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
Michael Albert Russell, OCT, a member of the Ontario College of Teachers.
PANEL: Vicki Shannon, OCT, Chair Sara Nouini, OCT Tom Potter
BETWEEN:
ONTARIO COLLEGE OF TEACHERS Stephanie Sugar, McCarthy Tétrault LLP, for Ontario College of Teachers, assisted by Annie Lacroix, Law Clerk
– and –
MICHAEL ALBERT RUSSELL (CERTIFICATE #255758) Kirsty Niglas-Collins, KNC Law, for Michael Albert Russell
Erica Richler, Steinecke Maciura LeBlanc, Independent Legal Counsel
Heard: November 29, 2017
DECISION, REASONS FOR DECISION AND ORDER
This matter came on for hearing before a panel of the Discipline Committee (the “Committee”) on November 29, 2017 at the Ontario College of Teachers (the “College”) at Toronto.
A Notice of Hearing dated November 23, 2016 (Exhibit 1) was served on Michael Albert Russell (the “Member”), requesting his presence on December 15, 2016 to set a date for hearing, and specifying the charges. The hearing was subsequently set for November 29, 2017.
The Member was not in attendance for the hearing, but had legal representation.
THE ALLEGATIONS
The allegations against the Member in the Notice of Hearing are as follows:
IT IS ALLEGED that Michael Albert Russell is guilty of professional misconduct as defined in subsections 30(2) and 40(1.1)1 of the Ontario College of Teacher’s 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 or students psychologically or emotionally, contrary to Ontario Regulation 437/97, subsection 1(7.2);
(c) he abused a student or students sexually, contrary to Ontario Regulation 437/97, subsection 1(7.3) and/or engaged in sexual abuse of a student or students as defined in section 1 of the Act;
(d) 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 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);
(f) he engaged in conduct unbecoming a member, contrary to Ontario Regulation 437/97, subsection 1(19);
(g) he failed to strive at all times to achieve and maintain the highest degree of professional competence and to uphold the honour, dignity and ethical standards of the teaching profession, contrary to Section 13 of the Regulation made under the Teaching Profession Act (the “TPA Regulation”);
(h) he failed to show consistent justice and consideration in all his relations with pupils, contrary to subsection 14(d) of the TPA Regulation;
(i) he failed to concern himself with the welfare of his pupils while they were under his care, contrary to subsection 14(f) of the TPA Regulation; and
(j) he failed to comply with the Education Act, Revised Statutes of Ontario, 1980, chapter 129, and specifically subsection 235(1)(c).
STATEMENT OF UNCONTESTED FACTS
Counsel for the College advised the Committee that an agreement had been reached on the facts and introduced a Statement of Uncontested Facts and Plea of No Contest (Exhibit 2), which provides as follows:
Michael Albert Russell is a member of the Ontario College of Teachers. Attached hereto and marked as Exhibit “A” is a copy of the Ontario College of Teachers Registered Member Information with respect to the Member.
At all material times, the Member was employed by the Peel District School Board (the “Board”) as a [XXX] teacher and [XXX]coach.
From about September 1989 to about June 1994, the Member taught at [XXX] School (the “School”). The Member was also a [XXX] coach at the School and a coach with the Ontario [XXX].
From about September 1990 to about June 1995, Student 1 was a male student at the School. Throughout most of his [XXX] school years, Student 1 played [XXX]on his School team and/or an [XXX]team.
The Member was Student 1’s Grade [XXX] [XXX] teacher. In Grades [XXX] through[XXX], the Member at times coached Student 1’s [XXX] team, at times coached Student 1’s School [XXX] team, and at other times assisted with coaching one of those teams.
In or around September 1994, the Member began teaching at another [XXX] school with the Board.
In the academic year 1994-1995, Student 1 was in his [XXX] year. Student 1 graduated from the School in [XXX].
While the Member taught at the School, he engaged in an inappropriate personal relationship with Student 1 which included:
(a) Making inappropriate jokes, including jokes of a sexual nature; and
(b) Discussing the personal life of Student 1, including Student 1’s sexual relationships.
- In or around November 1994, the Member began a sexual relationship with Student 1. The relationship included sexual touching and sexual intercourse. The relationship continued throughout the 1994-1995 academic year, and thereafter until around March 2003.
PLEA OF NO CONTEST
By this document2 the Member does not contest, for the purposes of this proceeding only, the truth of the facts and exhibits referred to in the paragraphs above (the “Uncontested Facts”).
The Member hereby acknowledges that the Uncontested Facts constitute conduct which is professional misconduct and pleads no contest to the allegations of professional misconduct against him, being more particularly breaches of Ontario Regulation 437/97, subsections 1(5), 1(7.2), 1(7.3), 1(15), 1(18), and 1(19), subsection 235(1)(c) of the Education Act, R.S.O. 1980, c. 129, and sections 13, 14(d), and 14(f) of the Regulation made under the Teaching Profession Act. The Member also acknowledges that he engaged in sexual abuse of a student of a nature defined in Section 1 of the Act.
By this document the Member states that:
(a) he understands fully the nature of the allegations against him;
(b) he understands that by signing this document he is consenting to the evidence as set out in the Uncontested Facts being presented to the Discipline Committee;
(c) he understands that by pleading no contest to the allegations, he is waiving the right to require the College to otherwise prove the case against him and the right to have a hearing;
(d) he understands that the Discipline Committee’s decision and reasons shall be published on the College’s website, and that a summary of the Discipline Committee’s decision and reasons, including his name, shall be published in the official publication of the College;
(e) he understands that any agreement between him and counsel for the College with respect to the penalty proposed does not bind the Discipline Committee; and
(f) he understands and acknowledges that he is executing this Agreement voluntarily, unequivocally, and with the advice of legal counsel.
The Member provides this plea of no contest pursuant to Rule 3.02 of the Rules of Procedure of the Discipline Committee under protection of the Evidence Act, R.S.O. 1990, chapter E. 23, for the purpose of this proceeding under the Ontario College of Teachers Act, 1996, chapter 12, and for no other purpose. The Member’s plea of no contest does not constitute an admission by the Member as to the facts or findings in any other civil, criminal or administrative proceeding.
In light of the Uncontested Facts and circumstances and the plea of no contest, the Ontario College of Teachers and the Member submit that the Discipline Committee find the Member guilty of professional misconduct.
DECISION
Having considered the Statement of Uncontested Facts and Plea of No Contest and the submissions of the parties, the Committee finds that the facts support a finding of professional misconduct. In particular, the Committee finds that the Member committed acts of professional misconduct as alleged, contrary to Ontario Regulation 437/97, subsections 1(5), 1(7.2), 1(7.3), 1(15), 1(18) and 1(19); section 235(1)(c) of the Education Act, R.S.O, 1980, c.129; and sections 13, 14(d), and 14(f) of the Regulation made under the Teaching Profession Act. The Member also engaged in sexual abuse of a student of a nature defined in section 1 of the Act.
REASONS FOR DECISION
The Member did not contest the facts and exhibits referred to in paragraphs 1-9 of the Statement of Uncontested Facts and Plea of No Contest and pleaded no contest to the allegations of professional misconduct against him. He acknowledged and the Committee accepts that the Uncontested Facts constitute conduct which is professional misconduct, contrary to Ontario Regulation 437/97, subsections 1(5), 1(7.2), 1(7.3), 1(15), 1(18) and 1(19); section 235(1)(c) of the Education Act, R.S.O, 1980, c.129; and sections 13, 14(d), and 14(f) of the Regulation made under the Teaching Profession Act. The Member also engaged in sexual abuse of a student of a nature defined in section 1 of the Act.
Paragraphs 8 and 9 of the Statement of Uncontested Facts and Plea of No Contest demonstrate that the Member failed to maintain the standards of the profession, contrary to Ontario Regulation 437/97, subsection 1(5).
Paragraphs 8 and 9 of the Statement of Uncontested Facts and Plea of No Contest demonstrate that the Member abused a student or students psychologically or emotionally, contrary to Ontario Regulation 437/97, subsection 1(7.2).
Paragraphs 8 and 9 of the Statement of Uncontested Facts and Plea of No Contest demonstrate that the Member abused a student or students sexually, contrary to Ontario Regulation 437/97, subsection 1(7.3) and engaged in sexual abuse of a student or students as defined in section 1 of the Act.
Paragraphs 8 and 9 of the Statement of Uncontested Facts and Plea of No Contest demonstrate that the Member failed to comply with the Education Act, Revised Statutes of Ontario, 1990, chapter E.2, and specifically subsection 264(1) thereof or the Regulations made under that Act, contrary to Ontario Regulation 437/97, subsection 1(15).
Paragraphs 8 and 9 of the Statement of Uncontested Facts and Plea of No Contest demonstrate that the Member committed acts that, having regard to all the circumstances, would reasonably be regarded by members as disgraceful, dishonourable or unprofessional, contrary to Ontario Regulation 437/97, subsection 1(18).
Paragraphs 8 and 9 of the Statement of Uncontested Facts and Plea of No Contest demonstrate that the Member engaged in conduct unbecoming a member, contrary to Ontario Regulation 437/97, subsection 1(19).
Paragraphs 8 and 9 of the Statement of Uncontested Facts and Plea of No Contest demonstrate that the Member failed to strive at all times to achieve and maintain the highest degree of professional competence and to uphold the honour, dignity and ethical standards of the teaching profession, contrary to Section 13 of the Regulation made under the TPA Regulation.
Paragraphs 8 and 9 of the Statement of Uncontested Facts and Plea of No Contest demonstrate that the Member failed to show consistent justice and consideration in all his relations with pupils, contrary to subsection 14(d) of the TPA Regulation.
Paragraphs 8 and 9 of the Statement of Uncontested Facts and Plea of No Contest demonstrate that the Member failed to concern himself with the welfare of his pupils while they were under his care, contrary to subsection 14(f) of the TPA Regulation.
Paragraphs 8 and 9 of the Statement of Uncontested Facts and Plea of No Contest demonstrate that the Member failed to comply with the Education Act, Revised Statutes of Ontario, 1980, chapter 129, and specifically subsection 235(1)(c).
JOINT SUBMISSION ON PENALTY
Through a Joint Submission on Penalty (Exhibit 4), the parties jointly submitted that the appropriate penalty to be imposed in this matter would be that the Committee:
direct that the Member receive a reprimand. The fact of the reprimand is to be recorded on the Register of the Ontario College of Teachers (the “Register”). Submissions will be made on the issue of whether the reprimand should be delivered in written form or in person; and
direct the Registrar of the Ontario College of Teachers to immediately revoke the Certificate of Qualification and Registration of the Member, which Certificate the Member is to immediately surrender to the Registrar.
SUBMISSIONS WITH RESPECT TO THE FORM OF THE REPRIMAND
College Counsel
College Counsel submitted that an oral reprimand is appropriate. The oral reprimand will act as a specific deterrent and as a denunciation of the Member’s misconduct when he faces a panel of his peers to receive the reprimand in person. College Counsel further submitted that ordering an oral reprimand will act as a general deterrent because it sends a message to the public and other members of the profession that this type of behaviour should be denounced in the strongest terms. In support of the College’s position that the reprimand should be delivered in person, College Counsel presented two cases where a member was found guilty of sexual abuse and an oral reprimand was ordered: Ontario College of Teachers v. Ashbaugh, 2017 ONOCT 45 and Ontario College of Teachers v. Earl, 2017 ONOCT 39.
College Counsel further submitted that if an oral reprimand is ordered, the Committee should also consider directing that a written reprimand be delivered if the Member fails to attend to receive his oral reprimand.
Member’s Counsel
Member’s Counsel submitted that the impulse to denounce the Member’s misconduct is understandable. However, Member’s Counsel submitted that retribution is not a principle of sentencing at the College. Member’s Counsel submitted that many of the sentencing principles are not applicable when a Member’s Certificate of Qualification is revoked. According to Member’s Counsel, the primary purpose of the reprimand is rehabilitation and specific deterrence and neither of these principles support an order for an oral reprimand. Member’s Counsel submitted that the Member chose to participate in the discipline process by reaching an agreement with the College and chose not to engage in a full contested hearing. Member’s Counsel stated that if the Committee were to order a written reprimand they would be sending a message to the members of the profession that cooperation with the College would, in some way, be reflected in the penalty decision. Member’s Counsel presented two cases where the findings of misconduct were analogous to the Member’s case and the penalties included written reprimands: Ontario College of Teachers v. St Louis, 2017 ONOCT 28 and Ontario College of Teachers v. Nolan, 2017 ONOCT 36.
Member’s Counsel agreed with College Counsel’s submissions that, if an oral reprimand is ordered, the Committee should also consider directing that a written reprimand be delivered if the Member fails to attend to receive his oral reprimand.
PENALTY DECISION
The Committee accepts the Joint Submission on Penalty presented by the parties, and makes an order in accordance with its terms, as set out above.
With respect to the issue of the form of the reprimand, the Committee directs that the reprimand be delivered in person within 6 months of the Order of the Committee. The Committee further directs that if the Member has not received his oral reprimand within six months of the date of the Committee’s Order, he shall receive a written reprimand instead of the oral reprimand, in accordance with Rule 18 of the Rules of Procedure of the Discipline Committee and of the Fitness to Practise Committee.
REASONS FOR PENALTY DECISION
The Committee recognizes that the Member’s conduct involving the sexual abuse of a student is one of the enumerated acts of professional misconduct listed in subsection 30.2(2) of the Act. Pursuant to subsection 30.2(1) of the Act, the Committee therefore must make an order: (a) requiring that the Member be reprimanded by the Committee; and (b) directing the Registrar to revoke any certificate held by the Member under the Act. The Committee notes that it has no discretion in this regard.
Although the Member’s misconduct preceded the enactment of the mandatory penalty provisions set out at section 30.2 of the Act, the Committee must nevertheless order the mandatory penalties set out above. The transitional provision at subsection 63.1(5) of the Act expressly provides that section 30.2 of the Act applies to acts of professional misconduct involving the sexual abuse of a student that occurred before the amendments to the Act received Royal Assent (i.e. in December 2016).
With respect to the form of the reprimand, the Committee recognizes that it has discretion in this regard and finds that an oral reprimand is warranted. The Committee considered the submissions of both parties. The Committee received no evidence from Member’s Counsel to indicate that the Member was not able to attend in person to receive an oral reprimand. The Committee recognizes that the Member participated and cooperated in the discipline process, which conserved the judicial resources that would have been necessary to conduct a contested hearing. However, delivering the reprimand in person allows the Committee to directly address the Member and to denounce his conduct in the strongest terms, which has greater impact than delivering a reprimand in writing. The Committee believes that delivering an oral reprimand will serve as a specific and general deterrent and will more adequately protect the public interest in this case.
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 meets the principle of serving and protecting the public interest.
Date: December 11, 2017
Vicki Shannon, OCT Chair, Discipline Panel
Sara Nouini, OCT Member, Discipline Panel
Tom Potter Member, Discipline Panel