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
Jeffery David Rafael, a member of the Ontario College of Teachers.
PANEL: Tom Potter, Chair
Shanlee Linton, OCT
Vicki Shannon, OCT
BETWEEN: ) Eli Mogil,
) McCarthy Tétrault LLP, ) for Ontario College of Teachers,
ONTARIO COLLEGE OF TEACHERS ) assisted by Daniela Spano,
) Law Clerk
– and – )
JEFFERY DAVID RAFAEL ) Saneliso Moyo,
(CERTIFICATE #215131) ) Ursel Phillips Fellows Hopkinson LLP
) for Jeffery David Rafael
) Julie Maciura,
) Steinecke Maciura LeBlanc, ) Independent Legal Counsel
) ) Heard: November 2, 2017
DECISION, REASONS FOR DECISION AND ORDER
This matter came on for hearing before a panel of the Discipline Committee (the “Committee”) on November 2, 2017 at the Ontario College of Teachers (the “College”) at Toronto.
A Notice of Hearing dated October 2, 2015 (Exhibit 1) was served on Jeffery David Rafael (the “Member”), requesting his presence on October 30, 2015 to set a date for hearing, and specifying the charges. The hearing was subsequently set for November 2, 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 Jeffery David Rafael 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 verbally, contrary to Ontario Regulation 437/97, subsection 1(7);
(c) he abused a student or students physically, contrary to Ontario Regulation 437/97, subsection 1(7.1);
(d) he abused a student or students psychologically or emotionally, contrary to Ontario Regulation 437/97, subsection 1(7.2);
(e) 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 as defined in section 1 of the Act;
(f) 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);
(g) 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
(h) he engaged in conduct unbecoming a member, contrary to Ontario Regulation 437/97, subsection 1(19).
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:
Jeffery David Rafael 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 respecting the Member.
At all material times, the Member was employed by the Greater Essex County District School Board (the “Board”) as a [XXX] teacher at [XXX] School (the “School”) in Windsor, Ontario.
At all material times, Student 1 was a male student of the School and Student 2 was a female student of the School.
Marijuana in the Member’s Van
On or about January 13, 2012, a Community and Youth Worker at the School went to the principal and asked her to meet with Student 1 because he had something to share. Attached hereto and marked as Exhibit “B” is a copy of the Community and Youth Worker’s typed statement dated January 13, 2012.
Student 1 told the principal that a few days earlier, on or about January 11, 2012, he went to the Member’s [XXX] class to get a cigarette from a student in the class like he usually does. Student 1 noticed that another student was cleaning the Member’s van.
Student 1 took some marijuana cigarettes (“roaches”) from the Member’s van which was parked at the School [XXX]. Student 1 told the principal that he knew that the Member kept drugs in his van because he had seen them when cleaning the Member’s van in the past. Student 1 also told the principal that he had taken roaches for himself from the Member’s van on previous occasions.
On occasion, both Student 1 and another student took some roaches from the Member’s van. The Member noticed that some roaches were missing from his van. He told other students that Student 1 was a thief.
Another student heard the Member say that he wanted to punch Student 1 in the face.
Student 1 reported to the superintendent that he went to the Member’s classroom two days after the incident and asked the Member why he was calling him a thief. Another student reported to the principal that the Member said words to the effect of “you know what I’m talking about and I want it back.” Student 1 reported that he replied to the effect of “I can get you fired. I’m going to the principal and telling her what you are doing. I don’t care that you are in a union. I’ll make sure that you get fired.” Student 1 reported that the Member then told him to get out of the [XXX].
The Member did not report the theft to the principal immediately, but did report it to the principal a few days later.
Boundaries
Student 2 was in the Member’s Grade [XXX] class in November 2010. Student 2 and another [XXX] student were the only [XXX] in the class.
The Member made inappropriate remarks to Student 2 and failed to maintain appropriate boundaries with Student 2 and touched Student 2 when he ought not to have done so.
Member’s Employment
- The Member resigned his assignment effective October 31, 2015.
PLEA OF NO CONTEST
By this document, the Member pleads no contest to the truth of the facts and exhibits referred to in 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), 1(7.1), 1(7.2), 1(7.3), 1(15), 1(18) and 1(19). The Member hereby acknowledges that the Uncontested Facts constitute conduct which is sexual abuse of Student 2 as that term was defined in Section 1 of the Act before it was amended in December 2016.
By this document2 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 prove the case against him and the right to have a hearing;
(d) he understands that depending on the penalty ordered by the Discipline Committee, the decision of the Committee and a summary of its reasons, including reference to 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.
- 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), 1(7.1), 1(7.2), 1(7.3), 1(15), 1(18) and 1(19). The Member also engaged in sexual abuse of a student of a nature defined in paragraph (c) of section 1 of the Act, before it was amended in December 2016.
REASONS FOR DECISION
The Member did not contest the facts and exhibits referred to in paragraphs 1 to 13 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), 1(7.1), 1(7.2), 1(7.3), 1(15), 1(18) and 1(19).
Paragraphs 4-10 and 12 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 4, 7-9 and 12 of the Statement of Uncontested Facts and Plea of No Contest demonstrate that the Member abused a student or students verbally, contrary to Ontario Regulation 437/97, subsection 1(7).
Paragraph 12 of the Statement of Uncontested Facts and Plea of No Contest demonstrates that the Member abused a student or students physically, contrary to Ontario Regulation 437/97, subsection 1(7.1).
Paragraphs 4, 7-9 and 12 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).
Paragraph 12 of the Statement of Uncontested Facts and Plea of No Contest demonstrates that the Member 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 as defined in paragraph (c) of section 1 of the Act before it was amended in December 2016.
Paragraphs 4-10 and 12 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 4-10 and 12 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 4-10 and 12 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).
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 within 120 days of the date of the Order of the Committee, the Member shall appear before the Committee to receive a reprimand which will be delivered in person at the offices of the Ontario College of Teachers, 101 Bloor Street W., Toronto, Ontario, and the fact of the reprimand is to be recorded on the Register of the Ontario College of Teachers (the “Register”);
direct the Registrar to suspend the Certificate of Qualification and Registration of the Member for a period of 12 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; and
direct the Registrar 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 or any other position for which a Certificate of Qualification and Registration is required (collectively referred to as a “Teaching Position”), the Member shall enrol in and successfully complete at his own expense, a course(s) of instruction pre-approved by the Registrar regarding appropriate boundaries and boundary violation issues and professional ethics subject to the following conditions:
(i) the Member will provide to the course practitioner(s) approved by the Registrar, a copy of the Statement of Uncontested Facts and Plea of No Contest and Joint Submission on Penalty documents made exhibits at the hearing of this matter, and the Decision, Reasons for Decision and Order of the Discipline Committee; and
(ii) following review of the documents noted at paragraph (i) above, the course practitioner(s) will provide to the Registrar, for approval, a syllabus for the proposed course(s) which specifically addresses the Discipline Committee’s concerns regarding the Member’s professional misconduct. The syllabus proposed by the course practitioner(s) shall also specify the length of the course(s) to be undertaken by the Member, and the assignments to be completed by the Member;
(b) within 30 days of his completion of the course(s) outlined in (a) above, the Member shall provide to the Registrar a written report from the course practitioner(s) which:
(i) confirms that the Member has successfully completed the course(s) and reports on the progress of the Member with respect to addressing the outlined goals of the course(s).
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.
REASONS FOR PENALTY DECISION
The Committee accepts the penalty jointly proposed by the parties. The Committee recognizes that, once it ensures that it has jurisdiction to make the order requested, the law confines the 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. The Committee finds that the penalty proposed in the Joint Submission on Penalty is proportionate to the misconduct committed by the Member and is reasonable given the circumstances of this case. The penalty proposed by the parties is also within a reasonable range, based on the following analogous cases presented by College Counsel: Ontario College of Teachers v. Corrigan, 2007 ONOCT 12 and Ontario College of Teachers v. Gibson, 2015 ONOCT 29.
The Committee finds that the Member’s conduct warrants a reprimand by his peers. The Member knowingly kept marijuana cigarettes in his van that was parked on school property[XXX]. The Committee is disturbed by the fact that the Member knowingly stored the drugs in his van to which students had access and that students could see the marijuana cigarettes, which showed the Member’s blatant disregard for the wellbeing and safety of his students. Members of the profession are expected to be positive role models and to ensure a safe learning environment. The Member’s behaviour demonstrated disdain for these expectations. The Committee is concerned that the Member failed to maintain appropriate boundaries by bringing drugs onto school property and knowingly giving students access to them, by making inappropriate sexual remarks and by inappropriately touching Student 2 when he ought not to have done so. 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.
Given the severity of the Member’s conduct, the Committee finds that a twelve month suspension is reasonable and appropriate and will serve as a specific deterrent to the Member and as a general deterrent to other members of the teaching profession. It is an expectation that members of the teaching profession maintain appropriate boundaries with students at all times. The Member’s possession of drugs on school property, his inappropriate physical contact with a [XXX]student and remarks of a sexual nature made to a [XXX] student demonstrated a significant lack of professional judgment and undermined the reputation of the teaching profession. The Member’s conduct constituted a serious breach of the trust placed in him by students and their parents. The twelve-month suspension of the Member’s certificate is appropriate to reinforce the seriousness of the Member’s misconduct.
The course or courses of instruction regarding appropriate boundaries and boundary violation issues and professional ethics is intended to assist in the rehabilitation of the Member. By learning about appropriate boundaries and boundary violation issues as well as professional ethics, the Member will have the opportunity to reflect on the unacceptable nature of his conduct and he will be less likely to engage in similar misconduct in the future. The coursework will remind the Member of his obligations as a teacher and is intended to help him to make better decisions in any future interactions with students, should he return to a teaching position.
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: November 14, 2017
Tom Potter
Chair, Discipline Panel
______________________________ Shanlee Linton, OCT
Member, Discipline Panel
Vicki Shannon, OCT
Member, Discipline Panel