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
David Edward Cotterell, a member of the Ontario College of Teachers.
BETWEEN:
ONTARIO COLLEGE OF TEACHERS
– and –
DAVID EDWARD COTTERELL (REGISTRATION #287671)
PANEL: Jean-Luc Bernard, OCT, Chair Godwin Ifedi Sara Nouini, OCT
HEARD: February 27, 2019
Ava Arbuck of McCarthy Tétrault LLP, for Ontario College of Teachers, assisted by Eleanor Enniss, Law Clerk
H. Alan L. Emerson for David Edward Cotterell
Erica Richler of Steinecke Maciura LeBlanc, Independent Legal Counsel
PUBLICATION BAN: Pursuant to subsections 32.1(3) and 32.1(4) 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, or of a person who was allegedly sexually abused or the subject of sexual misconduct or a prohibited act involving child pornography.
This matter came on for hearing before a panel of the Discipline Committee (the “Committee”) on February 27, 2019 at the Ontario College of Teachers (the “College”) at Toronto.
A Notice of Hearing dated November 30, 2018 (Exhibit 1) was served on David Edward Cotterell (the “Member”) inviting him to participate in the scheduling of the hearing and specifying the allegations. The hearing was subsequently set for February 27, 2019.
Neither the Member nor his representative, H. Alan L. Emerson, attended the hearing. However, College Counsel advised the Committee at the outset of the hearing that the parties had entered into an agreement with respect to the hearing. Moreover, College Counsel presented the Committee with a letter dated February 27, 2019 from the Member’s representative to College Counsel indicating that both he and the Member had intended to attend the hearing but were unable to do so because of inclement weather and road closures (see Exhibit 2).
THE ALLEGATIONS
The allegations against the Member in the Notice of Hearing are as follows:
IT IS ALLEGED that David Edward Cotterell is guilty of professional misconduct as defined in the Ontario College of Teachers Act, 1996 (the “Act”) in that:
(a) he failed to strive at all times to achieve and maintain the highest degree of professional competence and to uphold the honour, dignity and ethical standards of the teaching profession, contrary to section 13 of the Regulation made under the Teaching Profession Act made pursuant to section 12 of the Teaching Profession Act, (the “TPA Regulation”);
(b) he failed to show consistent justice and consideration in all his relations with pupils contrary to subsection 14(d) of the TPA Regulation;
(c) he failed to concern himself with the welfare of his pupils while they were under his care, contrary to subsection 14(f) of the TPA Regulation;
(d) he failed to comply with subsection 22(1)(c) of the Schools Administration Act, R.S.O. 1960, c. 361 and amendments thereto;1
(e) he failed to comply with subsection 21(1)(c) of the Schools Administration Act, R.S.O. 1970, c. 424 and amendments thereto;
(f) he failed to comply with subsection 229(1)(c) of the Education Act, S.O. 1974, c. 109 and amendments thereto;
(g) he failed to maintain the standards of the profession, contrary to Ontario Regulation 437/97, subsection 1(5);2
(h) he failed to comply with the Act or the regulations or the by-laws, contrary to Ontario Regulation 437/97, subsection 1(14);3
(i) 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);
(j) he contravened a law, the contravention of which may cause a student to be put at or to remain at risk, contrary to Ontario Regulation 437/97, subsection 1(17);
(k) 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
(l) 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 3), which provides the following:
David Edward Cotterell 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 held an Ontario Teacher’s Certificate and was employed by the former Peel Board of Education as a teacher at [XXX] School (the “School”) in Mississauga, Ontario.
At all material times during the 1971–1972 academic year, Student 1 was a Grade [XXX] student in the Member’s class at the School. At all material times during the 1973–1975 academic years, Student 2 was in Grades [XXX] and [XXX] and in the Member’s class at the School.
During the 1971-1972 school year, the Member engaged in sexual touching of Student 1.
Between September 1973 and September 1975, the Member engaged in sexual touching of Student 2.
On December 17, 2015, in the Ontario Court of Justice, the Member was found guilty of two counts of indecent assault, contrary to Section 156 of the Criminal Code of Canada. Attached hereto and marked as Exhibit “B” are copies of the court informations. Attached hereto and marked as Exhibit “C” is a copy of the transcript of Proceedings dated December 17, 2015. The facts giving rise to the Member’s guilty plea are set out in the transcript.
On January 7, 2016 the Member was sentenced to a 12-month conditional sentence. Attached hereto and marked as Exhibit “D” is a copy of the Reasons for Sentence dated January 7, 2016.
GUILTY PLEA
By this document,4 the Member admits the truth of the facts and exhibits referred to in the paragraphs above (the “Admitted Facts”).
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 section 13 of the Regulation made under the Teaching Profession Act made pursuant to section 12 of the Teaching Profession Act (the “TPA Regulation”); subsection 14(d) of the TPA Regulation; subsection 14(f) of the TPA Regulation; subsection 21(1)(c) of the Schools Administration Act, R.S.O. 1970, c. 424 and amendments thereto; subsection 229(1)(c) of the Education Act, S.O. 1974, c. 109 and amendments thereto; and subsections 1(16), 1(17), 1(18) and 1(19) of Ontario Regulation 437/97.
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 the opportunity to obtain advice of legal counsel.
- 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
Counsel for the College requested the withdrawal of the allegations of professional misconduct outlined in paragraphs (d), (g) and (h) of the Notice of Hearing; namely, that the Member failed to comply with subsection 22(1)(c) of the Schools Administration Act, R.S.O. 1960, c. 361 and amendments thereto, and that he contravened subsections 1(5) and 1(14) of Ontario Regulation 437/97. The Committee granted these requests.
Having considered the Agreed Statement of Facts and Guilty Plea and the submissions of the parties, the Committee rendered an oral decision on February 27, 2019 finding that the Member engaged in acts of professional misconduct as alleged, contrary to sections 13, 14(d) and 14(f) of the TPA Regulation; subsection 21(1)(c) of the Schools Administration Act, R.S.O. 1970, c. 424 and amendments thereto; subsection 229(1)(c) of the Education Act, S.O. 1974, c. 109 and amendments thereto; and subsections 1(16), 1(17), 1(18) and 1(19) of Ontario Regulation 437/97.
REASONS FOR DECISION
The Member admitted the truth of the facts and exhibits referred to in paragraphs 1 to 7 of the Agreed Statement of Facts and Guilty Plea and admitted 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 sections 13, 14(d) and 14(f) of the TPA Regulation; subsection 21(1)(c) of the Schools Administration Act, R.S.O. 1970, c. 424 and amendments thereto; subsection 229(1)(c) of the Education Act, S.O. 1974, c. 109 and amendments thereto; and subsections 1(16), 1(17), 1(18) and 1(19) of Ontario Regulation 437/97.
The Committee notes that the Member’s underlying conduct in this matter – the sexual touching of two students – gives rise to the findings made pursuant to the TPA Regulation, the Schools Administration Act, and the Education Act, 1974, which were in place at the time of the Member’s misconduct. The fact of the Member’s guilty plea and finding of guilt before the Ontario Court of Justice on December 17, 2015 gives rise to the findings of professional misconduct made under the current legislation (i.e. Ontario Regulation 437/97, at subsections 1(16), 1(17), 1(18) and 1(19)). It undermines the reputation of the teaching profession when members commit criminal offences.
Paragraphs 4-7 of the Agreed Statement of Facts and Guilty Plea demonstrate that the Member contravened section 13 of the TPA Regulation, which provides that, “A member shall strive at all times to achieve and maintain the highest degree of professional competence and to uphold the honour, dignity and ethical standards of the teaching profession.”
Paragraphs 4-7 of the Agreed Statement of Facts and Guilty Plea demonstrate that the Member contravened subsection 14(d) of the TPA Regulation, which provides that, “A member shall show consistent justice and consideration in all his relations with pupils.”
Paragraphs 4-7 of the Agreed Statement of Facts and Guilty Plea demonstrate that the Member contravened subsection 14(f) of the TPA Regulation, which provides that, “A member shall concern himself with the welfare of his pupils while they are under his care.”
Paragraphs 4-7 of the Agreed Statement of Facts and Guilty Plea demonstrate that the Member contravened subsection 21(1)(c) of the Schools Administration Act, R.S.O. 1970, c. 424 and amendments thereto, which provides that, “It is the duty of a teacher to inculcate by precept and example respect for religion and the principles of Christian morality and the highest regard for truth, justice, loyalty, love of country, humanity, benevolence, sobriety, industry, frugality, purity, temperance and all other virtues.”
Paragraphs 4-7 of the Agreed Statement of Facts and Guilty Plea demonstrate that the Member contravened subsection 229(1)(c) of the Education Act, S.O. 1974, c. 109 and amendments thereto, which provides that, “It is the duty of a teacher to inculcate by precept and example respect for religion and the principles of Judaeo-Christian morality and the highest regard for truth, justice, loyalty, love of country, humanity, benevolence, sobriety, industry, frugality, purity, temperance and all other virtues.”
Paragraphs 4-7 of the Agreed Statement of Facts and Guilty Plea demonstrate that the Member 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).
Paragraphs 4-7 of the Agreed Statement of Facts and Guilty Plea demonstrate that the Member contravened a law, the contravention of which may cause a student to be put at or to remain at risk, contrary to Ontario Regulation 437/97, subsection 1(17).
Paragraphs 4-7 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 4-7 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
Through a Joint Submission on Penalty (Exhibit 4), the parties jointly submitted that the appropriate penalty to be imposed in this matter would be that the Committee:
direct the Registrar of the Ontario College of Teachers to immediately revoke the Certificate of Qualification and Registration of the Member, which Certificate the Member is to immediately surrender to the Registrar;
direct that the Member receive a written reprimand, and the fact of the reprimand is to be recorded on the Register of the Ontario College of Teachers (the “Register”).
PENALTY DECISION
In an oral decision rendered on February 27, 2019, 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 serious misconduct committed by the Member and is reasonable given the circumstances of this case.
In addition, the Committee accepts College Counsel’s submission that the Member’s misconduct included the sexual touching of two students’ genitals and it therefore consisted of an act listed at subsection 30.2(2) of the Act. Accordingly, pursuant to subsection 30.2(1) of the Act, the Committee made an order: directing the Member to receive a reprimand; and directing the Registrar to revoke the Member’s certificate of qualification and registration. The Committee denounces the Member’s egregious misconduct in the strongest terms.
With respect to the form of the reprimand, the Committee accepts the parties’ joint submission that a written reprimand is appropriate in this case. The Act is silent with respect to the form of reprimands (i.e. in person or in writing), and it would not bring the administration of the discipline process into disrepute or be contrary to the public interest to deliver a written reprimand to the Member in this case.
The Committee is satisfied that the penalty is appropriate in the circumstances and meets the principle of serving and protecting the public interest.
Date: February 28, 2019
______________________________
Jean-Luc Bernard, OCT Chair, Discipline Panel
______________________________
Godwin Ifedi Member, Discipline Panel
______________________________
Sara Nouini, OCT Member, Discipline Panel