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
David Norman Shackleton, a retired member of the Ontario College of Teachers.
PANEL: Ravi Vethamany, OCT, Chair
Merzak Damou, OCT
Jane Ishibashi
BETWEEN: ) Ava Arbuck,
) McCarthy Tétrault LLP, ) for Ontario College of Teachers,
ONTARIO COLLEGE OF TEACHERS ) assisted by Annie Lacroix,
) Law Clerk
– and – )
DAVID NORMAN SHACKLETON ) Robyn White,
(CERTIFICATE #438357) ) Cavalluzzo LLP, ) for David Norman Shackleton
) Erica Richler,
) Steinecke Maciura LeBlanc, ) Independent Legal Counsel
) ) Heard: December 5, 2017
DECISION, REASONS FOR DECISION AND ORDER
This matter came on for hearing before a panel of the Discipline Committee (the “Committee”) on December 5, 2017 at the Ontario College of Teachers (the “College”) at Toronto.
A Notice of Hearing dated May 8, 2017 (Exhibit 1) was served on David Norman Shackleton (the “Member”), requesting his presence on June 12, 2017 to set a date for hearing, and specifying the charges. The hearing was subsequently set for December 5, 2017.
The Member was in attendance for the hearing and had legal representation.
THE ALLEGATIONS
IT IS ALLEGED that David Norman Shackleton is guilty of professional misconduct as defined in 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 physically, contrary to Ontario Regulation 437/97, subsection 1(7.1);1
(c) he abused a student or students psychologically or emotionally, contrary to Ontario Regulation 437/97, subsection 1(7.2);
(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); and
(f) 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:
David Norman Shackleton is a retired 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 an [XXX] teacher at School (the “School”) in Mississauga, Ontario.
Academic Year 2015-2016
In the academic year 2015-2016, Student 1 and Student 2 were female students in the Member’s Grade [XXX] class at the School.
On or around December 7, 2015, the School principal visited the Member’s classroom while he was teaching his Grade [XXX] class. The principal observed the Member repeatedly touching Student 1 on the back. The Member also touched and/or held Student 1’s hands, and they would wave their hands together.
The principal met with Student 1, who reported that the Member would sometimes touch her hand, back or head. The principal interviewed a number of students regarding the December 7, 2015 incident.
A number of female students in the Member’s Grade [XXX] class reported inappropriate touching by the Member, which included that the Member:
(a) Placed his hand under Student 2’s shirt and touched and/or rubbed her back;
(b) Touched students on their backs, shoulders, head, hands and waist;
(c) Held students by the waist and rocked them in a sideways motion;
(d) Touched students while they were watching videos in class with the lights out.
- On February 9, 2016, the Board held a meeting with the Member to discuss its investigation of the matter. Attached hereto and marked as Exhibit “B” is a copy of the Board’s notes from the February 9, 2016 meeting.
Prior College History
In or around October 2011, students were observed sitting on the Member’s lap while watching videos on a computer terminal. A student was also observed resting their head on the Member’s lap. On January 17, 2012, the Member received a letter of discipline from the Board, a copy of which is attached hereto and marked as Exhibit “C”.
The conduct described in paragraph 8 was reported to the Ontario College Teachers. On November 27, 2012, the Ontario College of Teachers’ Investigation Committee issued a caution to the Member. The Member took a classroom management course and boundaries training.
In or around November 2012, a parent reported that the Member had aggressively grabbed her by the arm to bring her into the School. On another occasion, the Member had grabbed her arm and pulled her closer to hear what she was saying.
When the Board investigated the parent’s complaint, they also learned that the Member had allowed two of his students to sit on his lap while the Member marked their work. When a student was demonstrating sexual behaviour and inappropriately touching herself, the Member moved the student’s hand and in the process touched her underwear. On May 30, 2013, the Member received a letter of discipline from the Board, a copy of which is attached hereto and marked as Exhibit “D”.
The conduct described in paragraphs 10 and 11 was reported to the Ontario College of Teachers. On June 20, 2014, the Ontario College of Teachers’ Investigation Committee issued an admonishment to the Member.
On or around October 27, 2014, the Member engaged in inappropriate physical contact with a student when he grabbed and pushed her by her backpack in an effort to move her. That same day, the Member also dismissed the student’s report that she had been the victim of homophobic remarks. On January 7, 2015, the Member received a letter of discipline from the Board and a three-day unpaid suspension. A copy of the Board’s January 7, 2015 letter to the Member, which notes that the Member received counselling on professional boundaries in 2012 and 2013, is attached hereto and marked as Exhibit “E”.
The conduct described in paragraph 13 was reported to the Ontario College of Teachers. On February 19, 2016, a hearing before the Ontario College of Teachers’ Discipline Committee was held, and the Member was found guilty of professional misconduct. The Discipline Committee ordered that the Member receive a reprimand, that he complete coursework on appropriate disciplinary strategies and sensitivity training, and that a summary of the finding and order of the Discipline Committee be published in the College’s official publication, with the Member’s name. A copy of the Discipline Committee’s March 3, 2016 decision is attached hereto and marked as Exhibit “F”.
Member’s Status
- Effective June 30, 2016, the Member resigned from his employment with the Board. On or around April 10, 2017, the Member retired his membership with the Ontario College of Teachers.
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(15), 1(18), and 1(19).
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 the parties 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
Counsel for the College requested that the allegation of professional misconduct outlined in paragraph (b) of the Notice of Hearing, namely that the Member contravened subsection 1(7.1) of Ontario Regulation 437/97, be withdrawn. The Committee granted the request.
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(15), 1(18) and 1(19).
REASONS FOR DECISION
The Member did not contest the facts and exhibits referred to in paragraphs 1 to 15 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(15), 1(18) and 1(19).
Paragraphs 4-14 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 4-8, 10, 11, 13 and 14 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 4-14 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 4-14 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 4-14 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 3), the parties jointly submitted that the appropriate penalty to be imposed in this matter would be that the Committee:
direct that the Member appear before the Committee immediately following the hearing of this matter to receive a reprimand which will be delivered in person at the offices of the Ontario College of Teachers, 101 Bloor St. West, 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 two 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 a teaching position or any position for which a Certificate of Qualification and Registration is required (a “Teaching Position”), the Member shall enrol in and successfully complete at his own expense, a course of instruction pre-approved by the Registrar regarding boundary violations, subject to the following conditions:
(i) the Member will provide to a course provider 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 and Reasons of the Discipline Committee;
(ii) following review of the documents noted at paragraph (i) above, the course provider will provide to the Registrar, for approval, a syllabus for the proposed course which specifically addresses the Discipline Committee’s concerns regarding the Member’s professional misconduct. The syllabus proposed by the course provider shall also specify the length of the course 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 outlined in (a) above, the Member shall provide to the Registrar a written report from the course provider:
(i) stating that the Member has successfully completed the course and reporting on the progress of the Member with respect to addressing the outlined goals of the course.
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: Ontario College of Teachers v. Wierenga, 2012 ONOCT 42; Ontario College of Teachers v. Hyde, 2016 ONOCT 25; and Ontario College of Teachers v. Gerwin, 2017 ONOCT 32.
Reprimand
The Committee finds that the Member’s repeated inappropriate conduct warrants a reprimand by his peers. The Member failed to maintain appropriate professional boundaries with students on several occasions. Among other things, he touched students inappropriately on their backs, shoulders, heads, hands and waist, and he placed his hand under a student’s shirt and rubbed her back. The Member has a history of similar misconduct, which resulted in repeated Board and College discipline. The Committee is concerned that the Member’s inappropriate conduct persisted, despite these clear warnings. The reprimand, which was delivered in person on December 5, 2017, allowed the Committee to directly address its concerns with the Member and serves 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.
Two-month suspension
Given the serious and repeated nature of the Member’s misconduct, the Committee finds that a two-month suspension is reasonable and appropriate. The duration of the suspension is within a reasonable range based on the previous decisions of the Discipline Committee that were presented. The Member has repeatedly failed to maintain appropriate professional boundaries with students. He also has a prior discipline history at the College; on February 19, 2016, he was found guilty of professional misconduct for engaging in similar misconduct. The Committee recognizes that the Member’s prior discipline hearing at the College occurred after the events at issue in this case (and that the Member therefore did not have the benefit of the remedial measures that were ordered in the February 2016 hearing before he engaged in the misconduct that led to his December 2017 discipline hearing). However, the Member received numerous other formal warnings about his inappropriate conduct, regardless of the fact that these interventions did not lead to findings of professional misconduct before the Discipline Committee.
It is a significant aggravating factor that the Member appears to have no understanding of professional boundaries, despite the numerous warnings that he has received. In particular, the Member received a letter of expectation from his Board on May 30, 2011 (see Exhibit 2 at Tab E). He received a letter of discipline from his Board on January 17, 2012 (see Exhibit 2 at Tab C) and subsequently received a caution from the College’s Investigation Committee on November 27, 2012 (see Exhibit 2 at para. 9). He received another letter of discipline from his Board on May 30, 2013 for engaging in similar conduct (see Exhibit 2 at Tab D) and subsequently received an admonishment from the College’s Investigation Committee on June 20, 2014 (see Exhibit 2 at para. 12). On January 7, 2015, the Member received a letter of suspension from his Board because of his inappropriate and unprofessional conduct (see Exhibit 2 at Tab E). Each of these interventions occurred before the Member engaged in the misconduct that gave rise to this discipline hearing.
The Committee recognizes the following mitigating factors in the Member’s case: he is currently retired and no longer teaching, which limits the risk to the public interest; he demonstrated some insight that his conduct was inappropriate by entering into an agreement with the College; and, there was no evidence of sexual misconduct in this case, nor was it alleged that the Member sexually abused students.
Having considered these aggravating and mitigating factors, the Committee accepts that a two-month suspension is reasonable in the circumstances. Although the Member is currently retired, the suspension will serve as a general deterrent to other members of the profession by informing them that there are serious consequences for engaging in misconduct similar to that of the Member.
Coursework
The Committee finds that the course of instruction regarding boundary violations will assist in the rehabilitation of the Member, should he ever return to a Teaching Position. The coursework will remind the Member of his obligations as a teacher and will help him to make better decisions and to maintain appropriate professional boundaries in any future interactions with students.
Publication
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: January 5, 2018
Ravi Vethamany, OCT
Chair, Discipline Panel
______________________________ Merzak Damou, OCT
Member, Discipline Panel
Jane Ishibashi
Member, Discipline Panel