Discipline Committee of the Ontario College of Teachers
DECISION, REASONS FOR DECISION AND ORDER
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
Anthony Mario Aquino, OCT, a member of the Ontario College of Teachers.
BETWEEN:
ONTARIO COLLEGE OF TEACHERS
– and –
ANTHONY MARIO AQUINO (REGISTRATION #427770)
PANEL: Nicola Powadiuk, OCT, Chair Jean-Luc Bernard, OCT Bill Petrie
HEARD: October 1, 2018
Ava Arbuck of McCarthy Tétrault LLP, for Ontario College of Teachers, assisted by Amy Leung, Law Clerk
Jerry Raso of the Ontario English Catholic Teachers’ Association, for Anthony Mario Aquino
Robin McKechney of Steinecke Maciura LeBlanc, Independent Legal Counsel
PUBLICATION BAN: Pursuant to subsection 32.1(3) of the Ontario College of Teachers Act, 1996, no person shall publish the identity of, or any information that could disclose the identity of, any person who is under 18 years old and is a witness in a hearing or is the subject of evidence in a hearing.
This matter came on for hearing before a panel of the Discipline Committee (the “Committee”) on October 1, 2018 at the Ontario College of Teachers (the “College”) at Toronto.
A Notice of Hearing dated August 31, 2017 (Exhibit 1) was served on Anthony Mario Aquino (the “Member”), requesting his presence on October 3, 2017 to set a date for hearing and specifying the allegations. The hearing was subsequently set for October 1, 2018.
The Member was in attendance for the hearing and had legal representation. The Committee was advised at the outset of the hearing that the parties had entered into an agreement with respect to the hearing.
THE ALLEGATIONS
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 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 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).
STATEMENT OF UNCONTESTED FACTS
College Counsel presented the Committee with the parties’ Statement of Uncontested Facts and Plea of No Contest (Exhibit 2), which provides as follows:
Anthony Mario Aquino 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 Hamilton-Wentworth Catholic District School Board (the “Board”) as a[XXX] teacher at [XXX] School (the “School”) in Hamilton, Ontario.
Every year, the Member’s School hosted and presented [XXX] for feeder schools. During the 2015-2016 school year, the [XXX] took place on December 7 and 8, 2015. The Member’s [XXX] students performed in the first half of the[XXX]. The[XXX] [XXX]team [XXX] in the second half of the[XXX].
The female students on the [XXX] [XXX] team were permitted to use a room behind and to one side of the[XXX], between the back of the [XXX] and the hallway, to change into their costumes. There was a door from this room into the hallway on the other side. This space was designated as their changing area for their [XXX] because there was no other change room available for them. The same space had been used by the female [XXX] [XXX] students as a change area in each of the last four years, for the feeder school and other school [XXX].
The Member’s [XXX] room was right beside this room, and on regular school days the Member often crossed through it as a shortcut from the [XXX] to his [XXX] room.
On December 7, 2015, during the second half of the [XXX] the Member opened the door and walked into the designated changing area on at least two occasions while the female [XXX] students were changing into their [XXX] for their [XXX]. The Member stared briefly at some students who, because they were in the middle of a “quick change”, were half-dressed and in their undergarments. They were shocked and upset that the Member entered and stared while they were changing, and surprised that he didn’t cover his eyes or apologize to them before he left.
The students found the Member’s actions creepy and reported their discomfort to their teacher supervisor after their [XXX] that afternoon.
The next morning, on December 8, 2015, the teacher supervisor reported the students’ concerns to the Department Head. The Department Head approached the Member and his students prior to their [XXX] [XXX] in the first half of the [XXX], and advised them not to enter the designated area to get to and from the hallway and the [XXX], because the female [XXX] students were using it as their changing area.
Later that afternoon, during the second half of the [XXX] while the female [XXX] students were in the designated area changing into their costumes for their [XXX], the Member walked in. The teacher supervisor was present on this occasion and said to the Member words to the effect of, “we are done here, right sir? You don’t need to be here right now!”, while several of the female students in various [XXX]s of undress scrambled to get out of the Member’s view. The Member proceeded to walk through the area to the [XXX] to watch the [XXX] on [XXX], where he stood for approximately two or three minutes, then left. The students were very uncomfortable that he had entered their changing area.
Board Investigation
The Member was assigned to home duties with pay on December 18, 2015, pending the outcome of the Board’s investigation.
At the completion of its investigation, the Board concluded that the Member was “fully aware the area was being used for the purposes of a student changing area for the [XXX] and [he] knowingly entered such area.” The Board suspended the Member’s employment for 20 days without pay, and transferred the Member to a new school for the 2016-2017 school year. Attached hereto and marked as Exhibit “B” is a copy of the Board’s Discipline Letter to the Member dated May 25, 2016, and the Board’s letter advising the Member of his 2016-2017 school year assignment at an adult and continuing education centre, dated July 15, 2016.
Prior Decision by the Discipline Committee
- The Member appeared before the Discipline Committee on February 14, 2007, and pleaded guilty to committing professional misconduct by engaging in a personal relationship with a female student from Spring 2003 to November 2004. The Discipline Committee ordered a reprimand and publication with the Member’s name, recognizing that the Member’s Board had already required the Member to undergo assessments by a psychologist and psychiatrist, to provide written confirmation of his successful completion of a professional course reviewing the appropriate conduct that teachers must adhere to, and to provide written confirmation of his participation in counselling regarding acceptable behaviours and appropriate boundaries of the student/teacher relationship. Attached hereto and marked as Exhibit “C” is a copy of the Discipline Committee’s Decision, Reasons for Decision, and Order dated February 14, 2007.
PLEA OF NO CONTEST
By this document,1 the Member pleads no contest, for the purposes of this proceeding only, to 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 Committee can accept the Uncontested Facts as correct, and can accept that those facts constitute professional misconduct;
(e) 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;
(f) he understands that any agreement between him and counsel for the College with respect to the penalty proposed does not bind the Discipline Committee;
(g) 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, 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 rendered an oral decision on October 1, 2018 finding that the Member engaged in 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 12 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 6, 9 and 11 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 6, 7 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 6, 9 and 11 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 6, 9 and 11 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 6, 9 and 11 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 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 three 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 returning to teaching or to any position for which a Certificate of Qualification and Registration is required (collectively referred to herein as 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 understanding and maintaining appropriate professional boundaries with students, subject to the following conditions:
(i) the Member will provide to a course practitioner 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;
(ii) upon review of the documents noted at paragraph (i) above, the course practitioner 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 practitioner 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 practitioner:
(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;
(c) the Member shall meet with a social worker, counsellor or other specialist (collectively referred to herein as “Specialist”), pre-approved by the Registrar, at the Member’s own expense, for a minimum of four individualized instruction sessions relating to the Member’s understanding of the importance of adhering to professional boundaries with students at all times, with at least two sessions to occur prior to the Member returning to a Teaching Position, and the remainder to be completed within 12 months of the Member’s return to a Teaching Position, subject to the following conditions:
(i) at the first session, the Member will provide to the Specialist 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;
(ii) upon review of the documents noted at paragraph (i) above, the Specialist will provide to the Registrar, in writing, the intended goals of the sessions, including addressing the Discipline Committee’s concerns regarding the Member’s professional misconduct;
(d) within 30 days of his completion of the four sessions outlined in (c) above, the Member shall provide to the Registrar a written report from the Specialist:
(i) confirming that the Member has successfully attended four sessions including the dates of attendance, and reporting on the progress of the Member with respect to addressing the goals of the individualized instruction sessions.
PENALTY DECISION
In an oral decision rendered on October 1, 2018, the Committee accepted the Joint Submission on Penalty presented by the parties and made 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. Orton, 2017 ONOCT 100, Ontario College of Teachers v. Derr, 2017 ONOCT 52 and Ontario College of Teachers v. Khamis, 2017 ONOCT 21.
The Committee finds that the Member’s inappropriate conduct warrants a reprimand by his peers. The Member failed to maintain appropriate professional boundaries with students on two occasions, which made students feel uncomfortable. The Committee is concerned that the Member did not recognize that it was inappropriate for him to enter a changing room designated for female students, and it is even more concerned that the Member stared at students while they were changing. Worse still, the Member entered the female students’ changing area a second time, hours after his Department Head had specifically advised him not to do so. Members of the teaching profession are expected to promote and participate in the creation of safe and supportive learning communities. By violating the privacy of female students, the Member failed to do so. The Committee further finds that it is an aggravating factor that the Member was previously found to have engaged in professional misconduct as a result of boundary violation issues that were heard by the Discipline Committee in 2007. 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.
The Committee finds that a three-month suspension is reasonable and appropriate in the circumstances. The duration of the suspension is within a reasonable range, as established by the similar case law presented by College Counsel. The suspension in this case will serve as a specific deterrent to the Member by reinforcing for him the importance of maintaining appropriate professional boundaries with students at all times, and the consequences for the failure to do so. The imposition of a suspension also reflects the fact that the Member has a prior discipline history with the College. Recording the fact of the suspension on the Register will serve as a general deterrent to other members of the profession.
The Committee finds that the course of instruction regarding understanding and maintaining appropriate professional boundaries with students, and the individualized instruction sessions with a Specialist relating to the Member’s understanding of the importance of adhering to professional boundaries with students at all times, will assist in the rehabilitation of the Member. The coursework and meetings with a social worker, counsellor or other specialist are intended to remind the Member of his obligations as a teacher and to help him to make better decisions in any future interactions with students.
The Committee is satisfied that the penalty is appropriate in the circumstances and meets the principle of serving and protecting the public interest.
Date: October 1, 2018
Nicola Powadiuk, OCT Chair, Discipline Panel
Jean-Luc Bernard, OCT Member, Discipline Panel
Bill Petrie Member, Discipline Panel