Ontario College of Teachers v. Markham, 2019 ONOCT 113

DISCIPLINE COMMITTEE OF THE ONTARIO COLLEGE OF TEACHERS

Ontario College of Teachers v Markham 2019 ONOCT 113

Date: 2019-11-11

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

Alan Philip Markham, a member of the Ontario College of Teachers.

BETWEEN:

ONTARIO COLLEGE OF TEACHERS

– and –

ALAN PHILIP MARKHAM (REGISTRATION #422136)

PANEL: Tom Potter, Chair Diane Ballantyne, OCT Sara Nouini, OCT

HEARD: November 8, 2019

Eli Mogil and Steven Chadwick, for the Ontario College of Teachers No one appearing for Alan Philip Markham Rebecca Durcan, 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.

1This matter was heard before a panel of the Discipline Committee (the “Panel”) on November 8, 2019 at the Ontario College of Teachers (the “College”).

2Alan Philip Markham (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.

B. THE ALLEGATIONS

4The allegations against the Member in the Notice of Hearing dated June 13, 2019 (Exhibit 1) are as follows:

IT IS ALLEGED that Alan Philip Markham is guilty of professional misconduct as defined in 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 abused a student 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;

(d) he engaged in sexual misconduct as defined in section 1 of the Act;¹

(e) he failed to comply with the Act or the regulations or the by-laws, contrary to Ontario Regulation 437/97, subsection 1(14);

(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);

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

C. AGREED STATEMENT OF FACTS

5College Counsel presented the Panel with the parties’ Agreed Statement of Facts and Guilty Plea (Exhibit 2), which provides the following:

1. Alan Philip Markham 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.

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

3. At all material times, Student 1 was a [XXX]-year old female student at the School.

4. In or around September or October 2017, the Member engaged in inappropriate electronic communications with Student 1 on Tinder.

5. Tinder is a dating application. Examples of the inappropriate electronic communications include:

(a) Student 1: “That’s to be expected of a man who’s married. That’s what gets me off – being the object of desire of someone off limits.”

(b) Member: “How do you feel knowing that while you plaued [sic] the [XXX]the last two years I let my eues [sic] travel over your body. I traced the curve of your neck and shoulders. I let my eyes wander down your straight back. I followed the curve of your hips.”

6. A screenshot of the communications between the Member and Student 1 referenced in paragraphs 5(a) and (b) is attached as Exhibit “B”.

7. Attached hereto and marked as Exhibit “C” is a copy of the ethical standards and standards of practice for the teaching profession.

8. On September 27, 2002, the Ontario College of Teachers approved a professional advisory related to sexual abuse and sexual misconduct. Attached hereto and marked as Exhibit “D” is a copy of the College advisory.

9. On September 27, 2017, the Ontario College of Teachers approved a professional advisory on the use of electronic communications and social media. Attached hereto and marked as Exhibit “E” is a copy of the College advisory.

Resignation

10. On or about December 27, 2017, the Member resigned from his employment with the Board, effective January 8, 2018. Attached hereto and marked as Exhibit “F” is the Member’s communication to the Board.

GUILTY PLEA

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

12. 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(7.2), 1(7.3), 1(14), 1(15), 1(18), and 1(19). The Member further admits that the Admitted Facts constitute sexual abuse as defined in Section 1 of the Act.

13. 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 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 having had the opportunity to obtain the advice of legal counsel.

14. In light of the Admitted Facts and the 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

6Counsel for the College requested that the allegation of professional misconduct outlined in paragraph (d) of the Notice of Hearing, namely that the Member engaged in sexual misconduct as defined in section 1 of the Act, be withdrawn. The Panel granted the request.

7Having considered the Agreed Statement of Facts and Guilty Plea and the submissions of College Counsel, the Panel rendered an oral decision on November 8, 2019, 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(7.3), 1(14), 1(15), 1(18) and 1(19). The Member also engaged in sexual abuse of a student of a nature defined in section 1 of the Act.

E. REASONS FOR DECISION

8The Member admitted the truth of the facts and exhibits referred to in paragraphs 1 to 10 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 the Member engaged in inappropriate electronic communications with Student 1, a [XXX]-year-old female student at his school, on the Tinder dating application. The Member’s communications with Student 1 constitute sexual abuse as they were “remarks of a sexual nature by the member towards the student” in accordance with the definition of “sexual abuse” in section 1 of the Act. Engaging in the sexual abuse of a student is a clear breach of the standards of the profession. The Member abused his position of trust by engaging in sexualized communications with a student. The Member’s communications with Student 1 also constitute psychological or emotional abuse. He contravened section 264(1) of the Education Act by failing to act as an appropriate role model. His behaviour was disgraceful, dishonourable, unprofessional and unbecoming a member of the teaching profession.

F. PENALTY DECISION

9The parties agreed to a Joint Submission on Penalty (Exhibit 3), which was presented to the Panel. In an oral decision rendered on November 8, 2019, the Panel accepted the Joint Submission on Penalty and made the following order:

1. The Member is directed to appear before the Discipline Committee within six months of the Discipline Committee’s order, to receive a reprimand which will be delivered 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;

2. The Registrar of the Ontario College of Teachers is directed to immediately revoke the Certificate of Qualification and Registration of the Member.

G. REASONS FOR PENALTY DECISION

10The Member’s professional misconduct consisted of the sexual abuse of a student, as described in subsection 30.2(2) of the Act. Given this finding, section 30.2(1) of the Act provides that the Panel must make an order: (1) requiring that the Member be reprimanded by the Panel; and (2) directing the Registrar to revoke the Member’s certificate of qualification and registration. The Panel makes both of these orders. The Panel notes that it has no discretion in this regard. The Panel denounces the Member’s misconduct in the strongest terms.

Footnotes

1. 1Allegation withdrawn, at the request of College Counsel.