WARNING: Pursuant to subsection 32.1(3) of the Ontario College of Teachers Act, 1996, no person shall publish the identity, 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
Craig James Lusk, OCT, a member of the Ontario College of Teachers.
PANEL: Jane Ishibashi, Chair
Colleen Landers
Ravi Vethamany, OCT
BETWEEN: ) Christine Wadsworth,
) McCarthy Tétrault LLP,
) for Ontario College of Teachers,
ONTARIO COLLEGE OF TEACHERS ) assisted by Daniela Spano,
) Law Clerk
-and- )
CRAIG JAMES LUSK ) Craig James Lusk,
(CERTIFICATE #440833) ) Self-represented
) Erica Richler,
) Steinecke Maciura LeBlanc,
) Independent Legal Counsel
) Heard: September 25-26, 2017
DECISION, REASONS FOR DECISION AND ORDER
This matter came on for hearing before a panel of the Discipline Committee (the “Committee”) on September 25, 2017 at the Ontario College of Teachers (the “College”) at Toronto.
A Notice of Hearing (Exhibit 1) dated February 11, 2016 was served on Craig James Lusk (the “Member”), requesting his presence on March 2, 2016 to set a date for a hearing, and specifying the charges. The hearing was subsequently set for September 25, 2017 and it continued on September 26, 2017.
The Member was self-represented but he was not in attendance during the hearing.
Counsel for the College submitted an Affidavit of Daniela Spano (Exhibit 2) sworn on September 22, 2017, to prove that the Member had been informed of the allegations against him, the time and date of the hearing, as well as the penalty being sought. In this affidavit, Ms. Spano, 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 for his hearing and the Committee therefore heard this matter in the absence of the Member.
PUBLICATION BAN
College Counsel requested that the Committee order a publication ban to protect the identity of any students who were witnesses in the hearing or who were the subject of evidence in the hearing. Pursuant to subsection 32.1(3) of the Ontario College of Teachers Act, 1996 (the “Act”), the Committee orders that no person shall publish the identity of, or any information that could disclose the identity of, any student involved in this matter.
OVERVIEW
The allegations in this matter arose as a result of the Member’s alleged conduct during the 2013-2014 and 2014-2015 academic years. The Member is alleged to have rubbed the back of a female student’s leg during both of these academic years.
The Committee’s task is to determine whether the facts alleged by the College have been proven on a balance of probabilities and if so, whether the Member’s conduct gives rise to a finding of professional misconduct. For the reasons that follow, the Committee finds the Member guilty of professional misconduct under each head of misconduct set out in the Notice of Hearing below.
THE ALLEGATIONS
The allegations against the Member in the Notice of Hearing are as follows:
IT IS ALLEGED that the Member is guilty of professional misconduct as defined in subsections 30(2) and 40(1.1)1 of 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 physically, contrary to Ontario Regulation 437/97, subsection 1(7.1);
(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 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;
(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).
PARTICULARS OF THESE ALLEGATIONS ARE AS FOLLOWS:
Craig James Lusk is a member of the Ontario College of Teachers.
At all material times, the Member was employed by the Sudbury Catholic District School Board as a teacher at [XXX]School (the “School”) in Sudbury, Ontario.
At all material times, the Student was a female student of the School.
During the 2013-2014 academic year, the Member rubbed the back of the Student’s leg.
During the 2014-2015 academic year, the Member rubbed the back of the Student’s leg.
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.
EVIDENCE
The College called three witnesses: 1) Student A (not referred to in the Notice of Hearing); 2) Student B (not referred to in the Notice of Hearing); and 3) Principal [XXX], the School principal at the time of the events in question. Various documents were also introduced into evidence, including: Principal [XXX] investigation notes; a letter from the Children’s Aid Society of the Districts of Sudbury and Manitoulin (“CAS”); the Board’s Code of Conduct; the College’s Professional Advisory regarding Professional Misconduct Related to Sexual Abuse and Sexual Misconduct; the College’s Ethical Standards for the Teaching Profession; and the College’s Standards of Practice for the Teaching Profession.
As the Member chose not to participate in the hearing, no evidence was presented in his defence.
College Witnesses
Student A
Student A was a [XXX] student at the time of the hearing. She was a grade [XXX] student in the Member’s class during the 2013-2014 academic year. She was a student [XXX]of the Member’s while she was in the Member’s grade [XXX] and [XXX] class and for part of the following academic year (when she was in grade [XXX] and no longer in the Member’s class). She was friends with the Student (who was the recipient of the Member’s inappropriate touching as alleged in the Notice of Hearing). She explained that student [XXX] stayed in the classroom during recess to .[XXX]
Student A described the Member’s inappropriate conduct that she observed when she was in grade [XXX] and still served as a student [XXX] for the Member, despite no longer being his student. She testified that, on approximately three to seven occasions, she saw the Member rub his hand in a circular motion on the back of the Student’s upper thigh, above her knee. This occurred while the Member was sitting behind his desk and the Student was right beside him. Student A was able to see this happen because she was in front of the Member’s desk and she testified that other student [XXX] were also in the classroom at the time. No adults were in the class during any of these inappropriate touching incidents.
Student A spoke to the Student about these incidents and the Student denied their occurrence at first, but later admitted that the Member had been touching her leg. Student A explained that the Student did not tell any adults about these incidents because she was embarrassed and scared to tell an adult about what happened.
Student A testified that the Member singled out the Student in a number of ways. For example, he invited the Student to participate in special, extra-credit activities during class time and he and the Student also ran an [XXX] page together.
Student A also saw the Member get angry with the Student. When Student A and the Student were in grade [XXX] (and no longer in the Member’s class), they stopped being his student [XXX]partway through the academic year and they quit the [XXX] that he ran. The Member took the Student and another girl into his classroom and yelled at them because he was not happy that they left him to do other activities. Student A was able to hear part of this conversation in which the Member yelled at the Student because she was close to the Member’s classroom at the time, but she got scared and left before that incident ended.
Student A testified that she told her mother about these incidents and that she was interviewed by the School principal and by the CAS. No other students were present while she was being interviewed about her observations of the Member’s conduct.
Student A explained that the Member’s conduct toward the Student made her (Student A) feel nervous about seeing him at School because it was hard to predict how he would react. Student A never knew if the Member would be happy to see her or angry with her. She did not worry about the Member touching her in the way that he touched the Student because she explained that the Student was the Member’s favourite. According to Student A, the Member’s conduct affected the way that she now looks at other teachers. She now feels that she has to think seriously about whether or not she can trust her teachers.
Student B
Student B was a [XXX]-year-old student at the time of the hearing. She was a grade [XXX] student in the Member’s class during the 2013-2014 academic year. She was a student [XXX]of the Member’s while she was in the Member’s grade [XXX] and [XXX] class and at the beginning of the following academic year when she was in grade [XXX] and no longer in the Member’s class. She was friends with the Student. Student B testified that none of the student [XXX] in the Member’s class were boys.
Student B testified that, over the course of one and a half academic years (2013-2014 and the beginning of 2014-2015) and on 10-12 occasions, she witnessed the Member rub the Student’s upper thigh with two or three fingers. She testified that this occurred while the Member was sitting at his desk and the Student was leaning on his desk. Student B was able to observe this inappropriate touching because she was standing either in front of the Member’s desk or next to the Student. She added that there were other student [XXX]in the class at the time, but that there were never any adults in the room.
Student B testified that she spoke to the Student about these incidents and the Student told her that she thought it was “weird” but that she did not want to say anything about it because she did not want to upset anyone. According to Student B, the Student said that the Member’s conduct made her feel uncomfortable, but she was scared to report it. Student B explained that she thought that the Student was scared because of the “power imbalance” that existed between her and the Member. The Student was a young girl and she was worried that nobody would believe her.
Student B testified that the Member treated the Student differently than other students. For example, he sometimes whispered close to the Student’s face, and he often invited her to present her homework responses to the class on the chalkboard.
Student B also testified that she saw the Member get angry with the Student. On one occasion, the Student accidentally knocked over a Christmas tree in the class and one of the Christmas lights broke. Student B explained that the Member got very angry with the Student even though it was an accident and the light was inexpensive. Another time, Student B was in the hallway outside of the Member’s class with Student A and they saw the Member in his classroom yelling at the Student and another girl because they no longer came to his class (when they were in grade[XXX]), which the Member said was disrespectful. Student B was scared that the Member might yell at her too, so she and Student A went outside to avoid any possible confrontation.
Student B spoke to the Student about the inappropriate touching incidents and she testified that the Student was upset and felt partially responsible for the Member leaving his job at the School. Student B further testified that the Student was the Member’s favourite and that he never interacted with other students the way that he did with her.
Student B testified that she tried to avoid the Member because it made her uncomfortable that he would conduct himself in the way that he did with the Student. She described his behaviour as inappropriate because he was an adult and the Student was a child who was quite young. According to Student B, the Member’s conduct had a negative effect on her. She and some of her other friends changed schools after the incidents involving the Member in part because they no longer felt comfortable at the School. College Counsel asked Student B if this experience had any effect on how she trusted teachers, to which she responded, “I was never a student [XXX]after that.” Despite her very composed, thoughtful, and well-spoken demeanor during her testimony, Student B became visibly upset or emotional in responding to this question. Her voice changed slightly, she became teary-eyed, and the Committee inferred that the Member’s conduct upset her and had an emotional impact on her.
Student B testified that she was interviewed by the School principal and by the CAS about the incidents involving the Member. She stated that there were no other students present while she was being interviewed.
Principal [XXX]
[XXX] is an experienced educator and administrator. She taught for seven years, worked as a vice-principal for five years, and has been a principal for 12 years. She was the Member’s principal at the School during the time of the events in question.
The allegations involving the Member were first brought to her attention by a parent in the fall semester of 2014. After receiving the complaint involving the Member, Principal [XXX] contacted her superintendent and then carried out an investigation. Her investigation notes are well documented and were entered as Exhibits 5, 6 and 8. The investigation notes document the principal’s separate interviews with the Student (and her parents), with Student A (and her mother) and with Student B (and her mother), and set out her findings.
On November 24, 2014, Principal [XXX] told the Member that she would be meeting with the Student and her parents to discuss concerns that involved him, but she did not go into detail with the Member regarding the concerns.
On November 26, 2014, the principal met with the Student and her parents. During this meeting, Principal [XXX] learned the following, among other things. While sitting at his desk in the classroom, the Member rubbed the back of the Student’s thigh above her knee. This occurred repeatedly while the Student was in the Member’s class in 2013-2014, and it persisted in 2014-2015 when the Student continued to serve as one of the Member’s student [XXX] at the beginning of the year. The Member’s inappropriate touching made the Student feel gross, uncomfortable, and “weirded out”. The principal learned that Student A and Student B also witnessed the touching. In addition, the Member yelled at the Student for no longer playing on his [XXX], and he gave her dirty looks in the hallway and got mad at her for no longer being a student [XXX] or visiting his classroom at recess (once the Student was in grade [XXX] and no longer in his class). The Student also told the principal that the Member treated her as his favourite (see Exhibits 5 and 6).
Principal [XXX] reported the incidents to the CAS, which conducted its own independent investigation. The principal believed that the CAS had verified the allegations, although she did not receive the CAS’s findings personally. College Counsel showed Principal [XXX] a letter from the CAS to the principal’s superintendent, which confirms that the allegations were substantiated: the Member sexually touched the Student on the back of her leg over the course of a significant period of time, which made the Student uncomfortable (see Exhibit 7). The principal testified that the police were also involved, but they did not press charges at the request of the Student’s parents, who did not want to draw any further attention to their daughter.
Principal [XXX] also interviewed Student A and Student B as part of her investigation, and the notes from these separate interviews were entered as Exhibit 8. The students’ individual responses to the principal’s interview questions were consistent with their testimony before the Committee.
Principal [XXX] testified that she did not have the opportunity to discuss the allegations with the Member, because he was absent from school on November 26, 2014 without providing any explanation, and he never returned to the School after that. The principal has not spoken to the Member since then.
Principal [XXX] was also asked questions about the Board’s Code of Conduct (see Exhibit 9), the College’s Professional Advisory regarding Professional Misconduct Related to Sexual Abuse and Sexual Misconduct (see Exhibit 10), and the College’s Ethical Standards for the Teaching Profession and the Standards of Practice for the Teaching Profession (see Exhibit 11). Principal [XXX] testified that the Member did not meet the expectations set out in the Board’s Code of Conduct because he showed a lack of respect for the Student and he was not a positive role model in the classroom or the School community. The principal further testified that the Member’s inappropriate touching was a boundary violation as described in the College’s Professional Advisory. Finally, Principal [XXX] testified that the Member’s inappropriate touching was a breach of all four ethical standards for the teaching profession (care, respect, trust and integrity), and that he demonstrated a lack of commitment to students and student learning (which is a standard of practice of the teaching profession).
SUBMISSIONS OF COLLEGE COUNSEL
College Counsel submitted that the Committee ought to find the Member guilty of professional misconduct under each of the heads of misconduct set out in the Notice of Hearing. According to College Counsel, the credible and consistent witness testimony and the documentary evidence before the Committee clearly establish that the Member engaged in a pattern of misconduct with the Student over the course of one and a half academic years. The Member repeatedly rubbed the back of the Student’s leg during the 2013-2014 and the beginning of the 2014-2015 academic years, as alleged in the Notice of Hearing.
College Counsel provided detailed submissions regarding each head of misconduct alleged in the Notice of Hearing and submitted that the Committee had received sufficient evidence to make a finding with respect to each head of misconduct. With respect to proving that the Member failed to maintain the standards of the profession contrary to subsection 1(5) of Ontario Regulation 437/97, College Counsel submitted that she deliberately did not seek to qualify Principal [XXX] as a participant expert because it was not necessary to do so in this case. While expert evidence is generally required to prove the standards of the profession, it is not required where the failure to maintain the standards of the profession is obvious. According to College Counsel, it is self-evidently a failure to maintain the standards of the profession for a teacher to repeatedly rub the upper thigh of a young student over the course of one and a half academic years.
College Counsel further submitted that the College was not seeking a finding that the Member is ungovernable and she did not speculate as to why the Member decided not to participate in his hearing.
DECISION
Onus and Standard of Proof
The College bears the burden of proving the allegations in accordance with the standard of proof set out in F.H. v. McDougall, 2008 SCC 53, which is proof on a balance of probabilities.
Decision
Having considered the evidence, onus and standard of proof, and the submissions made by College Counsel, the Committee found (on September 25, 2017) that the facts support a finding of professional misconduct. In particular, the Committee found that Craig James Lusk committed acts of professional misconduct as alleged, contrary to Ontario Regulation 437/97, subsections 1(5), 1(7.1), 1(7.2), 1(7.3), 1(15), 1(18) and 1(19).
REASONS FOR DECISION
The Committee has carefully reviewed the evidence and submissions presented in this matter. The Committee first sets out its factual findings and then explains why these facts give rise to a finding of professional misconduct, as alleged in the Notice of Hearing.
Factual Findings
The Committee received credible and consistent evidence from the College’s witnesses and through Principal [XXX] contemporaneous documentation of her investigation with respect to the material facts in this matter. The Committee found that the two student witnesses were very credible: they both had the opportunity to observe the Member’s inappropriate touching of the Student; they were able to clearly recall the events in question; their evidence was reasonable and not overstated or exaggerated; and their evidence was consistent – both internally and externally. Principal [XXX] detailed and contemporaneous investigation notes also corroborated the students’ accounts. The College’s evidence was uncontradicted, given the Member’s decision not to participate in this hearing.
The Committee recognizes that some of the evidence that it received was hearsay; particularly the evidence with respect to the Student’s reactions to certain events or conversations that she had. The Student did not testify before the Committee, and the evidence of what she purportedly told others (including Student A, Student B and Principal [XXX]) is hearsay. Hearsay evidence is, however, admissible in discipline hearings at the College, and the Committee gives substantial weight to the hearsay evidence that it received in this case. All of the witnesses provided credible and consistent accounts of their conversations with the Student, and the comments attributed to the Student were all reasonable and logical. For example, it is self-evident that a young, female student would feel uncomfortable after having her upper thigh rubbed in a sexual manner by an adult teacher on a regular basis over the course of one and a half academic years.
The Committee finds that, on a balance of probabilities, the Member sexually touched the Student regularly and repeatedly. In particular, the Member rubbed the Student’s upper thigh, on the back of her leg above her knee, repeatedly during the 2013-2014 academic year and during the beginning of the 2014-2015 academic year. Student A and Student B both witnessed this conduct on multiple occasions and their testimonies were consistent. The Committee accepts their evidence that the sexual touching took place while the Member was seated at his desk in the classroom, that there were no other adults in the class, that the Member’s student [XXX](all of whom were female)2 were present while this occurred, and that it made the Student feel uncomfortable.
Principal [XXX] interview notes with the Student confirms that the Member’s sexual touching was frequent and unwanted, and it made the Student feel uncomfortable, “weirded out”, and gross.
In addition, the Member inappropriately singled out the Student. The Committee received clear, consistent and uncontradicted evidence that the Member favoured the Student and singled her out from her peers. The Committee accepts the evidence of the student witnesses that the Member treated the Student as his favourite. He called on her more often than other students to present her work in front of the class; he invited her to participate in special activities during class time; and he ran an [XXX] page with her alone. The Committee believes that the Member fostered an inappropriate relationship with the Student, in which he targeted her specifically and ultimately sexually abused her by repeatedly rubbing her upper thigh over the course of one and a half academic years.
Moreover, the Member angrily lashed out at the Student for no good reason. The Committee received clear, consistent and uncontradicted evidence that the Member became unreasonably angry with the Student on multiple occasions. He yelled at her when she quit his [XXX] and stopped serving as his student [XXX](even after he was no longer her teacher), and he became very angry with her when she accidentally knocked over a Christmas tree in the classroom. These angry outbursts were entirely inappropriate. The Member had no good reason to be upset with the Student who (for good reason) chose to distance herself from him. The Member’s irrational anger towards the Student is indicative of his inappropriate feelings towards the young student, which ultimately materialized in his repeated sexual touching of the young girl. There is a clear power imbalance between the Member and the Student, and the Committee believes that the Member exploited his position of trust and authority by making the Student feel guilty or scared for trying to distance herself from him.
Legal Conclusions
The Committee finds that the Member’s conduct set out above gives rise to a finding of professional misconduct. In particular, the Member failed to maintain the standards of the profession, contrary to Ontario Regulation 437/97, subsection 1(5); he abused a student physically contrary to Ontario Regulation 437/97, subsection 1(7.1); he abused a student psychologically or emotionally contrary to Ontario Regulation 437/97, subsection 1(7.2); he abused a student sexually contrary to Ontario Regulation 437/97, subsection 1(7.3) and engaged in sexual abuse of a student as defined in section 1 of the Act; he failed to comply with section 264(1) of the Education Act, contrary to Ontario Regulation 437/97, subsection 1(15); 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 he engaged in conduct unbecoming a member, contrary to Ontario Regulation 437/97, subsection 1(19).
1) The Member contravened [Ontario Regulation 437/97, subsection 1(5)](https://www.canlii.org/en/on/laws/regu/o-reg-437-97/latest/o-reg-437-97.html#sec1subsec5_smooth)
The Committee finds that the Member failed to maintain the standards of the profession. The Committee received the following documents relating to professional standards: the Board’s Code of Conduct; the College’s Professional Advisory regarding Professional Misconduct Related to Sexual Abuse and Sexual Misconduct; and the College’s Ethical Standards for the Teaching Profession and the Standards of Practice for the Teaching Profession. The Committee also accepts the submission of College Counsel and the advice of Independent Legal Counsel that this is not the type of case in which expert evidence is required in order to prove the standards of the profession. Independent Legal Counsel highlighted the following passage from Novick v. Ontario College of Teachers, 2016 ONSC 508 at paragraph 71:
There may be cases where conduct is so egregious that an expert is not required to inform the Committee about it being misconduct. For example, physical or sexual abuse of a student by a teacher, or counselling a student to commit a criminal act, would be clear examples of conduct that is so offside what is acceptable as to be self-evidently misconduct.
The Committee finds that the Member’s sexual abuse of the Student in this case constitutes conduct that is so egregious that no expert evidence is required. The Member regularly and repeatedly rubbed the upper thigh of a young female student over the course of one and a half academic years. His conduct is self-evidently professional misconduct.
The Member’s sexual touching of the Student was a clear breach of the Ethical Standards for the Teaching Profession and the Standards of Practice for the Teaching Profession. Through his alarming conduct, the Member blatantly disregarded the ethical standards of care, trust, respect and integrity and he demonstrated a lack of commitment to students and student learning. Teachers are expected to act as positive role models and to provide students with a safe learning environment. The Member did the opposite. His repeated sexual touching of the Student made her feel uncomfortable, it frightened her, and it had a negative impact on other students who witnessed this conduct. Several students decided to change schools in part because they no longer felt comfortable at the School.
2) The Member contravened [Ontario Regulation 437/97, subsection 1(7.1)](https://www.canlii.org/en/on/laws/regu/o-reg-437-97/latest/o-reg-437-97.html#sec1subsec7.1_smooth)
The Committee finds that the Member abused a student physically. There is plentiful evidence that the Member rubbed the Student’s upper thigh repeatedly during the 2013-2014 academic year and during the beginning of the 2014-2015 academic year. Touching a young student in this manner is physically abusive.
3) The Member contravened [Ontario Regulation 437/97, subsection 1(7.2)](https://www.canlii.org/en/on/laws/regu/o-reg-437-97/latest/o-reg-437-97.html#sec1subsec7.2_smooth)
The Committee finds that the member psychologically or emotionally abused a student or students. While the Committee did not receive evidence from the Student directly, it received evidence about the impact that the Member’s conduct had on the Student through Principal [XXX] contemporaneous investigation notes and through the two student witnesses who had discussed the incidents with the Student. The Committee accepted this hearsay evidence for the reasons set out above. The Committee accepts that the Student felt uncomfortable, “weirded out”, and gross because of the Member’s conduct. She was embarrassed to be the recipient of the Member’s unwanted touching and she was scared to tell an adult about it. The Student was only [XXX] and then [XXX] years old at the time of the incidents. A clear power imbalance existed between the Member and the Student and the Member’s exploitation of his position of trust and authority is repugnant.
It is logical and reasonable that a [XXX] girl would feel incredibly uncomfortable and scared when subjected to the repeated, unwanted, sexual touch of a man whom she would have expected to be trustworthy. Teachers are supposed to provide safe spaces in which students can learn and develop. The Member’s conduct that specifically targeted the Student was emotionally and psychologically abusive. The Member’s angry and intimidating responses to the Student’s attempts to distance herself from him are also deeply concerning to the Committee and suggest that the Member had developed inappropriate feelings toward the Student.
While the Member’s conduct towards the Student is sufficient to establish that the Member psychologically or emotionally abused a student, the Committee notes that the Member’s actions toward the Student did not only negatively affect her. The Member’s behaviour was upsetting to other students who witnessed his conduct (including Student A and Student B) and it affected their academic careers as well. Students other than the recipient of the Member’s unwanted touching changed schools in part because they no longer felt comfortable at the School, and some now question whether they can trust their teachers.
Because the Notice of Hearing is limited to the Member’s conduct towards the Student, the Committee does not base its findings of psychological or emotional abuse on the impact that the Member’s conduct had on others who observed his behaviour from a distance. However, the Committee notes that it is important for members of the profession to recognize that their unprofessional behaviour can have harmful, unintended effects on students who merely witness their conduct and are not directly targeted by it. There is a powerful ripple effect that may occur when members conduct themselves as the Member did in this case.
4) The Member contravened [Ontario Regulation 437/97, subsection 1(7.3)](https://www.canlii.org/en/on/laws/regu/o-reg-437-97/latest/o-reg-437-97.html#sec1subsec7.3_smooth)
The Committee finds that the Member sexually abused a student. The definition of sexual abuse at section 1 of the Act includes “touching, of a sexual nature, of the student by the member.” The Member repeatedly touched the Student in a sexual manner over the period of one and a half academic years. In arriving at this conclusion, the Committee considered the young age of the Student (she was [XXX] and [XXX] years old at the relevant times); the area of her body where the Member touched her (on the back of her upper thigh, above the knee); and, the type of touch (both Student A and Student B described it as circular rubbing).
5) The Member contravened [Ontario Regulation 437/97, subsection 1(15)](https://www.canlii.org/en/on/laws/regu/o-reg-437-97/latest/o-reg-437-97.html#sec1subsec15_smooth)
The Committee finds that the Member failed to comply with subsection 264(1) of the Education Act, which sets out the duties of teachers. Teachers are expected to encourage students in the pursuit of learning and to set a positive example for students, among other things. The Member’s conduct was in stark contradiction to these expectations. He singled out the Student, sexually abused her and made her feel uncomfortable and scared. He also modelled this reprehensible behaviour in front of other students. Not only did the Member fail to act as a positive role model and to encourage student learning in a safe space, but he also eroded his students’ trust and confidence in teachers and he tarnished the reputation of the profession.
6) The Member contravened [Ontario Regulation 437/97, subsection 1(18)](https://www.canlii.org/en/on/laws/regu/o-reg-437-97/latest/o-reg-437-97.html#sec1subsec18_smooth)
The Committee finds that the Member committed acts that, having regard to all the circumstances, would reasonably be regarded by members as disgraceful, dishonourable and unprofessional. The Member exploited his position of trust and authority in an egregious manner by repeatedly sexually abusing a [XXX] and then [XXX]-year-old female student of his. He invaded the Student’s personal space on a regular basis and singled her out. The Member’s conduct formed part of a disturbing pattern of behaviour, in which he violated the Student’s physical integrity with impunity over the course of one and a half academic years. Rather than promoting student learning and providing students with a classroom environment in which they could develop and prosper, the Member had a profoundly negative effect on a young girl’s formative education. His lack of professionalism is indisputable.
7) The Member contravened [Ontario Regulation 437/97, subsection 1(19)](https://www.canlii.org/en/on/laws/regu/o-reg-437-97/latest/o-reg-437-97.html#sec1subsec19_smooth)
The Member engaged in conduct unbecoming a member of the teaching profession, for similar reasons to those set out directly above in relation to subsection 1(18) of Ontario Regulation 437/97. Among other things, the Member eroded his students’ trust and confidence in teachers and he tarnished the reputation of the profession.
PENALTY SUBMISSIONS OF COLLEGE COUNSEL
College Counsel submitted that the Committee ought to order a penalty that includes the following elements: 1) a reprimand that the Member must receive prior to commencing or resuming a teaching position; 2) a one-month suspension; and 3) the imposition of terms, conditions or limitations that include the Member’s successful completion of a course regarding appropriate boundaries and boundary violation issues. According to College Counsel, the Committee ought to consider the following penalty objectives in crafting its order: 1) specific deterrence; 2) general deterrence; 3) rehabilitation; 4) denunciation of the misconduct; and 5) protection of the public interest and the promotion of the public’s confidence in the disciplinary process.
College Counsel provided the Committee with the following two cases in order to establish a range of appropriate penalties for matters involving similar types of professional misconduct: Ontario College of Teachers v. Primeau, 2006 ONOCT 35 (“Primeau”) and Ontario College of Teachers v. Ste-Croix, 2015 ONOCT 75 (“Ste-Croix”). The misconduct in Primeau involved inappropriate touching that was less serious than in the Member’s case and resulted in a penalty that included a reprimand and coursework, but no suspension. The misconduct in Ste-Croix involved boundary violation issues and some physical touching of a student that included wrestling and hugging. The penalty ordered in Ste-Croix included a reprimand, coursework and a three-month suspension. Both Primeau and Ste-Croix were decided on agreement, by way of joint submissions on penalty.
While College Counsel recognized that these cases were not entirely similar on their facts, she submitted that they would provide the Committee with some guidance as to the appropriate penalty range, and that a penalty that includes a one-month suspension was reasonable and appropriate given the facts of the Member’s case.
The Committee’s request for additional submissions with respect to penalty
The Committee had serious concerns that the College’s proposed penalty was too lenient, given the nature and severity of the Member’s misconduct. The Committee invited College Counsel to make additional submissions or to provide additional case law to explain whether a penalty that included a suspension in the range of up to 12 months and an additional course regarding professional ethics would be appropriate in the circumstances.
Additional submissions by College Counsel in response to the Committee’s request
In response to the Committee’s request, College Counsel submitted that the Committee has the discretion to order a penalty that it considers appropriate in the circumstances, and that it is not bound by the College’s proposed penalty. College Counsel reminded the Committee, however, of the principle that like cases should be treated alike and submitted that the proposed penalty fell within a reasonable range based on the case law presented. Out of fairness to the Member who was advised of the penalty that the College would be seeking in advance of the hearing, College Counsel did not change her position with respect to the proposed penalty. She maintained that a one-month suspension was reasonable and appropriate based on her review of the case law. College Counsel also cautioned the Committee that ordering a 12-month suspension would go far beyond the one to three-month suspension range that she considered appropriate.
College Counsel provided the Committee with the following additional case law in which three, six and 12-month suspensions had been ordered, so as to provide additional guidance to the Committee: Ontario College of Teachers v. Ward, 2013 ONOCT 92 and 2013 ONOCT 93 (“Ward”); Ontario College of Teachers v. Gerwin, 2014 ONOCT 42 (“Gerwin”); Ontario College of Teachers v. Gowans, 2014 ONOCT 45 (“Gowans”); and Ontario College of Teachers v. Calautti, 2010 ONOCT 5 (“Calautti”).
College Counsel submitted that the penalty ordered in Ward included a three-month suspension and the conduct in that case was arguably more serious than the Member’s misconduct. It involved hugging, kissing, touching of buttocks and inappropriate comments, although the Committee in Ward did not make a finding of sexual abuse.
College Counsel submitted that the penalty ordered in Gerwin included a six-month suspension and that the conduct at issue was more serious than the Member’s misconduct. In Gerwin, the member developed an inappropriate relationship with a [XXX]-year-old student over the course of two academic years, in which the member: hugged the student; exchanged emails with the student; spent time alone with the student outside of school despite warnings from a colleague and the student’s mother not to do so; and kissed the student on the cheek.
College Counsel submitted that the penalty ordered in Gowans included a 12-month suspension and that the conduct at issue was more serious than the Member’s misconduct. In Gowans, the member gave a student a hug and a kiss on the cheek, she exchanged 2200 text messages with the student about personal issues, and she referred to the student as “babe”.
College Counsel submitted that the penalty ordered in Calautti included a 12-month suspension and that the conduct at issue was more serious than the Member’s misconduct. In Calautti, the member exchanged sexually explicit electronic communications with a student, invited a student to kiss her, and she was arrested and charged by the police with four counts, including luring a child, sexual exploitation and sexual assault.
College Counsel reiterated that the Member’s case was serious, but that it was not at the high end of the spectrum of sexual abuse cases. College Counsel urged the Committee to provide clear reasons if its penalty order went beyond the one to three-month suspension range that the College sought.
Given the recent legislative amendments to the Act, which came into effect in December 2016 and include a more robust scheme for addressing sexual misconduct, the Committee requested additional case law that was decided under the current legislative scheme in order to better guide its determination of the appropriate penalty in this case.
In response to this request, College Counsel submitted that the majority of the cases since the legislative amendments involved mandatory revocation for the types of sexual misconduct that are expressly stipulated at subsection 30.2(2) of the Act. These cases are not relevant to the Committee because the Member’s misconduct does not fall within one of the delineated types of sexual abuse that would attract the penalty of mandatory revocation. College Counsel provided the Committee with one additional case, with the caveat that it is distinguishable on its facts and far less relevant than the other cases that were presented to the Committee: Ontario College of Teachers v. Hay, 2017 ONOCT 58 (“Hay”).
According to College Counsel, Hay resulted in the revocation of the member’s teaching certificate following misconduct that was far more egregious than the Member’s misconduct. Mr. Hay had made a series of sexually explicit comments to a student, he visited the student at home alone, he suggested that they have a sexual relationship in the future, and he engaged in grooming behaviour over a number of years.
Finally, College Counsel submitted that the College was not seeking costs in this matter.
PENALTY DECISION
On September 26, 2017, the Committee made the following order as to penalty:
Prior to commencing or resuming a teaching position for which a Certificate of Qualification and Registration is required (a “Teaching Position”), the Member shall appear before the Committee to receive an oral reprimand and the fact of the reprimand is to be recorded on the Register of the Ontario College of Teachers (the “Register”).
The Registrar is directed to suspend the Certificate of Qualification and Registration of the Member for a period of six 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 Registrar is directed 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) Prior to commencing or resuming a Teaching Position, the Member shall enrol in and successfully complete at his own expense, a course of instruction pre-approved by the Registrar regarding appropriate boundaries and boundary violation issues and a course of instruction pre-approved by the Registrar regarding professional ethics, subject to the following conditions:
(i) the Member will provide to the course practitioners approved by the Registrar, a copy of the Decision, Reasons for Decision and Order of the Discipline Committee;
(ii) following review of the documents noted at paragraph (i) above, the course practitioners will provide to the Registrar, for approval, syllabi for the proposed courses which specifically address the Discipline Committee’s concerns regarding the Member’s professional misconduct. The syllabi proposed by the course practitioners shall also specify the length of the courses to be undertaken by the Member, and the assignments to be completed by the Member;
(b) within 30 days of his completion of the courses outlined in (a) above, the Member shall provide to the Registrar a written report from the course practitioners which:
(i) confirms that the Member has successfully completed the courses and reports on the progress of the Member with respect to addressing the outlined goals of the courses.
REASONS FOR PENALTY
The Committee carefully considered the College’s proposed penalty and submissions as well as the case law provided. The Committee recognizes that it is not bound by past decisions of the Discipline Committee and that it has the discretion to order a penalty that is reasonable and appropriate given the circumstances of this case. The Committee also appreciates the principle that like cases should be treated alike, and notes that the College sought a penalty order that includes a suspension in the range of one to three months. For the reasons that follow, the Committee does not accept the submissions of College Counsel that the appropriate penalty in this case should include a suspension in the range of one to three months; such an order is too lenient given the facts of this case and would not adequately protect the public interest.
Before addressing the issue of the appropriate duration of the suspension ordered, the Committee will briefly address the other elements of its penalty order. The penalties ordered in all of the cases presented to the Committee include a reprimand and the imposition of terms, conditions or limitations (notably that the members must successfully complete remedial coursework). The Committee finds that these orders are reasonable and appropriate.
Reprimand
The Member’s repeated pattern of sexually abusive conduct warrants a reprimand by his peers. The Committee is deeply concerned that the Member regularly rubbed the Student’s upper thigh in a sexual manner over the course of one and a half academic years. He made the Student feel scared and uncomfortable, he singled her out in a way that was completely inappropriate, and he utterly failed to provide students with a safe space in which they could learn and develop. The Member’s conduct demonstrated a gross abuse of his position of trust and authority and it undermined the public’s confidence in the teaching profession. 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.
Coursework
The Committee finds that the courses of instruction regarding appropriate boundaries and boundary violation issues, and professional ethics 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.
While College Counsel did not seek an additional course regarding professional ethics, the Committee believes that the Member’s flagrant violation of the College’s Ethical Standards for the Teaching Profession and the College’s Standards of Practice for the Teaching Profession warrant additional remedial coursework in that area. The Member’s complete disregard for the standards of care, trust, respect and integrity and his lack of commitment to students and student learning indicate that the Member is in need of additional professional development in the areas of both boundary violation issues and professional ethics.
Six-month suspension
The Committee finds that a six-month suspension is reasonable and appropriate given the circumstances of this case. The aggravating factors are significant and there are no mitigating factors in this case. Among other things, the Member singled out a [XXX] and then [XXX]-year-old girl and he sexually abused her by rubbing her upper thigh repeatedly over the course of one and a half academic years; he scared and intimidated the Student and made her feel uncomfortable; he became unreasonably angry with the Student when she tried to distance herself from him; and he treated her noticeably different than the other students by favouring her, which is indicative of a troubling personal relationship that he appeared to be fostering with the young girl. The Member demonstrated absolutely no understanding that his conduct was inappropriate, and he showed a complete and utter disregard for the physical and emotional wellbeing of his students.
The Committee does not believe that the cases provided by College Counsel establish that an appropriate penalty would include a suspension of only one to three months. Such a lenient penalty does not sufficiently address the Member’s egregious misconduct and it does not adequately protect the public interest. The Committee recognizes that it is rare to order a penalty that goes beyond the order sought by the College; however, this decision turns entirely on its facts and the facts in this case warrant a more severe penalty than that sought by the College. The cases provided by College Counsel in support of the proposed penalty were distinguishable on their facts from the Member’s case and did not satisfy the Committee that a one-month suspension was appropriate in this case.
First, Primeau was an uncontested decision from 2006. That decision arose under a different legislative scheme, which did not include such robust protections against sexual misconduct as does the current version of the Act. The Committee agrees with the following sentiment expressed in College of Physicians and Surgeons of Ontario v. Peirovy, 2017 ONSC 136 at paragraph 39 (“Peirovy”), and believes that similar logic applies to the teaching profession as the medical profession:
[…] community tolerance for sexual abuse by doctors has lessened. The public’s confidence in the medical profession demands more from the disciplinary process than recent sexual abuse discipline cases suggest.3
Moreover, in uncontested matters (like Primeau), a Committee is provided with a joint submission on penalty, which is the result of a negotiation between the parties. The law therefore confines a 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. It is possible that the penalties agreed to in uncontested matters are more lenient than they might otherwise be in contested matters where there is no quid pro quo between the parties. In addition, Primeau is distinguishable from the Member’s case in that Mr. Primeau did not target and cultivate an inappropriate relationship with one student over the course of one and a half academic years.
Second, Ste-Croix is distinguishable from the Member’s case in that there was no finding of physical or sexual abuse in that matter. Ms. Ste-Croix failed to maintain appropriate professional boundaries with a student, but she did not physically or sexually abuse the student. The Member’s case is considerably more serious in that he repeatedly and regularly sexually abused a young female student. The penalty in Ste-Croix included a three-month suspension. A proportionate suspension in the Member’s case should therefore be longer than three months.
Third, Ward is similarly distinguishable from the Member’s case. Mr. Ward was not found to have sexually abused a student or students. At page 9 of its penalty decision, the Committee in Ward expressly addressed this issue as follows:
[...] the Committee determined that the Member’s actions did not constitute sexual abuse of the students as defined by the Act. Had this finding been made, it would have resulted in the imposition of a more severe penalty [emphasis added].
The penalty in Ward included a three-month suspension. The Committee believes that a more severe penalty is appropriate in the Member’s case in which a finding of sexual abuse was made.
Fourth, Gerwin is a case in which Mr. Gerwin received a six-month suspension, as has been ordered in the Member’s case. The Committee will not engage in an analysis of whether kissing a student on the cheek and hugging a student for an extended period of time (as was the case in Gerwin) is worse than rubbing a student’s leg regularly and repeatedly. Both are unacceptable. Ultimately, the sexual misconduct in both Gerwin and the Member’s case took place regularly and repeatedly over the course of at least one and a half academic years, and the Committee believes that the six-month suspension ordered in Gerwin is similarly appropriate in the Member’s case.
Fifth, the Committee does not find that Gowans is sufficiently analogous to the Member’s case to be of any assistance. There was no finding of sexual abuse in Gowans and Ms. Gowans’ misconduct was of a significantly different nature than that of the Member. She exchanged approximately 2200 text messages of a personal nature with a student, among other things, and her 12-month suspension came as a result of a joint submission agreed upon by the parties. The Committee does not rely on Gowans in arriving at its penalty order.
Sixth, Calautti is a case in which Ms. Calautti was found guilty of professional misconduct for, among other things, engaging in criminal conduct for which she was found guilty of Internet luring, contrary to section 172.1 of the Criminal Code of Canada. Calautti involved serious criminal charges and a guilty finding before the Ontario Court of Justice. The criminal finding in Calautti distinguishes it from the Member’s case and the penalty ordered in that case (which included a 12-month suspension) provides limited guidance to the Committee.
Finally, the Committee agrees with College Counsel that Hay is not relevant and is distinguishable on its facts. The Committee did not rely on Hay in arriving at its penalty order.
The Committee finds that the cases presented by College Counsel demonstrate that the Member’s misconduct was considerably more serious than the misconduct in the cases presented that resulted in suspensions of one to three months in duration. In particular, the Committee believes that the young age of the Student and the repeated nature of the misconduct are distinguishing features of this case. The Committee did not receive any sufficiently analogous cases where a 12-month suspension was ordered and it accepts the submission of College Counsel (based on her review of the case law) that a 12-month suspension would go far beyond the range of what would be considered an appropriate penalty in the circumstances. Therefore, based on its review of the cases provided and based on the submissions of College Counsel, the Committee finds that a six-month suspension is reasonable.
The Committee notes, however, that this finding is limited to the circumstances of this case. Members may receive penalties up to and including revocation when they are found guilty of professional misconduct, pursuant to subsections 30(4) and 30(5) of the Act. The Committee does not tolerate the sexual abuse of students and encourages the College to consider the full range of penalties available in all cases of sexual misconduct.
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.
The Committee is satisfied that the penalty is appropriate in the circumstances and serves and protects the public interest.
Date: October 10, 2017
______________________________ Jane Ishibashi
Chair, Discipline Panel
Colleen Landers
Member, Discipline Panel
Ravi Vethamany, OCT
Member, Discipline Panel
Footnotes
- Section 40(1.1) was cited in the original Notice of Hearing. However, this provision has been repealed after amendments to the Act came into force on December 5, 2016.
- While Principal [XXX] testified that she believed that the Member may have had one or two male student [XXX], the Committee prefers the student witnesses’ evidence that all student [XXX] were female. This evidence is also consistent with the documentary evidence, in which all of the student [XXX] referred to are female. The Committee finds that the Member’s decision to choose only girls to serve as his student [XXX] is an important detail that helps to contextualize his sexually abusive conduct towards the Student.
- The Committee received submissions from College Counsel that Peirovy has been appealed to the Ontario Court of Appeal. However, the Committee accepts the advice of Independent Legal Counsel that Peirovy remains good law in Ontario until and unless it is successfully appealed.