Ontario College of Teachers v. Palmer, 2019 ONOCT 112

DISCIPLINE COMMITTEE OF THE ONTARIO COLLEGE OF TEACHERS

Ontario College of Teachers v Palmer, 2019 ONOCT 112

Date: 2019-10-31

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 Matthew Dale Palmer, a member of the Ontario College of Teachers.

BETWEEN:

ONTARIO COLLEGE OF TEACHERS

– and –

MATTHEW DALE PALMER (REGISTRATION #500529)

PANEL: Mary Ellen Gucciardi, OCT, Chair Shanlee Linton, OCT Jonathan Rose

HEARD: October 23, 2019

Jean-François Schaan, for the Ontario College of Teachers No one appearing for Matthew Dale Palmer Julie Maciura, 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.

By order of Justice C. Corkery of the Superior Court of Justice, there is also a publication ban on any information that could identify the victim or a witness in this matter, pursuant to subsection 486.4 of the Criminal Code.

1This matter was heard before a panel of the Discipline Committee (the “Panel”) on October 23, 2019 at the Ontario College of Teachers (the “College”).

2Matthew Dale Palmer (the “Member”) did not attend the hearing and did not have legal representation. The Panel was advised at the outset of the hearing that the parties had entered into an agreement with respect to the hearing.

A. PUBLICATION ban

3The Panel ordered a publication ban pursuant to subsection 32.1(3) of the Ontario College of Teachers Act, 1996 (the “Act”), which makes such an order mandatory. Accordingly, 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.

4Additionally, the Panel received a certified copy of the proceedings at trial before Justice C. Corkery dated October 21, 2016 (Exhibit 2 at Tab C). In these proceedings before the Superior Court of Justice, an order restricting publication was made pursuant to section 486.4 of the Criminal Code of Canada. The Panel is required to uphold this publication ban. 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.

B. THE ALLEGATIONS

5The allegations against the Member in the Notice of Hearing dated July 29, 2019 (Exhibit 1) are as follows:

IT IS ALLEGED that Matthew Dale Palmer is guilty of professional misconduct as defined in 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 contravened a law, the contravention of which has caused or may cause a student who is under the member’s professional supervision to be put at or to remain at risk, contrary to Ontario Regulation 437/97, subsection 1(17);

(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);

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

C. AGREED STATEMENT OF FACTS

6College Counsel presented the Panel with the parties’ Agreed Statement of Facts and Guilty Plea (Exhibit 2), which provides the following:

1. Matthew Dale Palmer is a member of the Ontario College of Teachers. Attached hereto and marked as Appendix “A” is a copy of the Ontario College of Teachers Registered Member Information with respect to the Member.

2. From September 1, 2007 to October 24, 2016, the Member was employed by the Bluewater District School Board (the “Board”) as an [XXX] teacher.

3. In or about June 2014, Person A contacted the police, indicating that [XXX] to [XXX] years prior, she and the Member had engaged in a sexual relationship. Person A was a minor at the time, and had met the Member through his position as a [XXX] at a local church.

4. On or about September 24, 2014, the Member was arrested and charged with:

(a) between September 1, 1996 and July 4, 1999, in the Town of Cobourg in the said region and elsewhere in the province of Ontario, being in a position of trust or authority towards Person A, a young person, did for a sexual purpose touch directly the body of Person A, a young person, with a part of his body, to wit: his hand, lips and body contrary to section 153(1)(a) of the Criminal Code (Canada); and

(b) between September 1, 1996 and July 4, 1999, in the Town of Cobourg and elsewhere in the Province of Ontario, being in a position of trust or authority towards Person A, a young person, did for a sexual purpose invite Person A, a young person, to touch directly with a part of her body to wit: lips, hands, genitals, the body of the Member, contrary to section 153(1)(b) of the Criminal Code (Canada).

5. On October 11, 2016, the Member pleaded not guilty to both counts of sexual exploitation. The matter proceeded to trial.

6. On or about October 20, 2016, on consent, the presiding judge entered an acquittal on the charge of sexual exploitation under section 153(1)(b) of the Criminal Code (Canada).

7. On or about October 21, 2016, a jury found the Member guilty of sexual exploitation, contrary to section 153(1)(a) of the Criminal Code (Canada).

8. On October 24, 2016, the Board terminated the Member’s employment.

9. On or about February 22, 2017, the Member was sentenced to six months’ custody and 18 months’ probation. The Member was also made the subject of a number of ancillary orders.

10. Attached hereto and marked as Appendix “B” are certified true copies of the indictments, endorsements and court documents pertaining to these charges.

11. Attached hereto and marked as Appendix “C” is a certified copy of the proceedings at trial before the Honourable Justice C. Corkery and jury, dated October 21, 2016.

12. Attached hereto and marked as Appendix “D” is a certified copy of the proceedings at trial before the Honourable Justice C. Corkery, dated January 27, 2017.

13. Attached hereto and marked as Appendix “E” is a certified copy reasons for sentence before the Honourable Justice C. Corkery, dated February 22, 2017.

14. Attached hereto and marked as Appendix “F” is a certified copy of the Member’s Probation Order, dated February 22, 2017.

15. The Member appealed his conviction to the Court of Appeal for Ontario. On July 3, 2018, the Court of Appeal for Ontario dismissed the Member’s appeal. Attached hereto and marked as Appendix “G” is a copy of the affidavit of Tatiana Tkatch, College Paralegal, where she details a phone call with the Court of Appeal for Ontario on September 4, 2019, where she confirmed the dismissal of the Member’s appeal.

16. On or about March 16, 2017, the Member retired from the College.

GUILTY PLEA

17. By this document, the Member admits the truth of the facts and appendices referred to in paragraphs 1-16 above (the “Admitted Facts”).

18. 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(16), 1(17), 1(18) and 1(19).

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 documents 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 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 him and counsel for the College with respect to the penalty proposed in this document does not bind the Discipline Committee;

(f) he understands and acknowledges that he is executing this agreement voluntarily, unequivocally, and without the advice of legal counsel.

20. 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.

D. DECISION

7Having considered the Agreed Statement of Facts and Guilty Plea and the submissions of College Counsel, the Panel rendered an oral decision October 23, 2019 finding that the Member engaged in acts of professional misconduct as alleged, contrary to Ontario Regulation 437/97, subsections 1(16), 1(17), 1(18) and 1(19).

E. REASONS FOR DECISION

8The Member admitted the truth of the facts and exhibits referred to in paragraphs 1 to 16 of the Agreed Statement of Facts and Guilty Plea and admitted the allegations of professional misconduct against him. He acknowledged and the Panel accepts that the Admitted Facts constitute professional misconduct under the headings of misconduct set out above. The Admitted Facts demonstrate that, while he was a [XXX] at a local church, the Member engaged in a sexual relationship with Person A, who was a minor at the time. On or about October 21, 2016, the Member was found guilty of sexual exploitation, contrary to section 153 (1)(a) of the Criminal Code (Canada). He was sentenced to six months’ custody and 18 months’ probation. He was also made the subject of a number of ancillary orders. The Member appealed his conviction and on July 3, 2018, the Court of Appeal for Ontario dismissed the Member’s appeal.

9The Member’s sexual exploitation conviction demonstrates that the Member contravened a law relevant to the Member’s suitability to hold a certificate of qualification and registration, and which has caused or may cause a student who is under the Member’s professional supervision to be put at or to remain at risk. Furthermore, the Member’s misconduct is clearly disgraceful, dishonourable, unprofessional and is conduct unbecoming a member. The public’s trust in the teaching profession is eroded when members are convicted of sexual offences.

F. PENALTY DECISION

10The parties agreed to a Joint Submission on Penalty (Exhibit 3), which was presented to the Panel. In an oral decision rendered on October 23, 2019, the Panel accepted the Joint Submission on Penalty and made the following order:

1. The Member is directed to receive a reprimand, in writing, and that the fact of the reprimand is to be recorded on the Register of the Ontario College of Teachers (the “Register”); and

2. 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.

G. REASONS FOR PENALTY DECISION

11The Panel accepts the penalty jointly proposed by the parties. The Panel recognizes that, once it ensures that it has jurisdiction to make the order requested, the law confines the Panel’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 Panel finds that the penalty proposed in the Joint Submission on Penalty falls within a range of acceptable outcomes, based on the decision of the Discipline Committee presented by College Counsel: Ontario College of Teachers v. Brown, 2007 ONOCT 8.

12The Panel considered the Member’s circumstances in comparison to the case provided. The aggravating factors in the Member’s case are the serious nature of the offence, the fact that he abused his position of trust as a [XXX]at a local church and the fact that it led to significant emotional harm for Person A. In terms of mitigating factors, the Member admitted his misconduct and he was cooperative with the College, which saved the time and expense of a contested hearing. After weighing these factors, the Panel accepts that the penalty proposed by the parties is reasonable.

13The Panel finds that the Member’s egregious conduct warrants a reprimand by his peers. The Member’s criminal conviction for sexual exploitation is extremely concerning for a member of the teaching profession. Teachers are entrusted with the care and well-being of children. The reprimand will allow the Panel 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.

14The Panel finds that revocation of the Member’s Certificate of Qualification and Registration is appropriate in this case. The Member was convicted of a serious criminal offence. His sexual exploitation of Person A, while he was in a position of trust as a [XXX] at a local church, raises substantial concerns regarding the Member’s professional judgment. Teachers must ensure the physical and emotional safety of children. The Member’s 2016 criminal conviction for a sexual offence has significantly undermined the public’s trust in the teaching profession. Accordingly, the Member forfeits his right to be a member of the teaching profession in Ontario.

15The Panel is satisfied that the penalty is appropriate in the circumstances and meets the principle of serving and protecting the public interest.