WARNING: Publication of any information that could identify the victim or a witness in this matter is prohibited pursuant to subsection 486.4(1) of the Criminal Code of Canada.
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
Lubomir Iason, a member of the Ontario College of Teachers at all material times.
PANEL: Vicki Shannon, OCT, Chair Tom Potter
Ravi Vethamany, OCT
BETWEEN: ) ) Janice Duggan,
ONTARIO COLLEGE OF TEACHERS ) for Ontario College of Teachers
- and - ) ) Lubomir Iason
LUBOMIR IASON ) is self-represented but was not
(CERTIFICATE # 491279) ) present
) Rebecca Durcan,
) Steinecke Maciura LeBlanc, ) Independent Legal Counsel ) ) Heard: October 25, 2017
DECISION, REASONS FOR DECISION AND ORDER
This matter came on for hearing before a panel of the Discipline Committee (the “Committee”) on October 25, 2017 at the Ontario College of Teachers (the “College”) at Toronto.
A Notice of Hearing (Exhibit 1), dated April 10, 2017 was served on Lubomir Iason (the “Member”), requesting his attendance before the Committee on April 24, 2017 to set a date for a hearing, and specifying the charges. The hearing was subsequently set for October 25, 2017.
The Member was not in attendance for the hearing and did not have legal representation.
Counsel for the College submitted an Affidavit of Tatiana Tkatch (Exhibit 3) sworn September 26, 2017, to prove that the Member had been informed of the allegations against him and the time and date of the hearing. In this affidavit, Ms. Tkatch, a law clerk at the College, outlines the communications with the Member and provides proof of service of the Notice of Hearing. 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. College Counsel submitted that there had been “radio silence” from the Member since July 2017. College Counsel stated that the Notice of Hearing puts the Member on notice that, if he does not attend on the scheduled hearing date, the Committee may proceed in his absence. The Committee delayed the start of the hearing by approximately 15 minutes to allow the Member time to appear. 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 and Reasons for Sentence from the Member’s criminal proceeding before Justice L.M. Baldwin dated June 16, 2016 (Exhibit 4 at tab F). In these proceedings before the Ontario Court of Justice, an order restricting publication was made pursuant to section 486.4(1) of the Criminal Code of Canada. The Committee is required to uphold this publication ban. Accordingly, any information that could identify the victim or a witness involved in this matter shall not be published in any document or broadcast or transmitted in any way.
THE ALLEGATIONS
The allegations against the Member in the Notice of Hearing are as follows:
IT IS ALLEGED that Lubomir Iason is guilty of professional misconduct as defined in the Ontario College of Teachers Act, 1996 (the “Act”) in that:
(a) he failed to maintain the standards of the profession, contrary to Ontario Regulation 437/97, subsection 1(5);
(b) he abused a student psychologically or emotionally, contrary to Ontario Regulation 437/97, subsection 1(7.2);
(c) he abused a student sexually, contrary to Ontario Regulation 437/97, subsection 1(7.3) and/or engaged in sexual abuse of a student as defined in section 1 of the Act;
(d) he failed to comply with the Education Act, Revised Statutes of Ontario, 1990, chapter E.2, and specifically subsection 264(1) thereof or the Regulations made under that Act, contrary to Ontario Regulation 437/97, subsection 1(15);
(e) he 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);
(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
Lubomir Iason is a member of the Ontario College of Teachers.
At all material times, the Member was employed by the Hamilton-Wentworth Catholic District School Board (the “Board”) as a Grade [XXX] teacher at [XXX]School in Hamilton, Ontario.
In November 2015, [XXX] was a [XXX]-year-old female. The Member was not [XXX]teacher.
On or about November 21, 2015, the Member was charged with one count of sexual assault, contrary to section 271 of the Criminal Code (Canada), and one count of sexual interference, contrary to section 151 of the Criminal Code (Canada).
On or about June 16, 2016, the Member was found guilty of one count of sexual interference, contrary to section 151 of the Criminal Code (Canada).
On or about June 16, 2016, the Member was sentenced to 90 days’ intermittent jail, three years’ probation and a number of ancillary orders.
On or about October 14, 2016, the Member resigned from the Board effective October 28, 2016.
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 Lubomir Iason (Exhibit 2), 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. Lubomir Iason (Exhibit 4), which contains the following documents:
Information and Outcome dated November 21, 2015 and June 16, 2016, respectively;
Order to Comply with [XXX] dated June 16, 2016;
Fine Order/Victim Surcharge dated June 16, 2016;
Probation Order dated June 16, 2016;
Report to a Provincial Court Judge or the Court, and the Order Authorizing the Taking of Bodily Substance for Forensic Analysis, dated June 15, 2016;1 and
Transcript of Reasons for Judgment and Reasons for Sentence before the Honourable Justice L.M. Baldwin at Milton, Ontario, dated June 16, 2016.
The evidence presented in Exhibit 4 confirms that on June 16, 2016, in the Ontario Court of Justice, the Member was found guilty of one count of sexual interference, contrary to section 151 of the Criminal Code of Canada.
SUBMISSIONS ON FINDING
College Counsel described the Member’s criminal history in detail and submitted that the Member’s matter involved the sexual abuse of a [XXX]year-old female,[XXX]., who was also the Member’s[XXX]. 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, provided a sufficient basis to justify a finding of professional misconduct under all of the heads of misconduct alleged in the Notice of Hearing. College Counsel submitted that the Member did not appeal his criminal conviction and that the appeal period has lapsed. The Member had legal representation during his criminal proceedings. College Counsel submitted that the Committee can rely on Rule 13.03 and 13.04 of the Rules of Procedure of the Discipline Committee and of the Fitness to Practise Committee (the “Committee’s Rules”) to admit the facts as contained in the Brief of Court Documents as evidence and find the Member guilty of all the heads of misconduct alleged in the Notice of Hearing.
College Counsel submitted that on November 5, 2015 the Member engaged in sexual and psychological or emotional abuse of[XXX]. College Counsel stated that even though[XXX]. was not the Member’s student, she was a [XXX] year-old female in Ontario and could properly be described as being a “student”. According to College Counsel, during the time of this misconduct, the previous version of the Act (before it was amended in December 2016), contained the offences of sexual and psychological or emotional abuse but did not define the term “student”.
The Committee requested additional submissions and advice on the issue of retrospectivity. In response to Independent Legal Counsel’s reference to Kalin v. Ontario College of Teachers, 2005 CanLII 18286 (ON SCDC), College Counsel submitted that in order for a Member to be found guilty of professional misconduct, the regulation had to have been in place at the time the misconduct occurred. College Counsel stated that it is clear that at the time of the Member’s misconduct, the regulations that relate to sexual and psychological or emotional abuse of a student were in place. College Counsel further presented Ontario College of Teachers v. Robinson, 2003 ONOCT 46 (“Robinson”) for the purpose of defining the term “student” under the Act, prior to the December 2016 amendments. According to College Counsel, the Committee in Robinson found that there was no requirement for there to be a direct teacher-student relationship to satisfy the term “abuse of a student.” College Counsel submitted that, prior to the December 2016 amendments, the Committee was tasked with interpreting the term “student” as it related to sexual and psychological or emotional abuse without the assistance of a definition. According to College Counsel, based on Robinson, the legislative intent, and the Committee’s mandate to protect the public interest, the term “student” should be construed broadly to include non-direct teacher-student relationships.
College Counsel submitted that the evidence against the Member is overwhelming and that the Member’s acts of misconduct are so notorious that the Committee could find the Member guilty of all of the heads of misconduct alleged in the Notice of Hearing.
DECISION
Having considered the evidence, onus and standard of proof, and the submissions made by Counsel for the College, 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(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 certified copy of the Court Information as proof, in this case, that the Member committed the criminal offence outlined therein. The Member was found guilty and convicted of a criminal offence before a Canadian Court, no appeal has been taken, and the time for an appeal has expired.
In addition, pursuant to Rule 13.04 of the Committee’s Rules, the Committee admits as ancillary to the certified copy of the Court Information, the findings of fact contained in the related decision before the Ontario Court of Justice involving the Member. The Committee further admits as incidental to the certified copy of the Court Information, 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, on a balance of probabilities, that on November 5, 2015 the Member engaged in sexual touching of a female under the age of 16.[XXX]. is the Member’s[XXX]. On November 5, 2015,[XXX]. was visiting her [XXX]’s residence, which is where the Member[XXX]. At one point during the visit,[XXX]. went upstairs to her [XXX] room to watch a movie. The Member entered the bedroom and observed [XXX]lying on her stomach watching a movie. The Member proceeded to touch [XXX]buttocks and vaginal area, initially over her pants. The Member attempted to remove [XXX]pants and asked her if she had any pubic hair. [XXX]held onto her pants to prevent the Member from pulling them down. The Member continued to make attempts at removing [XXX]pants. The Member then placed his hands down [XXX]pants touching her buttocks and vaginal area. [XXX]advised the Member that she was uncomfortable with what was occurring, she pulled up her pants and proceeded to leave to the room. The Member asked [XXX]not to tell anyone about what happened. [XXX]was distressed and disturbed about what had occurred. [XXX]ultimately advised her family members about the incident.
On November 21, 2015, the Member was charged with one count of sexual assault and one count of sexual interference, contrary to sections 271 and 151 of the Criminal Code of Canada. The College has also proved, on a balance of probabilities, that on June 16, 2016 in the Ontario Court of Justice, the Member was convicted of one count of sexual interference, contrary to section 151 of the Criminal Code of Canada. The Member was sentenced to 90 days’ intermittent jail, three years’ probation, and a number of ancillary orders.
The Committee accepts College Counsel’s submission, including the Robinson case from 2003, as it relates to the applicable definition “student”, which demonstrates that the undefined term “student” (contained in the pre-December 2016 amendment of the Act) does not require a direct teacher-student relationship. The Committee accepts College Counsel’s submissions regarding the discretion to interpret the legislative intent of the term “student” in the pre-December 2016 amendments, based on its primary duty to serve and protect the public.
The Committee finds that the Member’s misconduct was egregious. The Member sexually touched his [XXX]-year-old[XXX], disregarding her protestations to stop. His actions resulted in psychological and emotional harm to the child, and fractured [XXX]. The Committee finds that the Member’s abhorrent conduct is a notorious breach of the standards of the profession, as not to be the subject of debate among reasonable persons. The Member’s conduct has undermined the public’s trust in the teaching profession. Accordingly, the Committee finds that the Member’s instance of sexual abuse constitutes professional misconduct contrary to Ontario Regulation 437/97, subsections 1(5), 1(7.2), 1(7.3), 1(15), 1(16), 1(18) and 1(19).
SUBMISSIONS ON PENALTY
Counsel for the College submitted that revocation of the Member’s certificate of qualification and registration is an appropriate penalty, considering the gravity of the Member’s misconduct. The Member’s misconduct was egregious and constituted a serious breach of trust. College Counsel further submitted that the Member’s misconduct had a devastating effect on the victim and the victim’s family. According to College Counsel, the Member’s misconduct was so notorious that revocation is the appropriate penalty in such serious matters as this.
College Counsel referred the Committee to Ontario College of Teachers v. Fusaro, 2013 ONOCT 24 (“Fusaro”), which is a case involving a member who was convicted of sexual interference. College Counsel submitted that this case was similar to the Member’s case in that they were both convicted of the same crime. Further, the Committee in Fusaro found the member guilty of many of the same heads of misconduct as the Member in this matter. College Counsel submitted that the penalty in Fusaro was revocation, which indicates that the penalty sought in this matter is reasonable.
College Counsel further submitted that the College was not seeking and order for a fine or costs. According to College Counsel, a fine is not appropriate in this case for the following reasons: the Member showed remorse and immediately accepted responsibility for his actions; he voluntarily resigned from his teaching position; and he pled guilty to the charge of sexual interference in the criminal court. According to College Counsel, an order for costs is not appropriate in this case because the Member did not impede the process of this hearing in any way, and his conduct does not have any of the attributes enumerated at rule 16.04 of the Committee’s Rules.
PENALTY DECISION
The Committee makes the following order as to penalty:
- 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 Committee weighed the aggravating and mitigating factors relevant to the Member’s misconduct. The Committee considered the following aggravating factors: the nature of the misconduct of the Member; the age of victim; the [XXX] between the Member and the victim; and the psychological and emotional harm caused to the victim, and the resulting [XXX] (see Exhibit 4, tab F).
The Committee considered the following mitigating factors: the Member pled guilty to sexual interference in criminal court and was sentenced to a 90-day intermittent sentence; he resigned his teaching position; and he accepted responsibility and expressed remorse (see Exhibit 4, tab F). The Committee also considered the possible side effects of the Member’s testosterone treatment, his participation in a treatment program and his commitment to continue treatment, and the opinion of the criminal court that the Member was a low risk of reoffending.
The Committee found that the Member’s conduct towards the young female was abhorrent and reprehensible. The Member’s act of sexual misconduct was also psychologically and emotionally abusive to the victim. Members of the College are expected to uphold the standards of the profession and to model appropriate behaviour both in and out of the classroom at all times.
Even though the Member’s criminal conduct did not directly involve his own student, his conduct has eroded the public’s trust and confidence in teachers and has tarnished the reputation of the teaching profession. Accordingly, the Member has forfeited the privilege of holding a teaching certificate and being a member of the teaching profession in Ontario. The Committee finds that revocation of the Member’s Certificate of Qualification and Registration is appropriate in this case.
The Committee makes no order with respect to fines and costs, in accordance with College Counsel’s submissions.
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 finding and the penalty is appropriate in the circumstances and meet the principle of serving and protecting the public interest.
Dated: December 11, 2017
______________________________ Vicki Shannon, OCT
Chair, Discipline Panel
` ______________________________
Tom Potter Member, Discipline Panel
Ravi Vethamany, OCT
Member, Discipline Panel
1 During the hearing, College Counsel withdrew this document and the Committee has not relied on it in arriving at its decision in this matter.