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
Nicole Elizabeth Drakes, OCT, a member of the Ontario College of Teachers.
BETWEEN:
ONTARIO COLLEGE OF TEACHERS
– and –
NICOLE ELIZABETH DRAKES (REGISTRATION #641071)
PANEL: Irene Dembek, OCT, Chair Godwin Ifedi Tom Potter
HEARD: July 18, 2019
Zirka Jakibchuk, for Ontario College of Teachers
Vanora Simpson of Goldblatt Partners LLP, for Nicole Elizabeth Drakes
Julie Maciura of Steinecke Maciura LeBlanc, Independent Legal Counsel
PUBLICATION BAN: Pursuant to subsection 32.1(3) of the Ontario College of Teachers Act, 1996, no person shall publish the identity of, or any information that could disclose the identity of, any person who is under 18 years old and is a witness in a hearing or is the subject of evidence in a hearing.
This matter came on for hearing before a panel of the Discipline Committee (the “Committee”) on July 18, 2019 at the Ontario College of Teachers (the “College”) at Toronto.
A Notice of Hearing dated March 21, 2019 (Exhibit 1) was served on Nicole Elizabeth Drakes (the “Member”), inviting her to participate in the scheduling of the hearing and specifying the allegations. The hearing was subsequently set for July 18, 2019.
The Member was in attendance for the hearing and had legal representation. The Committee was advised at the outset of the hearing that the parties had entered into an agreement with respect to the hearing.
THE ALLEGATIONS
IT IS ALLEGED that Nicole Elizabeth Drakes is guilty of professional misconduct as defined in the Ontario College of Teachers Act, 1996 (the “Act”) in that:
(a) she failed to maintain the standards of the profession, contrary to Ontario Regulation 437/97, subsection 1(5);
(b) she failed to comply with the Education Act, Revised Statutes of Ontario, 1990, chapter E.2, and specifically subsection 264(1) thereof or the Regulations made under that Act, contrary to Ontario Regulation 437/97, subsection 1(15);
(c) she committed acts that, having regard to all the circumstances, would reasonably be regarded by members as disgraceful, dishonourable or unprofessional, contrary to Ontario Regulation 437/97, subsection 1(18);
(d) she engaged in conduct unbecoming a member, contrary to Ontario Regulation 437/97, subsection 1(19).
AGREED STATEMENT OF FACTS
College Counsel presented the Committee with the parties’ Agreed Statement of Facts and Guilty Plea (Exhibit 2), which provides the following:
Nicole Elizabeth Drakes is a member of the Ontario College of Teachers. Attached hereto and marked as Appendix “A” is a copy of the Ontario College of Teachers Registered Member Information with respect to the Member.
At all material times, the Member was employed by the Peel District School Board (the “Board”) and was an Occasional teacher in a [XXX] classroom at [XXX] School (the “School”) in Brampton, Ontario.
During the 2017-2018 academic year, Student 1 was a [XXX]-year-old male [XXX] student at the School.
In or around June 2018, the Member posted on social media a photograph of the back of Student 1’s head, adjacent to an image of a character played by actor Damon Wayans in the film “Don’t Be a Menace to South Central While Drinking Your Juice in the Hood”, with the caption - “Who rocked it better?? LOLOLOL”. Wayans portrayed a gangster in this film. Student 1’s face was not visible in the photograph.
The Member took the photograph of Student 1 at the School and posted the photograph, along with the name of the School, to her Instagram account.
The Board characterized the Member’s post as “offensive and racist”.
When the Member realized that she had made a mistake and that her post could be perceived as racially insensitive (despite the fact that this was never the intention), she immediately took it down. She also resigned from her employment with the Board effective August 31, 2018.
The Member acknowledges that she made a gross error in judgment and regrets her actions profoundly.
The Ontario College of Teachers published an updated professional advisory on the Use of Electronic Communication and Social Media on September 27, 2017. Attached hereto and marked as Appendix “B” is a copy of this advisory.
GUILTY PLEA
By this document,1 the Member admits the truth of the facts and appendices referred to in paragraphs 1-9 above (the “Admitted Facts”).
The Member hereby acknowledges that the Admitted Facts constitute conduct that is professional misconduct and pleads guilty to the allegations of professional misconduct against her, being more particularly breaches of Ontario Regulation 437/97 subsections 1(5), 1(15), 1(18) and 1(19).
By signing this document the Member states that:
(a) she understands fully the nature of the allegations against her;
(b) she understands that by signing this document she is consenting to the evidence as set out in the Admitted Facts being presented to the Discipline Committee;
(c) she understands that she is pleading guilty to the allegations, and is waiving the right to require the College to prove the case against her and the right to have a hearing;
(d) she 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 her name, shall be published in the official publication of the College;
(e) she understands that any agreement between her counsel and the College with respect to the penalty does not bind the Discipline Committee; and
(f) she understands and acknowledges that she is executing this agreement voluntarily, unequivocally, and with the advice of legal counsel.
- In light of the Admitted Facts and circumstances and the plea of guilt, the College and the Member submit that the Discipline Committee find the Member guilty of professional misconduct.
DECISION
Having considered the Agreed Statement of Facts and Guilty Plea and the submissions of the parties, the Committee rendered an oral decision on July 18, 2019 finding that the Member engaged in acts of professional misconduct as alleged, contrary to Ontario Regulation 437/97, subsections 1(5), 1(15), 1(18) and 1(19).
REASONS FOR DECISION
The Member admitted the truth of the facts and exhibits referred to in paragraphs 1 to 9 of the Agreed Statement of Facts and Guilty Plea and admitted the allegations of professional misconduct against her. She acknowledged and the Committee accepts that the Admitted Facts constitute conduct which is professional misconduct, contrary to Ontario Regulation 437/97, subsections 1(5), 1(15), 1(18) and 1(19).
Paragraphs 3, 4, 5 and 9 of the Agreed Statement of Facts and Guilty Plea demonstrate that the Member failed to maintain the standards of the profession, contrary to Ontario Regulation 437/97, subsection 1(5).
Paragraphs 3, 4, 5 and 9 of the Agreed Statement of Facts and Guilty Plea demonstrate that the Member failed to comply with the Education Act, Revised Statues of Ontario, 1990, chapter E.2, and specifically subsection 264(1)(c) thereof or the regulations made under that Act, contrary to Ontario Regulation 437/97, subsection 1(15).
Paragraphs 3, 4, 5 and 9 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 3, 4, 5 and 9 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 that the Member appear before the Committee immediately following the hearing of this matter to receive a reprimand which will be delivered in person at the offices of the Ontario College of Teachers, 101 Bloor Street W., Toronto, Ontario, and that the fact of the reprimand be recorded on the Register of the Ontario College of Teachers (the “Register”);
direct the Registrar to impose the following terms, conditions or limitations on the Member's Certificate of Qualification and Registration, the fact of such terms, conditions or limitations to be recorded on the Register until such time as they are fulfilled:
(a) within 90 days of the date of the Decision, Reasons for Decision and Order of the Discipline Committee, the Member shall enrol in and successfully complete at her own expense, a course(s) of instruction on professional boundaries/boundary violations (including student privacy) and cultural sensitivity. The course(s) shall be pre-approved by the Registrar and be subject to the following conditions:
(i) the Member will provide to a course practitioner(s) approved by the Registrar a copy of the Agreed Statement of Facts and Guilty Plea and Joint Submission on Penalty documents made exhibits at the hearing of this matter, and the Decision, Reasons for Decision and Order of the Discipline Committee; and
(ii) upon review of the documents noted at paragraph (i) above, the course practitioner(s) will provide to the Registrar, for approval, a syllabus for the proposed course(s) which specifically addresses the Discipline Committee's concerns regarding the Member's professional misconduct. The syllabus proposed by the course practitioner(s) shall also specify the length of the course(s) to be undertaken by the Member, and the assignments to be completed by the Member; and
(b) within 30 days of her completion of the course(s) outlined in (a) above, the Member shall provide to the Registrar a written certificate from the course practitioner(s) stating that the Member has successfully completed the course(s) and reporting on the progress of the Member with respect to addressing the outlined goals of the course(s).
PENALTY DECISION
In an oral decision rendered on July 18, 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 misconduct committed by the Member and is reasonable given the circumstances of this case. The parties submitted that the penalty proposed is also within a reasonable range, based on the following analogous cases: Ontario College of Teachers v. Kalarus, 2017 ONOCT 17, Ontario College of Teachers v. Gordon, 2015 ONOCT 31, and Ontario College of Teachers v. Vaillancourt, 2014 ONOCT 107.
College Counsel cited the following mitigating factors in support of the Joint Submission on Penalty. The misconduct occurred as a single incident. The Member has no history of discipline with either the Board or the College. The student’s face was not visible in the picture posted. There was no evidence the Member intended the post to be racially insensitive. The Member demonstrated awareness that she made a mistake and removed the post immediately. The Member resigned from her Board and she has cooperated with the College to come to an agreement in this matter.
In addition to College Counsel’s submissions, the Member’s Counsel cited the following mitigating factors. By entering into an agreement with the College, the Member made it unnecessary for the student or parent(s) or guardian(s) to testify. In addition, the Member is a young teacher, certified to teach in 2013, who has demonstrated remorse and who has already paid a very serious penalty for her misconduct.
The Committee finds that the Member’s conduct warrants a reprimand by her peers. Taking and posting a photograph of a student was a violation of the student’s privacy. Furthermore, the Board characterized the comparison of the student’s image with a fictional gangster as both “offensive and racist”. The reprimand will allow the Committee to address directly its concerns with the Member and will serve as a specific deterrent. Recording the fact of the reprimand on the Register will serve as a general deterrent to other members of the profession.
The Committee finds that the course(s) of instruction regarding professional boundaries/boundary violations (including student privacy) and cultural sensitivity will assist in the rehabilitation of the Member. The coursework will remind the Member of her obligations as a teacher and will help her to make better decisions in any future interactions with students.
The Committee is satisfied that the penalty is appropriate in the circumstances and meets the principle of serving and protecting the public interest.
Date: July 18, 2019
Irene Dembek, OCT
Chair, Discipline Panel
Godwin Ifedi
Member, Discipline Panel
Tom Potter
Member, Discipline Panel