DISCIPLINE COMMITTEE OF THE ONTARIO COLLEGE OF TEACHERS
DECISION AND REASONS FOR DECISION ON FINDING
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
Mark Anthony Caine, a member of the Ontario College of Teachers.
BETWEEN:
ONTARIO COLLEGE OF TEACHERS
– and –
MARK ANTHONY CAINE (REGISTRATION #276494)
PANEL: Vicki Shannon, OCT, Chair Colleen Landers Claudia Patenaude-Daniels, OCT
HEARD: May 28, 2018, June 15, 2018 and August 24, 2018
Shane D’Souza of McCarthy Tétrault LLP, for Ontario College of Teachers, assisted by Eleanor Enniss, Law Clerk
Lucas E. Lung of Lerners LLP, for Mark Anthony Caine, assisted by Jennifer Black, Student-at-Law
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 and no person shall publish the identity of, or any information that could disclose the identity of the person(s) who was allegedly sexually abused or the subject of the sexual misconduct or prohibited act involving child pornography.
This matter came on for hearing before a panel of the Discipline Committee (the “Committee”) on May 28, 2018, at the Ontario College of Teachers (the “College”) at Toronto.
A Notice of Hearing (Exhibit 1) dated March 17, 2015 was served on Mark Anthony Caine (the “Member”) requesting his presence on April 14, 2015 to set a date for hearing, and specifying the allegations. The hearing was subsequently set for May 28, 2018 and continued on June 15, 2018 and August 24, 2018.
The Member was in attendance at the hearing and had legal representation.
PUBLICATION BAN
The Committee ordered a publication ban pursuant to sections 32.1(3) and 32.1(4) of the Ontario College of Teachers Act, 1996 (the “Act”). 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 and no person shall publish the identity of, or any information that could disclose the identity of, the person(s) who was allegedly sexually abused or the subject of the sexual misconduct or prohibited act involving child pornography.
MOTION FOR TESTIMONY VIA VIDEOCONFERENCE
Prior to the hearing, a different panel of the Discipline Committee made an order permitting two student witnesses to testify via videoconference.1
At the outset of the hearing the parties brought a motion for an order from the Committee permitting their respective witnesses to testify via videoconference because they lived in Nunavut or Newfoundland. The parties jointly requested that the Committee make an order allowing the College’s two named witnesses, [XXX] (“Student 1”) and [XXX] (“Student 2”); and, the Member’s two named witnesses, Don Peters (“Mr. Peters”) and Kim Roberts (“Ms. Roberts”),2 to testify via videoconference. However, the parties made further submissions on whether or not the Committee should make an order allowing any further witnesses called by the defence to testify via videoconference, or, instead, restrict its order to the parties’ named witnesses.
College Counsel’s Position
College Counsel submitted that the Committee should make an order allowing the College’s two named witnesses and the Member’s two named witnesses to testify via videoconference. According to College Counsel, if the Member chooses to call any witnesses in reply then the parties could bring a motion before the Committee at that time. College Counsel submitted that it was more expeditious to grant the motion on request and save submission about the Member’s reply witnesses if the need arises.
Member’s Position
Member’s Counsel submitted that in addition to the two named witnesses, Mr. Peters and Ms. Roberts, any potential witness should also be permitted to testify via videoconference. According to Member’s Counsel, the Member’s role is to respond to a case that is being put forth by College Counsel, which is a “shifting landscape”. Potential witnesses could change based on the case put forth by the College. Member’s Counsel submitted that the Member is not obligated to disclose the names of potential witnesses, but stated that all potential witnesses live in Nunavut.3 Therefore, in order to ensure an expeditious hearing, Member’s Counsel requested that any further witnesses also be permitted to testify via videoconference. Member’s Counsel submitted that permitting any witnesses on behalf of the Member to testify via videoconference prevents Member’s Counsel from having to use the limited hearing time to bring a formal motion when the need arises.
Decision on Motion
After careful consideration of the parties’ submissions and the advice of Independent Legal Counsel, the Committee made an order permitting the College’s two named witnesses and the Member’s two named witnesses to testify via videoconference. The Committee made a further order permitting the Member to have any reply witnesses outside of Ontario testify via videoconference.
Reasons for Decision on Motion
The Committee has the discretion under Rule 8.01 of the Rules of Procedure of the Discipline Committee and of the Fitness to Practise Committee (the “Rules”) to order that some or part of a hearing be held electronically, unless it is satisfied that there is evidence that a party is likely to suffer significant prejudice. The Committee weighed the interests of the parties and the public interest, and finds that there is no evidence of significant prejudice to the College or the public by accepting the parties’ joint request to have their two named witnesses testify via videoconference, and by ordering that if the need arises for the Member to call further witnesses in reply, these witnesses could also testify via videoconference.
The Committee found that it was unnecessary for the parties to argue a motion about permitting the Member’s potential witnesses to testify via videoconference. The Committee found it was in the public interest for the hearing to proceed expeditiously and found that permitting the parties’ named witnesses and the Member’s potential future witnesses to testify via videoconference furthers the goal of having an expeditious hearing on the merits.
OVERVIEW
The allegations in this matter relate to the 2012-2013 academic year at a school in Nunavut and involve Grade [XXX] female students. It is alleged that the Member touched and/or pushed up against female students’ bodies. It is further alleged that during the same academic year the Member made inappropriate comments to these students, including but not limited to: (a) “you are beautiful”, “you are a beautiful girl”, and/or “you are going to grow up and be very beautiful”; (b) “babe” and/or “baby”; and, (c) “sweetie”.
The Committee’s task is to determine whether the facts alleged by the College have been proven on a balance of probabilities and if so, whether the Member’s conduct gives rise to a finding of professional misconduct. For the reasons that follow, the Committee finds that the Member engaged in professional misconduct, as set out below.
THE ALLEGATIONS
The allegations against the Member in the Notice of Hearing are as follows:
IT IS ALLEGED that Mark Anthony Caine is guilty of professional misconduct as defined in subsections 30(2) and 40(1.1)4 of 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 verbally, contrary to Ontario Regulation 437/97, subsection 1(7);
(c) he abused a student physically, contrary to Ontario Regulation 437/97, subsection 1(7.1);
(d) he abused a student psychologically or emotionally, contrary to Ontario Regulation 437/97, subsection 1(7.2);
(e) he abused a student sexually, contrary to Ontario Regulation 437/97, subsection 1(7.3) and/or engaged in sexual abuse of a student or students as defined in section 1 of the Act;
(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); and
(i) he has been found to have committed professional misconduct by the Nunavut Director of Education, based on facts that would constitute professional misconduct as defined in section 1, contrary to Ontario Regulation 437/97, section 2.5
PARTICULARS OF THESE ALLEGATIONS ARE AS FOLLOWS
Mark Anthony Caine is a member of the Ontario College of Teachers.
At all material times, the Member was employed by the Nunavut Department of Education as a Grade [XXX] teacher at [XXX] School (the “School”), a [XXX] school from Grades [XXX] to [XXX] in Iqaluit, Nunavut.
During the 2012-2013 academic year, the Member was the teacher of Student Number 1, Student Number 2, Student Number 3, and Student Number 4, female students in Grade [XXX] at the School.
On or about early March 2013, Student Number 1 reported to administrators that the Member had touched and/or pushed up against her body with his body during the academic year.
During the course of their investigation, administrators received similar complaints from Student Number 2, Student Number 3, and Student Number 4 that the Member had touched and/or pushed up against each of them with his body during the academic year.
The Member made inappropriate comments to these students, including but not limited to:
(a) “you are beautiful” and/or “you are a beautiful girl” and/or “you are going to grow up and be very beautiful”;
(b) called a student or students “babe” and/or “baby”;
(c) called a student or students “sweetie”.
On or about May 15, 2013, the Member’s employment was terminated from his teaching position.
On or about June 6, 2013, the Deputy Minister of Education of Nunavut cancelled the Member’s Interim Professional Certificate as a result of unprofessional conduct, effective May 13, 2013.6
THE MEMBER’S PLEA
The Member denied the allegations set out in the Notice of Hearing.
THE EVIDENCE
The College presented oral and documentary evidence in order to prove the allegations set out in the Notice of Hearing. In response, the Member presented oral, video, and documentary evidence. Relevant portions of this evidence will be set out in greater detail, as needed, in the Committee’s reasons for decision below. The following is a brief summary of the oral evidence.
The College’s Oral Evidence
The College sought and the Committee ordered that the witnesses in this matter be excluded from the hearing until called to give evidence, in accordance with Rule 13.12 of the Rules.
In addition to documentary evidence, the College called two witnesses: Student 1, (as she is referred to in the Notice of Hearing); and, Student 2 (as she is referred to in the Notice of Hearing).
In addition to documentary and video evidence, Member’s Counsel called two witnesses: Don Peters (“Mr. Peters”), the principal at the School during the 2012-2013 academic year, and the Member.
For reasons that will be set out in greater detail below, as needed, the Committee found that the two student witnesses’ evidence was credible and consistent with respect to all material facts. Although there were minor inconsistencies between their accounts the Committee does not find that these types of minor discrepancies are material or diminished the witnesses’ credibility about the key facts at issue.
Student 1’s Testimony
At the time of the hearing, Student 1 was [XXX] years old and in Grade [XXX]. However, Student 1 stated that she was not currently in school due to [XXX]. During the 2012-2013 academic year, Student 1 was in Grade [XXX] at the School. The Member was not her [XXX] teacher, but he was her teacher for two subjects, [XXX].
Student 1 gave evidence about her interactions with the Member during the 2012-2013 academic year. Student 1 testified that the Member made inappropriate comments to her (for example, he called her “beautiful”), and that he touched her buttocks.
Student 1 testified about reporting these incidents to a family friend and teacher at the school. She also testified about her interview with an RCMP officer.
Student 1 testified about the impact that these incidents had on her. Amongst other things, she testified that it has been years since the events in question but the incidents still “impact [her] life and the trust [she] has for mentors.”
Student 2’s Testimony
At the time of hearing, Student 2 was [XXX] years old and in Grade [XXX]. During the 2012-2013 academic year, Student 2 was in Grade [XXX] at the School and the Member was her teacher.
Student 2 testified about her interactions with the Member during the 2012-2013 academic year. Specifically, she testified that the Member made inappropriate comments to her (for example, he called her “babe” and “beautiful”), and that the Member touched her buttocks on two occasions. Student 2 explained the circumstances surrounding the disclosure of these incidents. Student 2 further testified about the impact these incidents had on her. Amongst other things, she stated that the events in question “scarred” her.
The Member’s Oral Evidence
Mr. Peters’ Testimony
Mr. Peters has been involved in education for over 20 years. At the time of the events in question, Mr. Peters was the principal at the School. Mr. Peters testified that during the 2012-2013 academic year, the Member taught Grade [XXX] at the School. Mr. Peters also testified that he and the Member were not only colleagues, but friends outside of the School.
Mr. Peters testified that as a principal it was his responsibility to assess and evaluate teacher performance at the School. He stated that the Member was an excellent teacher, and that he was very “hands-on” and highly involved in extra-curricular activities. Specifically, Mr. Peters testified that the Member went “over and above” his teaching duties.
Mr. Peters testified about the School’s annual [XXX] trip. He explained that they took students to [XXX] to be a part of the [XXX] tournament. Mr. Peters testified that the annual [XXX] trip was good motivator because the students had to be “good citizens” in order to be permitted to go. According to Mr. Peters, the teachers had the “final say” whether a particular student was permitted to attend the [XXX] trip or not. Although the [XXX] trip was a good “motivator” for the students, Mr. Peters testified that in his years at the School he had never prevented a student from attending the [XXX] trip.
Mr. Peters testified that he had never seen the Member act inappropriately with students. He explained that prior to the allegations in the Notice of Hearing, the Member had no other allegations of inappropriate conduct against him. Similarly, Mr. Peters testified that the Member had no prior discipline history with the Board.
Mr. Peters testified that after being made aware of the events in question, he contacted the superintendent of the School, Mr. Mooney. After doing so, Mr. Peter stated that he was not involved in the investigation into the events in question.
The Member’s Testimony
The Member testified about his educational background (as reflected in his curriculum vitae at Exhibit 6). The Member started working as a teacher in 1998. He worked in Toronto from 1998 until 2007. In 2007, the Member moved to Nunavut to continue his teaching career. The Member started teaching at the School in 2013. The Member testified about his heavy involvement in extra-curriculars throughout his educational career.
In 2012-2013, the Member was Student 2, Student 3, and Student 4’s Grade [XXX] teacher. In the same academic year, the Member taught Student 1 two subjects, [XXX]. The Member testified that his Grade [XXX] class had behaviour issues. He stated that he used the School’s annual [XXX] trip ([XXX]) to motivate his students. However, according to the Member, Student 1 and Student 2 were good students with no behaviour issues. The Member testified that he did not use the [XXX] trip as a form of discipline and/or motivation for Student 1 and Student 2.
On March 14, 2013, the Member testified that Mr. Peters and John Fanjoy (“Mr. Fanjoy”, the vice principal), informed him that there was going to be an investigation against him. On March 15, 2013 the Member received a letter from the Nunavut Department of Education informing him that he was suspended with pay pending an investigation (Exhibit 8). The Member testified that he received the details of the allegations against him at the first fact-finding meeting on March 21, 2013 (Exhibit 9). The Member stated that Student 1 was one of the three students identified during the first fact-finding meeting to have made allegations against the Member. On May 9, 2013, a second fact-finding meeting occurred, where the Member was informed of further allegations made against him (Exhibit 10). Student 1 was one of two students identified during the second fact-finding meeting that made allegations against the Member.
The Member testified that he was charged criminally with three counts of sexual interference and that all the charges against him were stayed on July 13, 2013 (Exhibit 11). He explained that the allegations against him were publicized in the local and national news. The Member testified that he was devastated because the allegations were false, but that he felt he had no choice but to leave Nunavut.
The Member denied all of the allegations in the Notice of Hearing. He stated that he never touched any students’ buttocks (intentionally or unintentionally), and that he never called any students “sweetie”, “babe”, or “beautiful”.
General Credibility Assessment
In general, the Committee accepts the two student witnesses’ evidence and finds their version of events to be more probable than the Member’s version of events. The Committee provides a further assessment of the witnesses’ credibility below in discussing each of the Committee’s factual findings.
The Member’s Theory of the Case
The Member’s evidence was that the allegations, as outlined in the Notice of Hearing, did not occur. The Member’s theory of the case was that both Student 1 and Student 2 colluded to fabricate the allegations against him because the Member disciplined them and/or their good friends (Student 3 and Student 4). Student 3 and Student 4 did not attend the hearing. Member’s Counsel argued that their absence was deliberate and consistent with the Member’s argument that the allegations were fabricated. According to the Member, he disciplined the students by threatening to prevent the students from attending the School’s coveted annual [XXX] trip. It was the Member’s position that the students were good friends and they conspired against him out of revenge, and fabricated the allegations against the Member.
Evidence Discrediting the Member’s Revenge Theory
To begin, the Member did not produce any evidence to support or corroborate his revenge theory. Although the Member was not required to prove that the students fabricated the allegations (and the College bears the burden of proof in this hearing), the Member advanced this theory at the hearing to discredit the students. In addition to the lack of corroborating evidence, the Committee found the following evidence greatly weakened the plausibility of the Member’s theory of the case.
Student 1
On direct-examination, College Counsel asked if Student 1 understood the importance of telling the truth, Student 1 responded by saying: “I would not put someone‘s life in jeopardy, no reason to make this up after all of these years.” Student 1 testified that she had “no real goal” to discredit the Member. During direct examination, the question was put to the witness that Member’s Counsel would suggest she is lying, Student 1 responded, “why would I lie after all of these years.” On cross-examination, Student 1 was asked if she was confused or misinterpreted the interactions between her and the Member. Student 1 responded, “it can’t be…I don’t have to take back anything because what I am saying is true.”
During both direct and cross-examination, Student 1 testified that she did not speak to any former students of the Member to prepare for the hearing. Further, Student 1 testified that she knew Student 2 because they were on the same [XXX] team in Grade[XXX], but that they were just acquaintances and that they “are two different people”.
Moreover, Student 1 testified that she was a good student in Grade [XXX] and did not have any prior disciplinary issues. She explained that because she was a good student the Member favoured her by sending her to do errands, or asking her to do favours for him in class. Student 1 testified that the Member never used the threat of not going on the School’s [XXX] trip as a form of discipline towards her. She further stated that she does not remember any of her friends being threatened with not going on the [XXX] trip. Student 1 testified that even if the Member used the [XXX] trip as motivation for her friends, [XXX] was not important enough to her to justify colluding and fabricating the allegations against the Member.
Furthermore, Student 1 testified that she never intended to complain about her interactions with the Member. According to Student 1, she accidently reported the interactions between her and the Member to a family friend that was also a teacher at the School. Student 1 testified adamantly that she was not lying and that she did not “make up” the allegations against the Member. She explained that the suggestion that she was lying made her “angry, sad, and confused”. Student 1 testified that although it has been years since the events in question, her interactions with the Member continue to impact her life and the “trust [she] has for mentors”.
Student 2
Student 2 testified that she did not speak to any of the Member’s former students to prepare for the hearing, and that she did not see any other students’ evidence in relation to the hearing. Student 2 testified further that she understood the importance of telling the truth. She explained that she had no reason to lie and that she wanted to ensure that incidents like this “do not happen again”. Student 2 testified that she would not “go through all this trouble to make [the allegations] up”. She explained that she did not intend to complain in the first place, and that she only disclosed the incidents between her and the Member when the allegations against the Member were being investigated.
Student 2 also testified that she knew Student 1 from their time together on the School’s [XXX] team. She explained, however, that she and Student 1 are not friends, and that when they attended the School they never “hung out” together outside of school because they had “different friends.”
Further, Student 2 testified that the Member never disciplined her because she was a good student. She stated that she had no prior disciplinary issues and that the Member never told her that she could not go on the School’s [XXX] trip. Student 1 testified that it was possible that the Member told other students they could not go on the [XXX] trip, but the Member did not say this to her.
Student 2 testified that she would not fabricate the allegations against the Member, and “go through this trouble just for those girls and the [XXX] trip”. Student 2 explained that she remembered the incidents in question because they “scarred her” and she wanted to prevent similar incidents from happening to others.
Mr. Peters
Mr. Peters testified that the annual [XXX] trip was used as a “motivator” to entice students to behave. However, he stated that, in his experience as a principal at the School, he had never “held back” a student and prevented them from participating in the annual [XXX] trip.
Mr. Peters further testified that neither Student 1 nor Student 2 had any discipline history with the School. He stated that they were never sent to the office for any disciplinary issues.
The Member
The Member testified that both Student 1 and Student 2 were academically inclined students. He stated that he did not send Student 1 or Student 2 to the office for any academic or disciplinary issues. The Member admitted in cross-examination that he never used the “threat” of not attending the School’s annual [XXX] trip against Student 1 or Student 2. He stated that he used the [XXX] trip as a “motivator” for other students to behave, but he did not use it as a motivator for Student 1 or Student 2.
Further, the Member testified that Student 1 and two other students were the first to complain to the School’s administration about the Member. It was not until later, when Student 2 was approached by a member of the School’s administration to be interviewed, that Student 2 complained about the Member.
The Committee’s Findings on Credibility
The Committee finds that Student 1 and Student 2’s version of events, on all material facts, are more likely to have occurred than not. Where there were differences with the Member’s version of events, the Committee accepted the students’ version as discussed below. The Committee further finds that the Member’s revenge theory was severely weakened by the evidence described above. There was no evidence of bias or motivation on the part of Student 1 or Student 2 that would negatively affect their credibility.
The evidence demonstrated that Student 1 and Student 2 were both good students with no prior discipline history at the School. There was no threat to either of them of being deprived of going on the School’s [XXX] trip; this fact was admitted by both the Member, as well as Mr. Peters.
Further, Student 1 and Student 2 both testified that they were not friends outside of school. The fact that the [XXX] trip may or may not have been used as a form of discipline against other students (for example, Student 3 and Student 4) does not prove that Student 1 and Student 2 had an axe to grind with the Member. It is not reasonable to conclude that Student 1 and Student 2, five years later, went through all of effort of participating in this proceeding because the Member used the threat of missing a [XXX] trip against other students.
Moreover, the evidence demonstrated that neither Student 1 nor Student 2 approached the administration to complain about the Member. Student 1 and Student 2 did not intend to report the Member. Student 1 stated that she “accidently” disclosed an incident to a family friend and teacher at the School. Student 2 disclosed her interactions with the Member when a member of the administration approached her and asked her questions. If Student 1 and Student 2 had fabricated the allegations against the Member out of revenge it is more likely that they would have initiated the disclosure of the events by proactively reporting the Member to the School’s administration.
Neither Student 1 nor Student 2 had any real interest in the outcome of the hearing. Student 1 and Student 2 participated in the hearing voluntarily and both expressed that their motivation to participate was because they wanted to prevent similar incidents from happening to other students. Student 2 testified [XXX] via videoconference from a courthouse in Nunavut, and Student 1 testified in person only weeks after undergoing a serious[XXX].
In addition, as discussed further below, both Student 1 and Student 2 had the opportunity to observe the events in question; they both experienced the conduct first-hand. The consistency of their testimony is discussed in relation to each particular factual finding below.
The Member also had an opportunity to observe the events first-hand. While the Member has an interest in the outcome, the Committee did not consider this to be an important factor. The Member denies any inappropriate touching or comments. The Member’s theory is that the allegations are a complete fabrication. The Committee found the Member’s theory to be implausible. Based on the Member’s own evidence that Student 1 and Student 2 were good students, it is not plausible that they would fabricate allegations against him because they were angry about the Member threatening to take away their friends’ ability to go on a [XXX] trip.
The Committee finds that both Student 1 and Student 2 presented as credible witnesses, and prefers their version of events, on all material facts, over the Member’s.
SUBMISSIONS OF COLLEGE COUNSEL
College Counsel submitted that the evidence presented to the Committee proves each of the allegations set out in the Notice of Hearing, on a balance of probabilities. College Counsel therefore submitted that the Committee should find that the Member engaged in professional misconduct as alleged in the Notice of Hearing. With respect to the allegation that the Member breached subsection 1(5) of Ontario Regulation 437/97, College Counsel submitted that it was not necessary to present expert evidence to prove that the Member failed to maintain the standards of the profession because it is self-evidently a breach of professional standards for a member to sexually and physically abuse a student.
College Counsel requested that the Committee accept the withdrawal the allegation of professional misconduct at paragraph (i) of the Notice of Hearing, namely, that the Member has been found to have Committee professional misconduct by the Nunavut Director of Education, based on facts that would constitute professional misconduct as defined in section 1, contrary to Ontario Regulation 437/97, section 2. College Counsel stated that the College was therefore not seeking any factual finding on particular (8) of the Notice of Hearing.
College Counsel further requested that the Committee limit its factual findings to the two students who testified for the College, Student 1 and Student 2, for the particulars at paragraphs (5) and (6) of the Notice of Hearing. College Counsel submitted that because Student 3 and Student 4 did not testify, there was no evidence presented to support any factual findings in relation to them.
College Counsel extensively reviewed the relevant evidence with the Committee and submitted that the two College witnesses were credible. According to College Counsel, the Member’s theory of the case was unreasonable. College Counsel submitted that the evidence presented established that the Member’s proposition (that the student witnesses were lying to “get back” at the Member) was “far fetched”.
College Counsel acknowledged the evidence before the Committee regarding the fact that the Member was a well-respected teacher and member of the community in Nunavut. However, College Counsel submitted that the evidence does not necessarily assist the Committee with the task in weighing the students’ evidence against the Member’s. College Counsel submitted that this case ultimately rested on the Committee’s credibility assessment regarding whose evidence they find to be more believable.
SUBMISSIONS OF MEMBER’S COUNSEL
Member’s Counsel extensively reviewed the relevant evidence with the Committee and submitted that the two College witnesses were not credible. Member’s Counsel reviewed the evidence of Student 1 and Student 2 and submitted that both Student 1 and Student 2’s evidence were riddled with inconsistencies. Accordingly, neither Student 1 nor Student 2’s evidence was reliable. Member’s Counsel submitted that the allegations against the Member were false, and that the evidence submitted does not support a finding of professional misconduct.
Member’s Counsel reviewed Mr. Peters’ and the Member’s evidence, and submitted that prior to the allegations in the Notice of Hearing the Member had no prior discipline history. Member’s Counsel submitted that the Member was a well-respected teacher and member of the local community in Nunavut.
According to Member’s Counsel, the fact that the Member was charged criminally in relation to the allegations in the Notice of Hearing, and that the charges were stayed on July 15, 2013 (Exhibit 11) is significant. Member’s Counsel acknowledged that the standard of proof in criminal court is different but, nonetheless submitted that the prosecutor stayed the charges because there simply was not enough evidence.
DECISION ON FINDING
Onus and Standard of Proof
The College bears the burden of proving the allegations in accordance with the standard of proof set out in F.H. v. McDougall, 2008 SCC 53, which is proof on a balance of probabilities.
Decision
Counsel for the College requested that the allegation of professional misconduct outlined in paragraph (i) (and the corresponding particular at paragraph (8)) of the Notice of Hearing, namely that the Member contravened subsection 2 of Ontario Regulation 437/97, be withdrawn. The Committee granted this request.
Having considered the evidence, onus and standard of proof, and the submissions of the parties the Committee finds that the Member engaged in acts of professional misconduct as alleged, contrary to Ontario Regulation 437/97, subsections 1(5), 1(7), 1(7.1), 1(7.2), 1(7.3), 1(15), 1(18) and 1(19).
The Member’s misconduct consists of one of the enumerated acts of sexual abuse set out at subsection 30.2(2) of the Act (i.e., touching of a sexual nature of the student’s buttocks). As required by subsection 30.2(1)(c)(i) of the Ontario College of Teachers Act, 1996, the Committee makes an interim order directing the Registrar to suspend the Member’s certificate of qualification and registration until the Committee makes its order on sanction.7
REASONS FOR DECISION
The Committee has carefully reviewed the evidence and submissions presented in this matter. In the reasons that follow, the Committee comments only on the portions of the evidence that are most relevant to the allegations contained in the Notice of Hearing. The Committee first sets out its factual findings and then explains why these facts give rise to a finding of professional misconduct, as alleged in the Notice of Hearing.
Factual Findings
- The Member touched and/or pushed up against Student 1’s body
The Committee finds that in or around early March 2013, Student 1 reported to administrators that the Member had touched and/or pushed up against her body with his body during the academic year, as alleged at paragraph 4 of the Notice of Hearing.
The Committee received Student 1’s testimony and a video recording of her interview with a RCMP officer relating to this allegation (Exhibit 5). The Committee also received the Member’s oral testimony relating to this allegation.
Student 1’s Evidence
The Pencil-Sharpening Incident
During direct examination, Student 1 testified that during the 2012-2013 academic year the “Member brushed his hand across my butt when I was like, sharpening my pencil near his desk.” She explained that the Member did not slap her “butt” because she did not hear a noise, instead he “brushed her butt” with his palm. Student 1 stated that she knew the Member brushed her on the buttocks with his palm because she “didn’t feel any knuckles”. Student 1 testified there was no reason for the Member to touch her on the buttocks as he passed by her since there were several feet behind her, leaving the Member plenty of space to walk by.
During cross-examination, Student 1 again testified that the Member brushed her buttocks with the palm of one hand. She stated her back was turned to the Member since she was facing the pencil sharpener, which was over the garbage. Student 1 testified that because her back was towards the Member, she did not see him touch her buttocks, but instead felt his open palm brush against her buttocks. Student 1 stated that the pencil sharpener incident happened during class time, but that she did not think any of her peers saw because she believed they would have said something if they did see this incident.
Student 1 also testified about the disclosure of the pencil-sharpening incident. She stated that she did not intend to complain about this incident, and that she never went to the principal to report the Member. Student 1 explained that the pencil-sharpening incident “kind of just came out unintentionally”. Student 1 stated that on a Thursday following this incident, she was waiting in the hallway near the office for her bag to be dropped off for [XXX] practice. A family friend and teacher at the School, Jill Billingham (“Ms. Billingham”), saw her and asked why she was waiting in the hallway and not in class. Student 1 testified that she told Ms. Billingham that she felt uncomfortable in class and preferred to wait in the hallway. Student 1 explained that Ms. Billingham was confused by her comment. Student 1 stated that she and Ms. Billingham were having a natural conversation and that she “accidentally [told Ms. Billingham] that [the Member] inappropriately touched [her] and that she felt uncomfortable.” Student 1 testified that Ms. Billingham’s reaction was “shocked” and “worried”, and that she asked Ms. Billingham not to tell anybody about the pencil-sharpening incident.
The Committee also considered Student 1’s video-recorded statement to the RCMP officer on March 19, 2013 (Exhibit 5). In the video, Student 1 was describing the pencil-sharpening incident to a RCMP officer. Student 1 told the RCMP officer that she was sharpening her pencil at the garbage when the Member walked behind her and “kinda like grabbed my butt”. She stated that there was a lot of room behind her for the Member to get by. Student 1 also physically demonstrated the pencil-sharpening incident to the RCMP officer by brushing her own hand with her other hand and then brushing the desk.
The Neck-Touching Incident
Student 1 testified that some time after the pencil-sharpening incident, the Member touched her on her neck. She stated that she asked the Member to accompany her into the hallway and told him that she was feeling sick. Student 1 testified that the Member then “…took his index and middle finger on both hands and like, kind of, like touched my neck, as if he was searching for something, and it just felt really weird.” According to Student 1, after the Member touched her on the neck, he told her that she should go home and get some rest.
Student 1 explained that she was not actually ill on the day of the neck-touching incident. She testified that she felt uncomfortable in the Member’s class after the pencil-sharpening incident, and that she just wanted to go home.
Student 1 testified that she did not tell the Member how she felt at the time. She explained that she was scared of getting in trouble and that “it’s just a hard topic to bring up.” Student 1 also testified that she did not disclose the neck-touching incident to her parents or other teachers at the time. She explained that she wished she told someone sooner, but, at the time, it made more sense to her to keep it to herself.
The Member’s Evidence
Regarding the pencil-sharpening incident, the Member testified that he did not touch Student 1’s buttocks on any occasion. On cross examination, the Member stated that he may have accidently brushed “students” with his shoulder, but that he never accidentally touched any students’ buttocks.
Further, the Member testified in direct examination that he did not recall touching Student 1 on the neck. He stated that he never touched any students inappropriately.
Credibility Assessment
In addition to the general credibility assessment described above, the Committee finds that Student 1 presented as a credible witness. The Committee finds Student 1’s version of events regarding the pencil-sharpening incident and the neck-touching incident to be more probable than the Member’s version of the events.
The Pencil-Sharpening Incident
Student 1 was able to clearly recall the pencil-sharpening incident. She testified about the location of the incident, the sequence of events, and the layout and spacing of the classroom.
Student 1’s testimony was also very plausible. First, Student 1 was adamant that the Member brushed her buttocks with his palm because she did not feel any knuckles. The Committee finds it reasonable for Student 1 to conclude that the Member touched her buttocks with an open palm because it is very plausible that a person could identify the difference between the palm and the knuckles of a hand if they were brushed on the buttocks. Moreover, Student 1 was asked whether the brushing of her buttocks could have been an accident or a misinterpretation. Student 1’s response was “when you actually accidentally like, bump into someone or you, like you don’t know, you apologize because you feel contact as well, but there was no comments made [sic]…” The Committee found plausible Student 1’s explanation for concluding the Member’s conduct was deliberate.
Further, Student 1’s testimony was consistent throughout both direct- and cross-examinations. Her testimony did not waver and she remained adamant about her version of events during cross-examination. Student 1’s testimony was also externally consistent with the video recording of the interview with the RCMP officer (Exhibit 5). In both her oral testimony and the video recording of her interview with the RCMP officer, Student 1 testified about being at the sharpener during class and then feeling the Member “brush” or “touch” her on the buttocks as he walked by.
The Committee recognizes that the video recording showed Student 1 using two open palm hands to demonstrate to the RCMP officer how the Member brushed her buttock (Exhibit 5). However, during her oral testimony, Student 1 stated that the Member brushed her buttocks with one open palm. The Committee finds that this discrepancy is minor and does not affect the weight of Student 1’s evidence regarding the pencil-sharpening incident. While the video recording depicted Student 1 demonstrating the touching of the buttocks with two hands, it also showed Student 1 brushing her own hand with one open palm, and showed her brushing the table with one open palm. The Committee finds it reasonable that a [XXX] year old being interviewed by an RCMP officer would use whatever physical actions she could to try and describe the pencil-sharpening incident. The fact that Student 1 used two hands to demonstrate the brushing of buttocks, after using a single hand to demonstrate it, does not itself contradict Student 1’s testimony regarding the pencil-sharpening incident.
The Committee recognizes that the Member’s theory of the case is that Student 1 along with other students colluded to make up the allegations against the Member (as explained above). However, the Committee finds that Student 1’s testimony about the accidental disclosure about the pencil-sharpening incident further weakens the Member’s theory of the case. Student 1 was consistent in both direct and cross-examination about not intending to disclose the pencil-sharpening incident to Ms. Billingham. Student 1 testified that she did “not like making a big scene” and that “she did not want anyone else to know… [and] did not want to get anyone in trouble.” The Committee finds that if Student 1 was lying about the pencil-sharpening incident, she would have reported this incident to the principal.
The Neck-Touching Incident
Student 1 was able to clearly recall the neck-touching incident. Student 1 testified about this incident with specific details. Namely, she stated that it happened at some point after the pencil-sharpening incident and that it occurred on a Thursday. Student 1’s evidence was reasonable and plausible. She explained that following the pencil-sharpening incident she was uncomfortable around the Member and decided to fake being sick so she could go home.
Member’s Counsel presented Student 1 with a transcript of a statement she gave to a police officer regarding the pencil-sharpening incident. Member’s Counsel pointed Student 1 to the end of the statement where the police officer asks “is there anything else?” Student 1 responded, “no”. The Committee recognizes that Student 1 did not report the neck-touching incident to the police, but testified about this incident and how it made her feel. The Committee finds that Student 1’s failure to report the neck-touching incident to the police officer does not undermine the weight of her evidence in this regard. Specifically, the Committee does not find this to be an inconsistency. Student 1 testified that she remembered this incident when she was speaking to College Counsel. She explained that she did not report it to the police officer at the time because she was unaware of the significance of it.
The Committee finds it reasonable that Student 1 gave additional details at the hearing. The fact that Student 1 did not disclose the neck-touching incident to the police officer does not mean that this incident did not happen. It is completely plausible that Student 1 did not find the neck-touching incident to be relevant at the time, but, now, having matured she was able to reflect back on her interactions with the Member and give more details regarding various inappropriate incidents.
During the Member’s testimony, he denied touching Student 1’s buttocks or neck. The Member did not provide an alternative version of the pencil-sharpening incident or the hallway discussion; he simply stated that he did not touch Student 1’s buttocks or neck.
The Member’s denial is inconsistent with Student 1’s evidence. Because the Committee finds Student 1 to be credible and rejects the Member’s fabrication theory, the Committee does not accept the Member’s straight denial.
Conclusion
For the reasons described above, the Committee does not find the Member’s theory of the case (namely, that Student 1 made up the pencil-sharpening incident and the neck-touching incident to “get back” at the Member) to be plausible. Based on Student 1’s evidence, the Committee finds it more likely than not that during the 2012-2013 academic year, the Member touched Student 1’s buttocks and placed his fingers on her neck.
- The Member touched and/or pushed up against Student 2’s body
The Committee finds that the Member touched Student 2’s buttocks on two separate occasions. The Committee received Student 2’s oral evidence regarding these incidents, as well as the oral evidence of the Member.
Student 2’s Evidence
The Washroom Incident
Student 2 testified that one day, during the 2012-2013 academic year, [XXX] (“Classmate 1”) was in the women’s washroom crying because a family member had passed away. Student 2 stated that she entered the washroom and saw Classmate 1 crying and stayed to console her. After some time, Student 2 was nervous that she was late for class and that the Member was going to wonder where she was. Student 2 testified that she went to locate the Member to tell him where she was and to advise him of what Classmate 1 was going through. According to Student 2, the Member then followed her back to the women’s washroom to check on Classmate 1 and then the three of them left the women’s washroom together and “that’s when it happened.” Student 2 explained that the Member “touched her butt” near the entrance of the washroom. She stated that it was “very quick” and that she “started walking faster towards class because [she] was scared.”
Student 2 testified that she did not confront the Member about the washroom incident, nor did she complain to the administration or disclose it to her parents. She stated, “[XXX]- or [XXX]-year-old me would not know how to confront [the Member] and ask him or tell him how I felt about that.”
The Desk Incident
Student 2 testified that the Member touched her buttocks on a second occasion. She stated “we were in class and I went up to [the Member’s] desk to get help and he was helping me, and as I was walking away, he touched my butt. It’s more of a little tap than anything.”
Student 2 testified that when the Member “tapped” her buttocks it did not make a sound. She explained that she felt a little “tap” as she was walking away from the Member’s desk. Student 2 testified that it occurred in class, but that she was unsure if anyone saw what happened. She explained that she was scared when the desk incident happened, but that she did not confront the Member about it. Student 2 stated that she was young at the time of the desk incident and was not sure how to talk to the Member about what had happened because she was scared.
The Member’s Evidence
The Member testified that he did not touch Student 2’s buttocks on any occasion. On cross-examination, the Member stated that he may have accidently brushed “students” with his shoulder, but that he never accidentally touched a students’ buttocks.
Credibility Assessment
In addition to the credibility assessment described above, the Committee finds that Student 2 presented as a credible witness and finds Student 2’s version of events regarding the washroom incident and the desk incident to be more probable than the Member’s version of the events.
The Washroom Incident
The Committee finds Student 2’s testimony to be credible. Student 2 testified in a detailed and forthright manner regarding the washroom incident, and her testimony remained consistent throughout both direct and cross-examination.
Further, Student 2 later reported this incident to her father but not to the School’s administration. The Committee finds that this helps disprove the Member’s revenge theory, because if Student 2 had wanted to seek revenge on Member she would have proactively reported the washroom incident to the School’s administration. Instead, Student 2 was reluctant to disclose the washroom incident and when she did disclose it to her dad, she testified that she did not tell him all of the details.
The Committee recognizes the following minor inconsistencies. On cross-examination, Member’s Counsel directed Student 2 to Classmate 1’s interview transcripts with Paul Mooney (“Mr. Mooney”), a superintendent at the Board. When this incident was investigated, Classmate 1 told Mr. Mooney that Student 2 was the one who was crying in the washroom. When this was put to Student 2 on cross-examination, Student 2 explained “I might have been crying with her…[Classmate 1’s] [XXX] was my [XXX]’s something, so we were related to that family…”
Further, when asked by Member’s Counsel where Classmate 1 was when the touching of the buttocks occurred, Student 2 responded that she could not recall whether she was in front of them or behind them. Member’s Counsel directed Student 2 to her interview transcript with Mr. Mooney. In the interview, Student 2 stated, “[Classmate 1] was already in the back cleaning her nose, and then as she walking out she saw…she was in the back.” Member’s Counsel then directed Student 2 to Classmate 1’s interview transcript with Mr. Mooney. During the interview, Classmate 1 stated: “I was in front of [the Member and Student 2], so I didn’t see anything.”
Responding to these inconsistencies in the transcripts, Student 2 stated that Classmate 1 could have been in front of her and the Member, or behind them. She explained that she did not pay attention to where Classmate 1 was walking. Student 2 stated, “I don’t pay attention to if [Classmate 1 is] in front of me or behind me. I paid attention to [the Member] touching my butt and me getting out of there, walking away.”
The Committee does not find the aforementioned minor inconsistencies between Classmate 1’s interview and Student 2’s testimony regarding who was crying and who was in front of whom to be detrimental to Student 2’s evidence regarding the washroom incident. The substance of Student 2’s testimony on the key facts (that the Member touched her “butt”) remained consistent. Namely, that Student 2 and Classmate 1 were in the washroom, Student 2 went to advise the Member of the situation, the Member accompanied Student 2 to the washroom, and, as Student 2 was walking out of the washroom, the Member touched her buttocks which caused her to be afraid and move quickly.
The Desk Incident
The Committee finds Student 2 testimony to be credible as it relates to the desk incident. She testified in an honest and forthright manner, and did not overstate her evidence. Student 2’s testimony remained consistent during both direct- and cross-examination.
The Committee recognizes that when this incident was investigated, Student 2 told Mr. Mooney that [XXX] (“Classmate 2”) had seen the Member touch her buttocks. However, the Committee finds that Student 2’s explanation for this minor inconsistency is credible. Student 2 explained during cross-examination that she did not recall who saw the desk incident or who she said saw this incident because it was a long time ago. She stated that she just remembers that the Member “touched [her] butt.” When asked by Member’s Counsel if she fabricated this allegation against the Member, Student 2 said: “I wouldn’t say something that wasn’t true.”
The Committee finds it reasonable that given the passage of time, Student 2 does not remember every detail. Her memory that the Member touched her “butt” was clear.
The Committee finds Student 2’s testimony in this regard reliable because had Student 2 fabricated the desk incident she would have reported the incident to the School’s administration. As with the washroom incident, Student 2 did not immediately disclose the desk incident to the Member, her parents, or the School’s administration. Student 2 testified that she was scared and nervous and wanted to move past the incident. It was only when the administration approached her during their investigation in the allegations against the Member, did Student 2 disclose the desk incident.
The Member denied touching Student 2’s buttocks. The Member did not testify about what did or did not occur in the washroom or at his desk; he simply stated that he did not touch Student 2’s buttocks.
The Member’s denial is inconsistent with Student 2’s evidence. Because the Committee finds Student 2 to be credible and rejects the Member’s fabrication theory, the Committee does not accept the Member’s straight denial.
Conclusion
For the reasons described above, the Committee does not find the Member’s theory of the case (namely, that Student 2 made up the washroom incident and the desk incident to “get back” at the Member) to be plausible. Based on Student 2’s evidence, the Committee finds it more likely than not that during the 2012-2013 academic year, the Member touched Student 2’s buttocks on two separate occasions, as alleged at paragraph 5 of the Notice of Hearing.
College Counsel submitted that the Committee should make no factual findings in relation to Student 3 and Student 4. The Committee accepts College Counsel’s position as no evidence was presented in relation to Student 3 or Student 4. The Committee therefore makes no finding as it relates to Student 3 and Student 4.
- The Member made inappropriate comments to Student 1 and Student 2
The Committee finds that the Member made inappropriate comments to Students 1 and 2, as alleged at paragraph 6 of the Notice of Hearing. The Committee received the oral evidence of Student 1, Student 2, Mr. Peters, and the Member.
Student 1’s Evidence
Student 1 testified that the Member told her “[she] would grow up to be very beautiful”, and that “[she] would look like [her] sisters, because [she has] [XXX] sisters and they are all very beautiful as well.” Student 1 stated that she could not recall how many times the Member called her “beautiful” but that she recalled it being “on more than one occasion”.
Student 1 testified that she felt very uncomfortable when the Member called her “beautiful”. She explained that she found it “creepy” and that having her teacher call her “beautiful” made her feel “kind of gross”. Student 1 testified further that as a student you look up to your teachers because “they are part of your childhood” and help “raise you” during the day. She explained that hearing the Member call her “beautiful” was therefore really “confusing and disturbing”.
Student 1 testified that she did not confront the Member about how she felt because she did not want to get in trouble and did not want to “make a scene out of anything”. Student 1 explained that she did not immediately report the “beautiful” comments to her parents or the School’s administration because she felt “uncomfortable about the topic” and did not know how to bring it up. Student 1 testified that she later told her best friend and Ms. Billingham about the “beautiful” comments.
Student 2’s Evidence
Student 2 testified that on a couple of occasions the Member would say to her “thanks babe” and/or “come here babe”. She testified that the Member would make these comments in class when he needed something. Student 2 testified that the comments made her feel uncomfortable because “babe” is a “romantic word” and that this word is not appropriate when directed at students.
Student 2 further testified that the Member said: “you’re beautiful”. She stated that her class was in the [XXX] where the class was working on a [XXX]. Student 2 explained that the Member was looking through the [XXX], when he winked at her, and said: “you’re beautiful”. Student 2 testified that this comment made her uncomfortable and scared. She stated that the Member called her “beautiful” on this occasion only.
Student 2 testified that she did not confront the Member about how she felt when he used the words “babe” and “beautiful” towards her. She explained that she was young at the time, approximately [XXX] years old, and she did not know how to approach the Member. Student 2 stated that she did not initially tell anyone about the comments because she was embarrassed.
Mr. Peters’ Evidence
Mr. Peters’ testified that words like “sweetie”, “beautiful”, and “babe” were common terms of endearment where he was from on the East Coast. However, he testified that he did not recall witnessing the Member ever using the words “sweetie”, “beautiful”, and/or “babe” towards any of his students. On cross-examination, Mr. Peters admitted that he would not condone any teacher using the words “sweetie”, “beautiful”, and/or “babe” towards their [XXX] year old female students.
The Member’s Evidence
The Member testified that he never called any of his students “sweetie”, “babe”, or “beautiful”. On cross-examination, the Member admitted that it would be inappropriate for a teacher to refer to a student as “babe” or “beautiful”.
Credibility Assessment
In addition to the credibility assessment described above, the Committee finds that Student 1 and Student 2 presented as credible witnesses. The Committee finds Student 1 and Student 2’s version of events regarding the inappropriate comments to be more probable than the Member’s version of the events.
Student 1
The Committee finds that Student 1’s testimony regarding the “beautiful” comment is reliable. Student 1 testified in detail about the circumstances surrounding the “beautiful” comment. She described how the Member commented that she would grow up to be beautiful, just like her sisters. Student 1 was honest in her testimony and used words like “creepy” and “gross” to describe how the incident made her feel. The Committee finds that Student 1 was mature and insightful in her testimony, as she was able to define the negative impact the Member’s conduct had on her and how the trust between the student and teacher had been broken.
Student 2
The Committee finds Student 2’s testimony regarding the “babe” and “beautiful” comments is reliable. Student 2 testified in an honest and forthright manner and did not overstate her evidence. She was able to clearly recall the incident and testified with specific detail.
The Committee recognizes that during Mr. Mooney’s interview of Student 2, Student 2 told Mr. Mooney a slightly different version of events regarding the “babe” and “beautiful” comments.
On cross-examination, Member’s Counsel put the transcripts of Student 2’s interview with Mr. Mooney to her. When asked about the “babe” comments, Student 2 told Mr. Mooney: “If I was crying because I was getting bullied, [the Member] could come and ask what’s wrong, and he would say ‘what’s up babe?’ or ‘what’s going on babe?’.” On cross-examination, Student 2 explained that her oral testimony was simply her giving examples of instances that she remembered where the Member used the word “babe”. Student 2 testified that the interview with Mr. Mooney happened in 2013 and that was a long time ago, and that she was asked in direct examination to give examples of when the Member used the word “babe”. She explained that she testified about the instances that she recalled. The Committee does not find the minor inconsistency between Student 2’s oral testimony and her interview with Mr. Mooney to be detrimental to Student 2’s credibility. The core of Student 2’s evidence remained the same, namely that the Member referred to her as “babe” on a couple of occasions. It is reasonable after the passage of time for Student 2 to recall different examples of when the Member used the word “babe”.
Further, on cross-examination Member’s Counsel put the transcripts of Student 2’s interview with Mr. Mooney regarding the “beautiful” comment to her. In her interview with Mr. Mooney Student 2 stated that: “[the Member] had this new [XXX], and he asked me to go look. He was looking through the [XXX], and he looked at me, winked at me and said ‘beautiful’.” The Committee recognizes that in her oral testimony Student 2 testified that the Member said: “you’re beautiful”, but in her interview with Mr. Mooney she stated that the Member said “beautiful”. The Committee does not find this minor inconsistency to be detrimental to Student 2’s oral evidence regarding the “beautiful” comment. The core of the testimony remained consistent. Namely, that the Member looked through a [XXX] at Student 2, winked, and used the term “beautiful”. The Committee finds no real difference between the Member using the words “you’re beautiful” or “beautiful”.
The Member
The Member denied calling Student 1 or Student 2 “sweetie”, “babe”, and/or “beautiful”. The Member appeared to justify using such terms by stating that their use may be appropriate “depending on the context” but then stated that he would not, and did not, use those terms.
The Member’s denial was inconsistent with the Students’ evidence. Because the Committee found the Students to be credible and rejected the Member’s fabrication theory, the Committee did not accept the Member’s straight denial.
Conclusion
For the reasons described above, the Committee does not find the Member’s theory of the case (namely, that Student 1 and Student 2 fabricated the inappropriate comment incidents to “get back” at the Member) to be plausible. Based on Student 1 and Student 2’s evidence, the Committee finds it more likely than not that the Member made inappropriate comments to Student 1 and Student 2, including calling both students “beautiful” and calling Student 2 “babe”.
College Counsel submitted that the Committee should make no factual findings in relation to Student 3 and Student 4. The Committee accepts College Counsel’s position as no evidence was presented in relation to Student 3 or Student 4. The Committee therefore makes no finding as it relates to Student 3 and Student 4.
Legal Conclusions
The Member did engage in professional misconduct
The Committee finds that the Member’s conduct set out above gives rise to a finding of professional misconduct. In particular, the Member failed to maintain the standards of the profession, contrary to Ontario Regulation 437/97, subsection 1(5); he abused a student verbally contrary to Ontario Regulation 437/97, subsection 1(7); he abused a student physically contrary to Ontario Regulation 437/97, subsection 1(7.1); he abused a student psychologically or emotionally contrary to Ontario Regulation 437/97, subsection 1(7.2); he abused a student sexually contrary to Ontario Regulation 437/97, subsection 1(7.3); he failed to comply with section 264(1) of the Education Act, contrary to Ontario Regulation 437/97, subsection 1(15); 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, he engaged in conduct unbecoming a member, contrary to Ontario Regulation 437/97, subsection 1(19).
1) The Member failed to maintain the standards of the profession, contrary to Ontario Regulation 437/97, subsection 1(5)
The Committee finds that the Member failed to maintain the standards of the profession. Although no expert evidence was provided to prove that the Member’s conduct breached the standards of the profession, the Committee finds that expert evidence was not required in this case because the Member’s sexual abuse of the students is conduct that is so egregious that it is self-evidently misconduct.8
The Member’s sexual abuse of Student 1 and Student 2 was a clear breach of The Ethical Standards for the Teaching Profession and The Standards of Practice for the Teaching Profession. By touching Student 1 and Student 2 on the buttocks, the Member showed a blatant disregard for the ethical standards of care, trust, respect and integrity. He also failed to “promote and participate in the creation of [a] collaborative, safe and supportive learning [community],” as set out in The Standards of Practice for the Teaching Profession. Members of the teaching profession hold a unique position of trust and authority, and the Member abused this trust when he touched Student 1 and Student 2 in a sexual manner. The Member’s misconduct made Student 1 and Student 2 feel uncomfortable and scared. The Member demonstrated a gross disregard for Student 1 and Student 2’s physical and emotional well-being.
2) The Member abused a student verbally contrary to Ontario Regulation 437/97, subsection 1(7)
The Committee finds that the Member abused Student 1 and Student 2 verbally. As set out above, the Member told Student 1 that she was beautiful and that she would grow up to look like her sisters. Further, the Member called Student 2 “babe” and “beautiful”. Specifically, the Member said to Student 2 “come here babe” and “thanks babe”. Further, when looking through a [XXX], the Member winked at Student 2 and said, “you’re beautiful”.
The Committee notes that the Member did not use an aggressive tone of voice when he made the above comments. However, the comments were nonetheless inappropriate, unwelcome and verbally abusive. The comments related to the adolescent female student’s physical appearance, they were disrespectful and objectifying, and they made the students feel uncomfortable. It is unacceptable that the Member, in a position of trust and authority, would direct such comments to students. The Committee therefore concludes that the comments were verbally abusive and demonstrated poor professional judgement on the part of the Member.
3) The Member abused a student physically contrary to Ontario Regulation 437/97, subsection 1(7.1)
The Committee finds that the Member abused Student 1 and Student 2 physically. The Member touched both Student 1 and Student 2 on the buttocks. The Member also touched Student 1 on the neck with his fingers. In doing so the Member violated Student 1 and Student 2’s physical integrity and personal boundaries. This conduct evidently constitutes physical abuse.
4) The Member abused a student psychologically or emotionally, contrary to Ontario Regulation 437/97, subsection 1(7.2)
The Committee finds that the Member psychologically or emotionally abused Student 1 and Student 2. Both Student 1 and Student 2 testified about the impact the Member’s conduct had on them.
Student 1
Student 1 testified that when the Member called her “beautiful” and told her she would grow up to look like her sisters, she felt “very uncomfortable.” She explained that she felt “gross” and the comments were “confusing and disturbing” because “as a student you look up to your teacher.” Student 1 testified further that pencil-sharpening incident also made her feel uncomfortable. She explained that it was “unbelievable” that this incident happened.
The Committee received evidence about Student 1 struggling to report the Member’s conduct. Student 1 testified that “even today…it is hard to get out”.
Student 1 explained that she did not initially report the Member’s conduct because she felt “uncomfortable” and did not know how to bring it up because she was only [XXX] years old at the time. Student 1 stated that she did not initially report it because she did not want to get the Member “in trouble” or “make a big scene”.
Student 2
Student 2 testified that the Member’s inappropriate comments made her feel “scared and embarrassed”. She explained that “babe” is a “romantic” word that should not be said to a student. Student 2 testified that after the “babe” comments, the Member looked through the [XXX], winked at her, and said “you’re beautiful”. She explained that she was “even more scared and embarrassed” when this incident happened.
Student 2 also testified about how she felt when the Member touched her buttocks. She explained that the washroom incident and the desk incident made her feel scared and that she “was not comfortable with [the Member] doing that.” Student 2 testified that she was scarred by the Member’s conduct.
Student 2 testified about struggling with reporting the Member’s conduct. Student 2 testified that she was on [XXX] years old at the time and she felt she could not confront the Member about his conduct because she was young and did not know how to approach the Member. Student 2 explained that she was scared, embarrassed, and “did not want to think about it anymore and that [she] wanted to move on.” Student 2 further testified that she did not initially report the Member’s inappropriate comments to her parents, other teachers, or any of the School’s administration because she was “scared and embarrassed about what happened.” She explained that she did not want to get the Member in trouble and that it was only when the Member was being investigated and she was approached and asked questions did she “confess” what happened to her.
The Committee finds that the Member’s misconduct towards Student 1 and Student 2 were psychologically or emotionally abusive. His actions had a serious impact on Student 1 and Student 2’s psychological or emotional state. The Member’s misconduct severely betrayed the students’ trust, which proved to be destabilizing for both students.
5) The Member abused a student sexually, contrary to Ontario Regulation 437/97, subsection 1(7.3)
The Committee finds that the Member sexually abused Student 1 and Student 2. The definition of sexual abuse at section 1 of the Act includes, “touching, of a sexual nature, of the student by the member” and “behaviour or remarks of a sexual nature by the member towards the student.” The Member touched Student 1 and Student 2 on the buttocks. As demonstrated in their oral testimonies, these incidents made the students feel uncomfortable and scared. The fact that the Member touched the adolescent females’ buttocks – an intimate body part – establishes the sexual nature of the Member’s conduct. In arriving at its conclusion the Committee considered the area of the students’ body that was touched (the buttocks), the type of touch (gentle brush or tap), and the fact that it occurred on more than one occasion with more than one student.
The Member’s unacceptable conduct clearly meets the definition of sexual abuse set out in the Act. Further, the Member’s touching of sexual nature of Student 1 and Student 2’s buttocks constitutes one of the enumerated acts of sexual abuse at subsection 30.2(2), specifically subsection 30.2(2)(1)(vi).
6) The Member failed to comply with the Education Act, Revised Statutes of Ontario, 1990, chapter E.2, and specifically section 264(1) thereof or the Regulations made under that Act, contrary to Ontario Regulation 437/97, subsection 1(15)
The Committee finds that the Member failed to comply with section 264(1) of the Education Act, which sets out the duties of a teacher. Section 264(1)(c) of the Education Act provides that it is the duty of a teacher to “inculcate by precept and example […] the highest regard for truth, justice, loyalty, love of country, humanity, benevolence, sobriety, industry, frugality, purity, temperance and all other virtues.” The Member’s conduct demonstrated a complete disregard for loyalty, humanity and justice. The Member abused his position of trust and authority as a teacher by verbally, psychologically or emotionally, and sexually abusing Student 1 and Student 2. Through his inappropriate and completely unprofessional actions, the Member demonstrated a disturbing lack of concern for the students’ physical and emotional well-being.
7) 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)
The Committee finds that the Member’s conduct would reasonably be regarded by members as disgraceful, dishonourable and unprofessional. The public and the teaching profession do not tolerate the physical, psychological, emotional, and/or sexual abuse of students. Through his conduct, the Member violated the trust that the public places in teachers. When parents send their children to school, they expect that they will be safe. The Member’s breach of this trust was repugnant. He touched Student 1 and Student 2’s buttocks and he referred to them as “babe” and/or “beautiful”. This type of behaviour is completely unacceptable. It is disgraceful, dishonourable and unprofessional.
8) The Member engaged in conduct unbecoming a member, contrary to Ontario Regulation 437/97, subsection 1(19)
The Committee finds that the Member engaged in conduct unbecoming a member of the teaching profession by sexually abusing the Student. Through his egregious conduct, the Member undermined the reputation of the teaching profession and the trust that parents, students and the public place in teachers. It reflects poorly on the profession as a whole when members behave disgracefully, as the Member has.
PENALTY
The Committee will schedule a subsequent date on which to hear submissions with respect to penalty.
Date: April 1, 2019
Vicki Shannon, OCT
Chair, Discipline Panel
Colleen Landers
Member, Discipline Panel
Claudia Patenaude-Daniels, OCT
Member, Discipline Panel
Footnotes
- Reasons for Decision, dated April 5, 2018.
- Ms. Roberts did not testify at the hearing, but the Member tendered two statements she had made (Exhibit 4).
- The majority of the witnesses were in Nunavut, but Ms. Roberts was in Newfoundland.
- Section 40(1.1) was cited in the original Notice of Hearing. However, this provision has been repealed after amendments to the Act came into force on December 5, 2016.
- Allegation withdrawn.
- This particular was withdrawn as discussed below.
- Pursuant to s 63.1(5) of the Act, this section applies to this matter given that no order was made before December 5, 2016.
- See Novick v. Ontario College of Teachers, 2016 ONSC 508 at paragraph 71.