DISCIPLINE COMMITTEE OF THE ONTARIO COLLEGE OF TEACHERS

Citation: Ontario College of Teachers v Uhlman 2018 ONOCT 67

Date: 2018-11-20

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

Patrick Barry Uhlman, a member of the Ontario College of Teachers.

BETWEEN:

ONTARIO COLLEGE OF TEACHERS

– and –

PATRICK BARRY UHLMAN (REGISTRATION #466380)

PANEL: Vicki Shannon, OCT, Chair Colleen Landers Claudia Patenaude-Daniels, OCT

HEARD: July 27, 2018 and November 20, 2018

Christine Wadsworth of McCarthy Tétrault LLP, for Ontario College of Teachers, assisted by Eleanor Enniss, Law Clerk

Adam Webb of Ursel Phillips Fellows Hopkinson LLP, for Patrick Barry Uhlman on July 27, 2018. The Member was self-represented on November 20, 2018.

Erica Richler (July 27, 2018) and Julie Maciura (November 20, 2018) 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 July 27, 2018 at the Ontario College of Teachers (the “College”) at Toronto. A Notice of Hearing dated April 8, 2016 (Exhibit 1) was served on Patrick Barry Uhlman (the “Member”), requesting his presence on April 22, 2016 to set a date for hearing and specifying the allegations. The hearing was subsequently set for July 27, 2018 and continued on November 20, 2018.

The Member did not attend the hearing on July 27, 2018 but had legal representation. On November 20, 2018, the Member attended the hearing by telephone, but he was no longer represented by legal counsel.

At the beginning of the hearing on November 20, 2018, the Member apologized to the Committee for having not attended the first hearing date. He explained that he did not have the resources to travel to Toronto to attend the hearing, that he was embarrassed that he did not make the Committee aware of that at the time, and that he meant no disrespect to the College or the Committee.

The Committee was advised at the outset of the hearing on July 27, 2018 that the parties had entered into an agreement with respect to the hearing.

THE ALLEGATIONS

The allegations against the Member in the Notice of Hearing are as follows:

IT IS ALLEGED that Patrick Barry Uhlman is guilty of professional misconduct as defined in subsection 30(2) of 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 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);

(c) 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

(d) he engaged in conduct unbecoming a member, contrary to Ontario Regulation 437/97, subsection 1(19).

AGREED STATEMENT OF FACTS

College Counsel presented the Committee with the parties’ Agreed Statement of Facts and Guilty Plea (Exhibit 2), which provides the following:

1. Patrick Barry Uhlman is a member of the Ontario College of Teachers (the “College”). Attached hereto as Exhibit 1 is a copy of his Registered Member Information.

2. At all material times, the Member was employed by the Lambton Kent District School Board (the “Board”) as a teacher at [XXX] School (the “School”) in Sarnia, Ontario.

3. At all material times during the 2014-2015 academic year, the Member taught [XXX] at the School.

4. Between September and December 2014, the Member accessed pornography from a school board computer while at school during work time.

5. The Member accessed pornographic sites on most school days. Specifically, in the period between September 26, 2014 and December 3, 2014, Board records showed that the Member accessed pornographic websites on 36 of the 42 working days in that period. On 26 of the days he accessed pornographic websites once per day, on seven of the days he accessed pornographic websites twice per day, and on three of the days he accessed pornographic websites three times per day.

6. The Member accessed three particular pornographic sites. The Member indicated that after the system blocked him out of two of the sites, he continued to access the third, which was not blocked. Attached hereto as Exhibit 2 is a copy of a printout from the school board’s IT system showing the dates and times of access, the sites accessed, search terms used by the Member, as well as the descriptions of the videos that were accessed.

7. On December 17, 2014, the Board terminated the Member’s employment with cause and advised the Member that it would contact the Sarnia Police, the Children’s Aid Society (“CAS”) and the College. Attached hereto as Exhibit 3 is a copy of the Board’s Termination Letter to the Member dated December 17, 2014. The Board later revoked the Member’s termination following a grievance and the Member resigned his employment with the Board.

8. Sarnia Police Service conducted an investigation into the Member’s use of pornography in the classroom. They confirmed that the Member was viewing pornography multiple times per day on a daily basis. They noted that the Member streamed pornography on a school computer in his classroom that could be accessed by students. There is no evidence that students knew the Member was viewing pornography in the classroom, or that any students saw pornographic images.

9. Although some of the accessed sites contained the words “teen”, the police determined that none of the images constituted child pornography for the purposes of the criminal law. No criminal charges were laid against the Member, and there was no further involvement by the CAS.

GUILTY PLEA

10. By this document,¹ the Member admits the truth of the facts and exhibits referred to in paragraphs 1 to 9 above (the “Admitted Facts”).

11. The Member hereby acknowledges that the Admitted Facts constitute conduct which is professional misconduct and pleads guilty to the allegations of professional misconduct against him, being more particularly breaches of Ontario Regulation 437/97 subsections 1(5), 1(15), 1(18) and 1(19).

12. 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 Admitted Facts being presented to the Discipline Committee;

(c) he understands that by pleading guilty 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 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;

(f) he understands and acknowledges that he is executing the Agreed Statement of Facts and Guilty Plea voluntarily, unequivocally, and with the advice of legal counsel.

13. In light of the Admitted Facts and circumstances and the plea of guilt, the Ontario College of Teachers and the Member submit that the Discipline Committee find the Member guilty of professional misconduct.

DECISION

Having considered the Agreed Statement of Facts and Guilty Plea and the submissions of the parties, the Committee rendered an oral decision on July 27, 2018 finding the Member guilty of professional misconduct. In particular, the Committee found that the Member committed acts of professional misconduct as alleged, contrary to Ontario Regulation 437/97, subsections 1(5), 1(15), 1(18) and 1(19).

REASONS FOR DECISION

The Member admitted the truth of the facts and exhibits referred to in paragraphs 1 to 9 of the Agreed Statement of Facts and Guilty Plea and pleaded guilty to the allegations of professional misconduct against him. He acknowledged and the Committee accepts that the Admitted Facts constitute conduct which is professional misconduct, contrary to Ontario Regulation 437/97, subsections 1(5), 1(15), 1(18) and 1(19).

Paragraphs 4, 5, 6 and 8 of the Agreed Statement of Facts and Guilty Plea demonstrate that the Member failed to maintain the standards of the profession, contrary to Ontario Regulation 437/97, subsection 1(5).

Paragraphs 4, 5, 6 and 8 of the Agreed Statement of Facts and Guilty Plea 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, 5, 6 and 8 of the Agreed Statement of Facts and Guilty Plea 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, 5, 6 and 8 of the Agreed Statement of Facts and Guilty Plea demonstrate that the Member engaged in conduct unbecoming a member, contrary to Ontario Regulation 437/97, subsection 1(19).

JOINT SUBMISSION ON PENALTY

On July 27, 2018, the parties presented the Committee with a Joint Submission on Penalty (Exhibit 4), in which they jointly submitted that the appropriate penalty to be imposed in this matter would be that the Committee:

1. direct the Registrar of the Ontario College of Teachers to suspend the Certificate of Qualification and Registration of the Member for a period of 10 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;

2. direct the Member to 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”).

Because the Member was not in attendance during the hearing on July 27, 2018, the parties agreed that the Committee should order that the Member appear before the Committee within 60 days of the date of the Order to receive his reprimand, instead of ordering him to appear “immediately following the hearing of this matter”, as is set out at paragraph 2 above. However, the parties’ agreement to amend the timing of the reprimand became moot when the hearing reconvened on November 20, 2018 because the Member was in attendance by telephone and the parties agreed that it would be appropriate for him to receive his oral reprimand by telephone immediately following the hearing.

During the hearing on July 27, 2018, the Committee informed the parties that it had concerns with respect to the lack of any rehabilitative component in the penalty sought. In light of the fact that the Joint Submission on Penalty proposed to suspend the Member’s certificate of qualification and registration and not to revoke it, the possibility remained that the Member could return to teaching. As such, in consideration of the protection of the public interest, the Committee questioned the absence of a penalty component that directly addressed the rehabilitation of the Member, specifically with respect to his understanding of the Standards of Practice for the Teaching Profession. The Committee therefore invited the parties to make further submissions regarding the rehabilitative component of the penalty sought.

The hearing was adjourned on July 27, 2018 to give the parties the opportunity to address this issue, and to return before the Committee at a later date to make additional submissions with respect to penalty. The Committee neither accepted nor rejected the Joint Submission on Penalty as it was presented to them.

ADDITIONAL SUBMISSIONS ON PENALTY

On November 20, 2018, the hearing was reconvened in order for the parties to make additional penalty submissions regarding the lack of a rehabilitative component to the jointly proposed penalty.

College Counsel submitted that there was a very high threshold that must be met in order for the Committee to reject a jointly proposed penalty. It is inappropriate to reject a joint submission unless accepting it would bring the administration of the discipline process into disrepute or be otherwise contrary to the public interest. College Counsel submitted that this threshold has not been met in this case, and that the proposed penalty should therefore be accepted.

Moreover, College Counsel submitted that the Member has resigned his certificate of qualification and registration as of October 12, 2018 (see Exhibit 5), and that this was a significant development following the first hearing date on July 27, 2018. The Member’s public register profile has also been updated, as of November 19, 2018, to reflect the fact that his status is now “Cancelled-Resigned” (see Exhibit 6). College Counsel submitted that the Member’s resignation is important because it demonstrates that he has no intention of returning to a teaching position. His resignation was also voluntary; he was not required to resign.

According to College Counsel, given that the Member has resigned, there was no need for him to complete a rehabilitative course. College Counsel noted that the reprimand portion of the penalty would serve a sufficient rehabilitative function, because it would allow the Committee to directly address the Member, who would benefit from the insight and advice of the experienced Committee.

College Counsel reiterated that the case law presented to the Committee relating to members who had accessed pornography at school did not include coursework as part of the penalties ordered. In addition to two cases presented on the first hearing date (July 27, 2018), College Counsel presented Ontario College of Teachers v. Vandermeer, 2014 ONOCT 108 on November 20, 2018, in which a member who had accessed pornography on a school computer was not required to complete rehabilitative coursework as part of his penalty ordered by a panel of the Discipline Committee.

Although the Member attended the hearing on November 20, 2018 by telephone, he made no additional submissions regarding the appropriateness of the jointly proposed penalty.

PENALTY DECISION

In an oral decision rendered on November 20, 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.

With respect to the timing of the reprimand, the Committee was able to deliver the Member’s reprimand orally (by telephone) immediately following the hearing on November 20, 2018.

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. Orman, 2009 ONOCT 41; Ontario College of Teachers v. Welch, 2012 ONOCT 41; and Ontario College of Teachers v. Vandermeer, 2014 ONOCT 108.

The Committee continued to have concerns regarding the lack of coursework as a rehabilitative component in the original joint submission on penalty, but accepted that the Member had tendered his resignation, with no intention to return to the profession. For this reason, the Committee accepted the Joint Submission on Penalty.

On November 20, 2018, the Committee was informed that the Member filed a Notice of Resignation dated October 12, 2018 (Exhibit 5). College Counsel stated that the Member “freely and voluntarily resigned with no intention to return to the teaching profession.” This confirms that the Member has no intention of returning to the teaching profession, which will ensure that the public interest is adequately protected. If the Member decides that he wants to return to the profession, he will need to successfully re-apply to the College and meet all of the certification requirements in place at that time.

Suspension

The Committee finds that suspending the Certificate of Qualification and Registration of the Member for a period of 10 months is proportionate to the misconduct committed by the Member. It is completely unacceptable for members of the profession to access pornography at school, using a Board computer that could be accessed by students. The Member did so repeatedly during the Fall of 2014.

It is alarming that the Member accessed “teen” pornography at school. Although the police determined that this content did not constitute child pornography, it is nevertheless disturbing that a Member would be attempting to access pornography featuring “teens” which is in fact the age group with whom the Member interacted on a daily basis as a teacher. That these searches were conducted during school hours, at school, on a school computer demonstrated that the Member did not recognize the inappropriateness of these boundary violations.

Members of the profession occupy a unique position of trust and authority. By accessing “teen” pornography at school, the Member undermined the trust of both students and the public in the teaching profession. As a teacher at a secondary school, the Member was responsible for the well-being of adolescent students. Accessing “teen” pornography at school was clearly at odds with the Member’s professional responsibilities. Teen pornography objectifies and exploits adolescents. It reflects very poorly on the profession when its members access such content while they are entrusted with the care and development of students.

The duration of the suspension also falls within a range of acceptable outcomes, as established by the above-mentioned cases presented by College Counsel. The significant suspension will serve as a specific deterrent to the Member and should cause him to reflect on the inappropriate and unprofessional nature of his misconduct. Recording the fact of the suspension on the Register will serve as a general deterrent to other members of the profession.

Reprimand

The Committee further finds that the Member’s unprofessional conduct, warrants a reprimand by his peers. The reprimand will allow the Committee to directly address its concerns with the Member and will serve as a specific deterrent. By reminding the Member of his professional obligations, the reprimand also serves a rehabilitative function. Recording the fact of the reprimand on the Register will serve as a general deterrent to other members of the 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 20, 2018

Vicki Shannon, OCT

Chair, Discipline Panel

Colleen Landers

Member, Discipline Panel

Claudia Patenaude-Daniels, OCT

Member, Discipline Panel

Footnotes

1. 1For the purposes of paragraphs 10 and 12, this “document” refers to the parties’ Agreed Statement of Facts and Guilty Plea dated July 19, 2018.