ATTENTION: In accordance with subsection 486.4(1) of the Criminal Code of Canada and pursuant to the order handed down by the Honourable Justice Sproat of the Ontario Superior Court of Justice, the publication of any information that could identify the victim or a witness in this matter is prohibited.
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 Stéphane Gilbert, a member of the Ontario College of Teachers at all material times.
PANEL: Jean-Luc Bernard, OCT, Chair
Brigitte Bidal Piquette, OCT
Sara Nouini, OCT
BETWEEN: ) Christine Lonsdale, ) McCarthy Tétrault LLP,
) for the Ontario College of Teachers,
ONTARIO COLLEGE OF TEACHERS ) assisted by Annie Lacroix,
) Law Clerk
– and – )
STÉPHANE GILBERT ) Stéphane Gilbert
(CERTIFICATE #426921) ) was not present or represented
) Renée Kopp,
) Jones Litigation Counsel LLP, ) Independent Legal Counsel
Heard: November 14, 2017
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 November 14, 2017 at Toronto.
A Notice of Hearing dated September 30, 2015 (Exhibit 1) was served on Stéphane Gilbert (“the Member”), requesting his presence on November 23, 2015 to set a date for the hearing, and specifying the charges. The hearing was subsequently set for November 14, 2017.
The Member was not in attendance for the hearing and did not have legal representation.
College Counsel submitted an Affidavit of Annie Lacroix sworn November 7, 2017 (Exhibit 3), to prove that the Member had been informed of the allegations against him, the date and time of the hearing and the penalty that was to be sought. In the affidavit, Ms. Lacroix, a law clerk with McCarthy Tétrault LLP, describes in detail her communication with the Member and provides proof of service of all required documents. On the basis of the affidavit, the Committee is satisfied that the Member received the Notice of Hearing and all disclosure documents, and that he was aware of the date and time of the hearing and the penalty that was to be sought. The Committee delayed the commencement of the hearing by approximately 15 minutes to enable the Member to attend at the hearing. Because he failed to do so, the Committee heard this matter in his absence.
ORDER OF NON-PUBLICATION
In the Member’s criminal trial before the Honourable Mr. Justice Sproat of the Ontario Superior Court of Justice, Justice Sproat made an order of non-publication and non-disclosure pursuant to subsection 486.4(1) of the Criminal Code of Canada (refer to Exhibit 5, Tabs 1-4 and 6). The Committee is required to comply with this order and therefore prohibits the publication of any information that could identify the victim or a witness in this matter.
ALLEGATIONS
The allegations against the Member in the Notice of Hearing are as follows:
IT IS ALLEGED that Stéphane Gilbert is guilty of professional misconduct as defined in subsections 30(2) and 40(1.1)1 of the Ontario College of Teachers Act, 1996 (the “Act”) in that:
(a) he failed to maintain the standards of the profession, contrary to Ontario Regulation 437/97, subsection 1(5);
(b) he abused one or more students physically, sexually, verbally, psychologically or emotionally, contrary to Ontario Regulation 437/97, subsection 1(7) [prior to the 2008 amendment];
(c) 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);
(d) 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
(e) he engaged in conduct unbecoming a member, contrary to Ontario Regulation 437/97, subsection 1(19).
PARTICULARS OF THESE ALLEGATIONS ARE AS FOLLOWS:
The Member is a member of the Ontario College of Teachers.
At all material times, the Member was employed by the Conseil scolaire de district catholique Centre-Sud as a teacher. From 1999 to 2003, the Member taught at École [XXX](the “School”) in.
During the relevant period, Student 1 was a student at the School.
During the 1999-2000 school year, the Member engaged in an inappropriate personal relationship with Student 1.
During the 1999-2000 school year, the Member engaged in a sexual relationship with Student 1.
On several occasions, the Member:
(a) kissed Student 1;
(b) embraced Student 1;
(c) held hands with Student 1.
MEMBER’S PLEA
Because the Member was not in attendance at the hearing nor was he represented by legal counsel, the Committee proceeded on the assumption that he denied the allegations set out in the Notice of Hearing. The Chair of the Committee, on behalf of the Member, entered a plea of not guilty to the allegations.
JURISDICTION
The Member continues to come under the College’s jurisdiction in this matter even though his Certificate of Qualification and Registration was revoked on December 15, 2016, because he was a member of the College at the time of the alleged misconduct.2 Subsection 14(5) of the Act provides as follows:
14(5) A person whose certificate of qualification and registration is revoked or cancelled continues to be subject to the jurisdiction of the College for professional misconduct, incompetence or incapacity referable to any time during which the person held,
a) a certificate of qualification and registration under this Act; or
b) an Ontario Teacher’s Certificate or a letter of standing as a teacher under the Education Act.
THE EVIDENCE
Counsel for the College submitted an Affidavit of Annie Lacroix sworn November 13, 2017 (Exhibit 4), to explain why the College did not call any witnesses in this matter. The affidavit states that the College was unsuccessful in its attempts to obtain contact information for Student 1. College Counsel therefore produced in evidence a Brief of Court Documents (Exhibit 5) containing the following:
R. v. Stephane Gilbert – Proceedings at Trial before the Honourable Justice J. Sproat, dated March 26, 2014;
R. v. Stephane Gilbert – Proceedings at Trial before the Honourable Justice J. Sproat, pp. 1-19, 80-86, 110, dated March 27, 2014;
R. v. Stephane Gilbert – Proceedings at Trial before the Honourable Justice J. Sproat, dated April 30, 2014;
R. v. Stephane Gilbert – Reasons for Judgment of the Honourable Justice J. Sproat, dated May 22, 2014;
R. v. Stephane Gilbert, Proceedings at Sentence before the Honourable Justice J. Sproat, dated September 9, 2014;
R. v. Stephane Gilbert – Decision of the Court of Appeal of Ontario, dated December 30, 2015;
Email from Stéphane Gilbert to the OCT Investigator, Dale Lafontaine, dated February 11, 2015, and attaching:
(a) Student 1 History
- Ontario College of Teachers v. Stéphane Gilbert, dated January 9, 2017.
SUBMISSIONS ON FINDING
College Counsel gave a detailed description of the Member’s criminal history and submitted that the Member’s case was one of sexual abuse, which is among the College’s most serious allegations. The Member engaged in a sexual relationship with Student 1, even though he did not have sexual relations with the student. Although Student 1 was insistent and wanted to have sexual relations with the Member, the teacher admitted that on several occasions, he kissed, embraced and held hands with Student 1. These incidents took place at the school, and occasionally at the Member’s apartment or on walks outside of school. The Member acknowledged that his conduct was inappropriate and ended his teaching career (refer to Exhibit 5, Tabs 1, 2, 4, 6 and 7).
According to College Counsel, the Member’s conduct as described in the Brief of Court Documents (refer to Exhibit 5) warranted a finding of professional misconduct with respect to all of the allegations in the Notice of Hearing. The Member was previously found guilty of professional misconduct and his Certificate of Qualification and Registration was revoked for engaging in similar misconduct involving another student (refer to Exhibit 5, Tab 8).
DECISION
Having considered the evidence, the onus and standard of proof and the submissions by College Counsel, the Committee finds that the facts support a finding of professional misconduct. In particular, the Committee finds that Stéphane Gilbert committed acts of professional misconduct as alleged in the Notice of Hearing, contrary to Ontario Regulation 437/97, subsections 1(5), 1(7) [prior to the 2008 amendment], 1(15), 1(18) and 1(19).
REASONS FOR dEcision
College Counsel argued, and the Committee agrees, that the rules of evidence applicable to College discipline hearings are relaxed. If a document is relevant to the subject matter of the proceeding, it is generally admissible, pursuant to section 15 of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, and Rule 13.01 of the Rules of Procedure of the Discipline Committee and of the Fitness to Practise Committee (the “Rules of Procedure”).3 The Committee finds that the evidence entered in the Brief of Court Documents referred to above (refer to Exhibit 5) is relevant and thus admissible.
Furthermore, Sub-rule 13.04(3) of the Rules of Procedure covers the very situation at issue in this case; i.e.:
The Committee may, in its discretion, admit findings of fact, whether or not supportive of a finding of guilt, made in prior criminal, civil or administrative proceedings as proof, in the absence of evidence to the contrary, of the facts so found.
Given that the Ontario Superior Court of Justice has already issued findings of fact in this matter, and that the Ontario Court of Appeal has dismissed the Member’s appeal, it would be inappropriate for the Committee to make any other finding. Accordingly, the Committee accepts the findings of fact in the Brief of Court Documents entered into evidence by the College (refer to Exhibit 5). Student 1 testified before the Ontario Superior Court; she was cross-examined; her testimony was deemed credible by the Court; and the Ontario Court of Appeal subsequently found the lower Court’s findings to be reasonable.
Based on the evidence in the Brief of Court Documents, the College has proven, on a balance of probabilities, that the Member engaged in an inappropriate personal relationship with Student 1 and that he engaged in a sexual relationship with the student, even though he did not have sexual relations with the student. On several occasions, the Member kissed Student 1, embraced the student and held hands with the student. The Member admitted that his conduct was inappropriate and ended his teaching career.
The Committee notes that the Member was found guilty of professional misconduct on December 15, 2016 and his Certificate of Qualification and Registration was revoked for engaging in similarly unacceptable conduct involving another student.
The Committee finds the Member’s recurrent conduct unacceptable. He abused his position of trust and authority as a member of the teaching profession. Accordingly, the Committee finds that the Member’s sexual abuse of Student 1 constitutes professional misconduct contrary to Ontario Regulation 437/97, subsections 1(5), 1(7) [prior to the 2008 amendment], 1(15), 1(18) and 1(19). His misconduct is a serious violation of his responsibilities as a teacher and has undermined public trust in the teaching profession.
SUBMISSIONS ON PENALTY
College Counsel submitted that revocation of the Member’s Certificate of Qualification and Registration would be the only appropriate penalty in the circumstances. Although another panel of the Discipline Committee had previously revoked the Member’s Certificate of Qualification and Registration (on December 15, 2016) for another instance of sexual misconduct involving a different student, College Counsel submitted that it would be appropriate to revoke the Member’s certificate a second time.
In support of this request, the College produced College of Nurses of Ontario v. Mark Dumchin, 2016 ONSC 626 (“Dumchin”) and Ontario College of Teachers v. Graziano, 2016 ONOCT 19 (“Graziano”). In Dumchin, the Divisional Court found that a panel of the Discipline Committee of the College of Nurses of Ontario had jurisdiction to revoke Mr. Dumchin’s certificate of registration even though he had previously resigned his certificate prior to the discipline hearing, pursuant to section 14 of its enabling law (which is a continuing jurisdiction provision similar to subsection 14(5) of the Act).
In Graziano, another panel of the Discipline Committee found that revocation of Mr. Graziano’s Certificate of Qualification and Registration was appropriate, even though the Member in question had previously resigned, retired or whose Certificate had been revoked prior to the hearing. College Counsel maintained that the Member’s Certificate of Qualification and Registration ought similarly to be revoked a second time. According to College Counsel, the Member continued to be subject to the Committee’s jurisdiction, including its jurisdiction to order penalty, pursuant to section 14(5) of the Act.
College Counsel argued that it was appropriate to revoke the Member’s certificate a second time for several reasons. Firstly, his conduct was extremely serious: he was involved in a sexual relationship with a student. Secondly, the College has a duty to act in every case of proven professional misconduct, to ensure transparency and protect the public. Thirdly, should the Member seek reinstatement after serving his sentence, both the prior revocation and the current revocation of his certificate would appear on the public register and would indicate the serious and repeated nature of his misconduct. The College drew the Committee’s attention to two decisions in which revocation was ordered under similar circumstances in which members of the College had engaged in sexual relationships with students without having sexual relations: Ontario College of Teachers v. Khan, 2013 ONOCT 57 and Ontario College of Teachers v. Deans, 2012 ONOCT 11.
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
After carefully reviewing the evidence and submissions of College Counsel, and the legal authorities presented, the Committee finds that the revocation of the Member’s Certificate of Qualification and Registration is appropriate in the circumstances and accepts the submissions by College Counsel in this respect.
It is appropriate to revoke the Member’s Certificate of Qualification and Registration as penalty for his misconduct, regardless of the fact that his Certificate of Qualification and Registration has already been revoked for another instance of misconduct. The Committee must review the present case and decide on the most appropriate penalty in the circumstances.
In the case before us, the Member’s misconduct was serious. He engaged in a sexual relationship with a student, in which he kissed, embraced and held hands with the student on several occasions. The Member had also engaged in a similar relationship with another student, which resulted in the first revocation of his Certificate of Qualification and Registration. The Committee will not condone sexual relationships between teachers and students, no matter who initiated the relationship.
Members of the teaching profession occupy a unique position of trust and authority and the Member seriously and repeatedly abused this position. Revocation is the only appropriate penalty for this type of misconduct. This penalty serves as notice to the profession that the consequences of such misconduct are serious, even if the Member in question has already resigned, retired or whose Certificate has been revoked in a prior hearing. Further, the penalty is in line with the case law above which was produced by the College. In addition, the revocation will appear in the public register as a second penalty for serious misconduct and will extend the period of time before the Member could potentially seek reinstatement, should he ever contemplate a return to teaching.
Publication of an accused member’s name is now compulsory under section 45.1 of the Act. Accordingly, the Committee’s decision and reasons, with the Member’s name, will be posted on the College website and a summary of its decision and reasons, with the Member’s name, will be published 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: November 21, 2017
Jean-Luc Bernard, OCT
Chair, Discipline Panel
Brigitte Bidal Piquette, OCT
Member, Discipline Panel
Sara Nouini, OCT
Member, Discipline Panel
Footnotes
- Subsection 40(1.1) of the Act was cited in the Notice of Hearing, but this provision was repealed with the coming into force of the amendments to the Act on December 5, 2016.
- College Counsel entered in evidence the Ontario College of Teachers Registered Member Information respecting Stéphane Gilbert (Exhibit 2), which shows that the Member was a member of the College at the time of the alleged incidents.
- See also Ontario College of Teachers v. Ostainvil, 2016 ONOCT 93, page 23.