivity of the law, College Counsel argues that the Act is clear. Publication with name is compulsory pursuant to subsection 45.1 of the Act, and subsection 45.1 applies as of the “reference date” (December 5, 2016), pursuant to subparagraph 63.1(2)7 of the Act. The Committee is required to comply with the recent amendments to the Act, and it is the College’s responsibility to enforce the Act.
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
The Committee finds that the revocation of the Member’s Certificate of Qualification and Registration is appropriate. The Member’s conduct with regard to Student 1 is reprehensible. Sexual relationships between teachers and students are strictly prohibited and have severe consequences. By engaging in a sexual relationship with Student 1, the Member abused the trust and authority associated with his role as a teacher and undermined public confidence in the teaching profession. As a result, the Member has waived the privilege of holding a Certificate of Qualification and Registration.
In the matter of publication of the Member’s name, the Committee has read his written submissions carefully, but rejects his arguments. Firstly, the Member is a member of the teaching profession, even though his membership status is “suspended for non-payment of dues.” The Statement of Uncontested Facts and Plea of No Contest states clearly that he is still a member of the College (see Exhibit 2). It would be preposterous to allow members to escape the consequences of a discipline hearing merely by no longer paying their dues to the College.
Secondly, Justice G. Renaud’s order of non-publication in no way states that the Member’s identity is to be protected. It is the identity of the Member’s victim that is to be protected. The Committee finds that the Uncontested Facts were drafted in a sufficiently ambiguous, non-specific manner that publication of the Member’s name would not identify Student 1. In the Committee’s estimation, Justice G. Renaud’s order of non-publication will be observed, even if the Member’s name is published.
Thirdly, the Committee does not believe that publication of the Member’s name would violate the principle of non-retroactivity of the law. Section 45.1 of the Act stipulates that publication is now compulsory, and the section applies as of the “reference date” (December 5, 2016), pursuant to subparagraph 63.1(2)7 of the Act. The Committee no longer has discretion as to publication.
If the Committee had misinterpreted the application of subsection 45.1, it would have ordered the publication of the Member’s name. Publication of the Member’s name conveys to the profession the serious nature of his misconduct and its consequences. It acts as a specific deterrent to the Member as it holds him accountable for his actions. It also serves as a general deterrent by reminding the members of the teaching profession that such behaviour is not tolerated. Moreover, publishing the Member’s name ensures the transparency of the discipline process and reassures the public that the teaching profession acts decisively and does not shield its members when matters of this nature are brought to its attention.
The Committee is satisfied that the penalty is appropriate in the circumstances, and that it serves and protects the public interest.
Date: January 5, 2017
Robert Gagné
Chair, Discipline Panel
Brigitte Bidal Piquette, OCT
Member, Discipline Panel
Stéphane Vallée, OCT
Member, Discipline Panel