WARNING: Publication of any information that could identify the victim or a witness in this matter is prohibited pursuant to sections 517(1) and 539 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
Robert Lubowieski Lutczyk, a member of the Ontario College of Teachers at all material times.
PANEL: Jane Ishibashi, Chair Jean-Luc Bernard, OCT
Sara Nouini, OCT
BETWEEN: ) Ava Arbuck,
) McCarthy Tétrault LLP, ) for Ontario College of Teachers,
ONTARIO COLLEGE OF TEACHERS ) assisted by Daniela Spano,
) Law Clerk
- and – )
ROBERT LUBOWIESKI LUTCZYK ) Robert Lubowieski Lutczyk
(CERTIFICATE #508910) ) is self-represented and was
) not present
) ) ) Erica Richler,
) Steinecke Maciura LeBlanc, ) Independent Legal Counsel ) ) ) Heard: November 21, 2017
DECISION, REASONS FOR DECISION AND ORDER
This matter came on for hearing before a panel of the Discipline Committee (the “Committee”) on November 21, 2017 at the Ontario College of Teachers (the “College”) at Toronto.
A Notice of Hearing (Exhibit 1), dated March 28, 2017 was served on Robert Lubowieski Lutczyk (the “Member”), requesting his attendance before the Committee on April 18, 2017 to set a date for a hearing, and specifying the charges. The hearing was subsequently set for November 21, 2017.
The Member was not in attendance for the hearing and did not have legal representation.
College Counsel submitted an Affidavit of Daniela Spano (Exhibit 2) sworn November 17, 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 College Counsel’s multiple communications with the Member and provides proof of service of all required documents. The Member was served with: the Notice of Hearing; the Ontario College of Teacher’s Act; Ontario Regulation 437/97; the Rules of Procedure of the Discipline Committee and of the Fitness to Practise Committee (the “Committee’s Rules”); a disclosure brief; notice of the date for the set date hearing and subsequent hearing date; and various letters explaining the process before the Discipline Committee, the Member’s various procedural options, the College’s evidence, and the penalty being sought. College Counsel’s letters also included an invitation to participate in the set date hearing via non-conventional means as well as an explanation of the intention to proceed in the Member’s absence should he choose not participate in the set date hearing or the 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. The Committee therefore heard this matter in the absence of the Member.
PUBLICATION BAN
The Committee received a certified copy of the Information (see Exhibit 4, tab A). Attached as an exhibit to this Information are two publication bans: Justice McLean ordered the first publication ban pursuant to section 517(1) of the Criminal Code of Canada on September 5, 2013; Justice Block ordered the second publication ban pursuant to section 539 of the Criminal Code of Canada on April 22, 2014. These publication bans were in effect for the Member’s criminal proceedings (see Exhibit 4, tab C, D, E and F). The Committee is required to uphold these publication bans. 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 the Member is guilty of professional misconduct as defined in the Ontario College of Teachers Act, 1996 (the “Act”) in that:
(a) he contravened a law, the contravention of 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);
(b) 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
(c) he engaged in conduct unbecoming a member, contrary to Ontario Regulation 437/97, subsection 1(19).
PARTICULARS OF THESE ALLEGATIONS ARE AS FOLLOWS:
Robert Lubowieski Lutczyk is a member of the Ontario College of Teachers.
At all material times, the Member was employed as an occasional teacher by the Kawartha Pine Ridge District School Board and the Durham Catholic District School Board.
On or about October 17, 2012, the Member was charged with numerous criminal offences arising out of an incident that occurred on or about October 15, 16 and 17, 2012.
On or about December 1, 2015, in the Superior Court of Justice, the Member pleaded guilty to and was found guilty of the following offences that occurred between October 15 and October 16, 2012:
(a) kidnapping a male adult using a restricted and/or prohibited firearm with intent to cause him to be confined against his will, contrary to section 279(1.1) of the Criminal Code of Canada;
(b) possessing a prohibited firearm without lawful excuse, namely an Armi Jager Rifle, together with readily accessible ammunition capable of being discharged in said firearm, without being the holder of an authorization or licence, contrary to section 95(2) of the Criminal Code of Canada;
(c) possessing a prohibited firearm, namely a Langenhan handgun, together with readily accessible ammunition capable of being discharged in the said firearm, without being the holder of an authorization or licence, contrary to section 95(2) of the Criminal Code of Canada.
On or about February 26, 2016, in the Superior Court of Justice, the Court sentenced the Member to a total of eight years and four months in the penitentiary, and made other ancillary orders.
On or about October 16, 2013, the Kawartha Pine Ridge District School Board terminated the Member’s employment. On or about March 7, 2016, the Durham Catholic District School Board terminated the Member’s employment.
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 Robert Lubowieski Lutczyk (Exhibit 3), 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. Robert Lubowieski Lutczyk (Exhibit 4), which contains the following documents:
Certified Copy of Information;
Certified Copy of Indictment;
Certified Copy of Transcript of Plea Proceedings before the Honourable Mr. Justice A. Sosna, Superior Court of Justice, Oshawa, Ontario, dated December 1, 2015;
Certified Copy of Transcript of Submissions on Sentence before the Honourable Mr. Justice A. Sosna, Superior Court of Justice, Oshawa, Ontario, dated February 4, 2016;
Certified Copy of Transcript of Reasons for Sentence before the Honourable Mr. Justice A. Sosna, Superior Court of Justice, Oshawa, Ontario, dated February 26, 2016;
Certified Copy of Information; and
Certified Copy of Transcript of Excerpt of Proceedings before the Honourable Justice M.T. Devlin, Superior Court of Justice, Oshawa, Ontario, dated February 4, 2016.
The evidence presented in Exhibit 4 confirms that on December 1, 2015, in the Superior Court of Justice, the Member pled guilty to one count of using a restricted and/or prohibited firearm while kidnapping and two counts of possession of prohibited or restricted firearm with ammunition, contrary to sections 279(1.1) and 95(2) of the Criminal Code of Canada.
SUBMISSIONS ON FINDING
College Counsel described the Member’s criminal history in extensive detail and submitted that the Member’s case involved the commission of multiple very serious offenses, namely kidnapping someone at gunpoint and possessing a prohibited or restricted firearm. These offenses directly relate to the Member’s suitability to hold a teaching certificate, can reasonably be regarded as conduct that is disgraceful, dishonourable or unprofessional, and constitute conduct that is unbecoming a member of the teaching profession. According to College Counsel, the Member’s conduct, as detailed in the record of the criminal proceedings (see Exhibit 4) and the resultant criminal convictions, provides an ample basis to justify a finding of professional misconduct under all of the heads of misconduct alleged in the Notice of Hearing. On December 1, 2015, the Member pled guilty to and was convicted of the three offenses described above (see Exhibit 4, tab C), he did not appeal his convictions, and the time for an appeal has expired.
DECISION
Having considered the evidence, onus and standard of proof, and the submissions made by College Counsel, 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(16), 1(18) and 1(19).
REASONS FOR DECISION
In accordance with the law of evidence and Rule 13.03 of the Committee’s Rules, inter alia, the Committee accepts the certified copies of two Court Informations and the Court Indictment as proof, in this case, that the Member committed the criminal offences outlined therein. The Member was found guilty and convicted of three criminal offences 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 two Court Informations and the Court Indictment, the findings of fact contained in the related decisions before the Superior Court of Justice involving the Member. The Committee further admits as incidental to the two Court Informations and the Court Indictment, transcripts of the proceedings at which the conviction occurred, transcripts of the proceedings at which the sentencing submissions were made, and transcripts of proceedings at which the reasons for sentence were given for the purposes of explaining the finding of guilt.
Based on the evidence contained within the Brief of Court Documents (Exhibit 4), the College has proven, on a balance of probabilities, that between October 15 and October 16, 2012, the Member kidnapped the Victim (“Solicitor A”) using a restricted and/or prohibited firearm and possessed prohibited firearms together with ammunition. Specifically, the evidence contained in the Brief of Court Documents proves, on a balance of probabilities, the following facts.
Background
The Member was a former city councillor and served as a commission officer in the Canadian Armed Forces for a decade before he was honourably discharged. When the Member was not re-elected as city councillor in 2000, he returned to building, renovating, and selling homes. One of the Member’s clients obtained a judgment against him, in relation to one of his construction projects, judgment for 100 percent garnishment of the Member’s wages for three years. The City of Oshawa enforced this judgment and the Member believed it was Solicitor A that gave the direction for this.
In 2003, the City of Oshawa alleged that a commercially zoned property owned by the Member’s father was not being used in accordance with the city’s bylaws. The Member believed that it was Solicitor A that directed the prosecution to proceed against the Member’s father.
During the time when the Member was not re-elected as city councillor he obtained a position at a Secondary School teaching construction technology, industrial design and mathematics. After two academic years, the student population was reduced by 60 percent and the Member’s teacher contract was not renewed.
The Kidnapping
On October 14, 2012 the Member first had the idea to kidnap Solicitor A. On October 15, 2012 the Member waited at Solicitor A’s house for him to return from a city council meeting. When Solicitor A pulled into his driveway and exited his vehicle the Member grabbed him by the arm, producing a handgun, and told him the gun was real and to get into the backseat of his car or he would shoot him in the leg. The Member then “floored it” with Solicitor A in the backseat of his car. The Member steered with his left hand and visibly held the gun in his right hand. When they arrived at the gate to a compound, the Member chained Solicitor A’s wrists together, preventing him from escaping the vehicle. Once inside the compound the Member replaced the chains with nylon ties so that he could walk Solicitor A into the storage unit. Inside this storage unit, there was cube van.
At one point Solicitor A convinced the Member to take him to Tim Horton’s for food and to let him sit in the front seat of the Member’s car. At Tim Horton’s the police spotted them and put a spotlight on the car. This prompted the Member to speed away, driving over the curb, and resulted in a high-speed car chase. The Member was driving approximately 100 km/hr, ran a red light, and stopped abruptly almost causing a police cruiser to collide with the Member’s car. The Member drove to the compound and crashed through the gates. The Member pushed Solicitor A out of the car, put the gun to his side, positioned Solicitor A between himself and the police (using him as a human shield), and began pulling him towards the door of the storage unit. Solicitor A managed to escape and ran towards the police. The Member entered the storage unit alone.
The Stand-off
The Member and the police engaged in a lengthy stand-off where the Member was arguing for no jail time and demanded to be paid the money he felt the city owed him. The Member also advised the police that he had a bomb in the storage unit. The police evacuated local businesses and the surrounding area.
The police required a substantial number of officers for assistance during this stand-off. They staffed a command post, required the assistance of three separate negotiation teams, deployed an explosive removal team, stationed a tactical unit, and flew in a psychiatric expert.
After 26 hours, the Member surrendered wearing body armour. The police searched the storage unit and found (among multiple other items) a cube van, three stolen licence plates, multiple restricted and/or prohibited weapons with over 15,000 rounds of ammunition, three propane tanks, materials to make a pipe bomb, three grenades, a gas mask, and an army helmet.
The Criminal Proceedings
The College has proven on a balance of probabilities that the Member was charged with 20 criminal offenses before the Superior Court of Justice (see Exhibit 4, tab B). The evidence presented in Exhibit 4, tab C confirms that on December 1, 2015, in the Superior Court of Justice, the Member pled guilty to one count of using a restricted and/or prohibited firearm while kidnapping and two counts of possession of prohibited or restricted firearm with ammunition, contrary to sections 279(1.1) and 95(2) of the Criminal Code of Canada.
On February 4, 2016, a Joint Submission on Penalty was presented to Justice A. Sosna (see Exhibit 4, tab D) proposing eight years and 4 months’ incarceration. On February 26, 2016, Justice A. Sosna accepted the Joint Submission on Penalty (see Exhibit 4, tab E) and sentenced the Member to a total of eight years and four months’ incarceration with a number of ancillary orders. The Member spent 40 months in pre-trial custody (specifically in segregation) and was credited 60 months for this time. Therefore, as of February 26, 2016, the Member was required to serve an additional three years and four months in prison. On February 26, 2016, the remainder of the charges were withdrawn (see Exhibit 4, tab E).
The Committee also finds that the evidence proves, on a balance of probabilities, that the Member had a prior diagnosis of Adjustment Disorder but this did not qualify him for a Not Criminally Responsible Defense and he was found fit to stand trial.
The Committee’s Conclusion regarding the Member’s Misconduct
The Committee finds that the Member’s misconduct was egregious. Although not directly related to the educational setting or the school community, the Member’s criminal conduct has undermined the public’s trust and confidence in the teaching profession. The Committee recognizes that the Member was under stress caused by various incidents in his life and also recognizes that he suffered from Adjustment Disorder at the time he committed the offenses. However, his conduct suggests that he planned and executed a course of action that demonstrated severe lack in judgment. Members of the teaching profession are expected to be positive role models at all times. The Member broke the law in a serious way and therefore fell far short of meeting this expectation. Accordingly, the Committee finds that the Member’s multiple contraventions of the law constitute acts of professional misconduct contrary to Ontario Regulation 437/97, subsections 1(16), 1(18) and 1(19).
SUBMISSIONS ON PENALTY
College Counsel submitted that revocation of the Member’s Certificate of Qualification and Registration is an appropriate penalty, considering the gravity of the Member’s misconduct. According to College Counsel, the Member’s conduct was serious and he demonstrated a complete lack of judgment. He held Solicitor A at gunpoint and against his will for almost three hours. He blamed Solicitor A for his financial and marital problems and reminded him, in a threatening manner, of his military background. The Member did not release Solicitor A; rather, Solicitor A escaped. The Member then continued to exercise poor judgment and engaged the police in a 26-hour stand-off. During each step of the kidnapping, the high-speed car chase, and the subsequent stand-off, the Member had many opportunities to stop what he was doing but instead chose to continue. College Counsel submitted that the Member’s complete lack of judgment continued over an extended period of time.
College Counsel outlined the mitigating and aggravating factors in the Member’s case. Some of the mitigating factors included the following: prior to October 2012, the Member was a dedicated and hard-working member of society; the Member received positive letters of reference that outline his passion for teaching and his teaching abilities; the Member holds a commendable status as a reservist in the Canadian Armed Forces; the Member has no prior criminal or disciplinary history; and the Member was “prepper” and did not amass all of the weapons in the compound for the purpose of the kidnapping but rather he was preparing for a natural disaster.
Some of the aggravating factors included the following: the Member was motivated by revenge; the Member was the architect and executor of the act; once he decided on his plan to kidnap Solicitor A he put a lot of effort into it; the Member’s animus towards Solicitor A combined with typical life stressors led him to act with extremely poor judgment; in spite of the Adjustment Disorder diagnoses, the Member had a full appreciation of his actions, the potential for escalation and the consequence of his actions; and the grave impact the Member’s conduct has had on Solicitor A and his family. College Counsel submitted that the aggravating factors outweigh the mitigating factors.
College Counsel referred the Committee to three cases involving criminal convictions of members for non-sexual offenses: Ontario College of Teachers v. Corry, 2008 ONOCT 13, Ontario College of Teachers v. Tollett, 2010 ONOCT 36, and Ontario College of Teachers v. Bulat, 2014 ONOCT 15. College Counsel submitted that each of these cases had some similarities to the Member’s case. College Counsel stated the criminal sentence imposed in each case was less than the sentence imposed in the Member’s case. College Counsel further submitted that revocation was ordered by the Committee in each case, therefore indicating that the penalty of revocation being sought in this matter is the appropriate penalty.
College Counsel submitted that revocation is the only appropriate penalty in this case. College Counsel stated that members of the teaching profession are role models and are expected to exercise good judgment at all times. Further, College Counsel submitted that there was nothing in the evidence to demonstrate that the Member accepted responsibility for the serious crimes he had committed. According to College Counsel, the Member has forfeited the right to hold a teaching certificate by virtue of the criminal enterprise in which he engaged. College Counsel submitted that revocation of the Member’s certificate will protect the public, will maintain the high standards of the profession, and will preserve public confidence in the teaching profession.
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 finds that revocation of the Member’s Certificate of Qualification and Registration is appropriate in this case as the crimes for which the Member was convicted are extremely serious. The Member’s unpredictable behaviour could endanger the safety of students, staff and the public at large. The Member’s egregious conduct discredits him in the eyes of the public and the profession. Revocation is also within a reasonable penalty range as establish by the case law presented by College Counsel. The Member’s criminal conduct was completely unacceptable and will not be tolerated by the College. Accordingly, the Member has forfeited the privilege of holding a teaching certificate in Ontario.
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.
Date: December 5, 2017
______________________________ Jane Ishibashi
Chair, Discipline Panel
______________________________ Jean-Luc Bernard, OCT Member, Discipline Panel
Sara Nouini, OCT
Member, Discipline Panel