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
Jamie Clark Gerald Gardiner, a member of the Ontario College of Teachers.
BETWEEN:
ONTARIO COLLEGE OF TEACHERS
– and –
JAMIE CLARK GERALD GARDINER (REGISTRATION #471222)
PANEL: Irene Dembek, OCT, Chair Godwin Ifedi Tom Potter
HEARD: July 18, 2019
Zirka Jakibchuk, for Ontario College of Teachers
No one appearing for Jamie Clark Gerald Gardiner
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.
By order of Justice Marc A. Garson of the Superior Court of Justice, there is also a publication ban on any information that could identify the victim or a witness in this matter, pursuant to subsection 486.4 of the Criminal Code of Canada.
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 August 20, 2018 and a subsequent Amended Notice of Hearing dated May 6, 2019 (Exhibit 1) were served on Jamie Clark Gerald Gardiner (the “Member”), inviting him to participate in the scheduling of the hearing and specifying the allegations. The hearing was subsequently set for July 18, 2019.
The Member was not in attendance for the hearing and did not have 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
The allegations against the Member in the Amended Notice of Hearing are as follows:
IT IS ALLEGED that Jamie Clark Gerald Gardiner is guilty of professional misconduct as defined in the Ontario College of Teachers Act, 1996 (the “Act”) in that:
(a) he failed to maintain the standards of the profession, contrary to Ontario Regulation 437/97, subsection 1(5);
(b) he abused a student or students psychologically or emotionally, contrary to Ontario Regulation 437/97, subsection 1(7.2);
(c) he abused a student or students 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;
(d) 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);
(e) 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);
(f) he contravened a law, the contravention of which has caused or may cause a student who is under the member’s professional supervision to be put at or to remain at risk, contrary to Ontario Regulation 437/97, subsection 1(17);
(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 engaged in a prohibited act involving child pornography as defined in section 1 of the Act.
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:
Jamie Clark Gerald Gardiner 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 Thames Valley District School Board as a teacher at [XXX] School (the “School”) in London, Ontario.
Between January 1, 2011 and March 11, 2015, the Member surreptitiously video-recorded 20 female staff members and [XXX] students assigned to the School, in various states of undress, in a staff change room and washroom at the School. One of the [XXX] students recorded was a [XXX] student assigned to the Member’s class, who was under 18 years of age.
The majority of the recordings were made in the staff change room. The Member made the recordings by placing a backpack with a concealed camera on the floor of the change room, so as to capture the genital or buttock area of the victims. Some of the recordings were also made in a staff washroom.
The recordings were made for a sexual purpose, without the consent of the victims.
After the Member was arrested on or about March 11, 2015, he was found to have in his possession 29 such video-recordings, depicting the genital organs, anal region and/or breasts of the victims.
On or about April 17, 2015, the Member was charged with:
(a) 18 counts of voyeurism, contrary to sections 162(1)(a) and (b) of the Criminal Code (Canada);
(b) one count of making child pornography, contrary to section 163.1(2) of the Criminal Code (Canada); and
(c) one count of possessing child pornography, contrary to section 163.1(4) of the Criminal Code (Canada).
On or about April 29, 2015, the Board terminated the Member’s employment for cause.
On May 8, 2017, the Member plead guilty to 16 counts of voyeurism, contrary to section 162(1)(b) of the Criminal Code (Canada). The remaining counts of voyeurism were withdrawn.
On June 16, 2017, the Member was found guilty of making and possessing child pornography, contrary to sections 163.1(2) and 163.1(4) of the Criminal Code (Canada) respectively. The charge of possessing child pornography and one count of voyeurism were conditionally stayed.
On October 16, 2017, the Member was sentenced to one year in custody for making child pornography, nine months in custody (concurrent) for voyeurism, and two years’ probation. The Member was also made the subject of a number of ancillary orders.
The Member did not appeal his conviction and/or sentence.
Attached hereto and marked as Appendix “B” are certified copies of the Court Information dated April 17, 2015 and Appearances.
Attached hereto and marked as Appendix “C” are certified copies of the Indictment dated October 7, 2016 and Dispositions.
Attached hereto and marked as Appendix “D” is a certified copy of the Probation Order dated October 16, 2017.
Attached hereto and marked as Appendix “E” is a certified copy of the transcript of the Proceedings at Trial before the Honourable Justice M. Garson on May 8, 2017.
Attached hereto and marked as Appendix “F” is a certified copy of the transcript of the Excerpt of Proceedings before the Honourable Justice M. Garson on June 16, 2017.
Attached hereto and marked as Appendix “G” is a certified copy of the transcript of the Excerpt of Proceedings before the Honourable Justice M. Garson on August 14, 2017.
Attached hereto and marked as Appendix “H” is a certified copy of the transcript of the Excerpt of Proceedings before the Honourable Justice M. Garson on October 16, 2017.
GUILTY PLEA
By this document,1 the Member admits the truth of the facts and exhibits referred to in paragraphs 1-19 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 Ontario Regulation 437/97 subsections 1(5), 1(7.2), 1(7.3), 1(15), 1(16), 1(17), 1(18), and 1(19). The Member also acknowledges that he engaged in sexual abuse of a student or students and/or sexual misconduct, as defined in section 1 of the Act, as well as a prohibited act involving child pornography as defined in section 1 of the Act.
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 prove the case against him and the right to have a hearing;
(d) he understands that the Discipline Committee’s decision and reasons shall be published on the College’s website, and that a summary of the Discipline Committee’s decision and reasons, including his name, shall be published in the official publication of the College;
(e) he understands that any agreement between him and counsel for the College with respect to the penalty proposed in this document does not bind the Discipline Committee;
(f) he understands and acknowledges that he is executing this Agreement voluntarily, unequivocally, and with the advice of legal counsel or with the opportunity to have obtained the 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
Having considered the Agreed Statement of Facts and Guilty Plea and the submissions of College Counsel, 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(7.2), 1(7.3), 1(15), 1(16), 1(17), 1(18), and 1(19). The Member also engaged in sexual abuse of a student and/or sexual misconduct, as defined in section 1 of the Act, as well as a prohibited act involving child pornography as defined in section 1 of the Act.
REASONS FOR DECISION
The Member admitted the truth of the facts and exhibits referred to in paragraphs 1 to 19 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 Ontario Regulation 437/97, subsections 1(5), 1(7.2), 1(7.3), 1(15), 1(16), 1(17), 1(18), and 1(19). He further acknowledged and the Committee accepts that he engaged in sexual abuse of a student and/or sexual misconduct, as defined in section 1 of the Act, as well as a prohibited act involving child pornography as defined in section 1 of the Act.
Paragraphs 3 to 7 and 9 to 19 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). Counsel for the College submitted that the Member videotaped 20 female staff members and [XXX] students without their consent and for a sexual purpose. Surreptitiously videotaping the genital organs, anal region and/or breasts of students and staff is a clear breach of their right to privacy and dignity. The fact that such conduct resulted in criminal convictions for the Member shows society’s reprobation of this despicable behaviour. It is self evident that these acts fell far below the standards expected of teachers.
Paragraphs 3 to 7 and 9 to 19 of the Agreed Statement of Facts and Guilty Plea demonstrate that the Member abused a student psychologically or emotionally, contrary to Ontario Regulation 437/97, subsection 1(7.2). The infringement of the [XXX] students’ privacy and dignity was clearly psychological and emotional abuse.
Paragraphs 3 to 7 and 9 to 19 of the Agreed Statement of Facts and Guilty Plea demonstrate that the Member abused a student sexually, contrary to Ontario Regulation 437/97, subsection 1(7.3), and engaged in sexual abuse of a student and/or sexual misconduct, as defined in section 1 of the Act. The surreptitious images taken of the [XXX] students’ bodies were of a sexual nature that constitutes sexual abuse.
Paragraphs 3 to 7 and 10 to 19 of the Agreed Statement of Facts and Guilty Plea demonstrate that the Member engaged in a prohibited act involving child pornography as defined in section 1 of the Act. One of the Member’s victims was a [XXX] student assigned to his class who was less than 18 years old.
Paragraphs 3 to 7 and 9 to 19 of the Agreed Statement of Facts and Guilty Plea demonstrate that the Member failed to comply with the Education Act, Revised Statutes 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 6 and 9 to 11 of the Agreed Statement of Facts and Guilty Plea demonstrate that the Member contravened a law where the contravention is relevant to the Member’s suitability to hold a Certificate of Qualification and Registration, contrary to Ontario Regulation 437/97, subsection 1(16). The criminal convictions for voyeurism and the making of child pornography contrary to the Criminal Code are incompatible with the qualities required to hold a Certificate of Qualification and Registration.
Paragraphs 6 and 9 to 11 of the Agreed Statement of Facts and Guilty Plea demonstrate that the Member contravened a law where the contravention has caused or may cause a student under the Member’s professional supervision to be put at or to remain at risk, contrary to Ontario Regulation 437/97, subsection 1(17). The Member was found guilty of making and possessing child pornography, contrary to sections 163.1(2) and 163.1(4) of the Criminal Code, in respect of a [XXX] student assigned to his class who was less than 18 years old.
Paragraphs 3 to 7 and 9 to 19 of the Agreed Statement of Facts and Guilty Plea demonstrate that the Member committed acts that would reasonably be regarded by members as disgraceful, dishonourable or unprofessional, contrary to Ontario Regulation 437/97, subsection 1(18). The Member repeatedly violated the privacy, dignity and trust of both students and staff over an extended period of time. The profound consequences for staff and students were revealed in the victim impact statements and the Judge’s comments in the criminal proceedings. The Honourable Mr. Justice M. Garson noted at the October 16, 2017 proceeding: “Violation of trust has impacted their personal and professional lives, as well as affected their physical health and significantly altered the lives they previously enjoyed.”
Paragraphs 3 to 7 and 9 to 19 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). The Member repeatedly violated the privacy, dignity and trust of both students and staff with devastating impact over an extended period of time. He caused irrevocable harm to the psychological and emotional wellbeing of the affected students and staff. His irresponsible actions have eroded public confidence in teachers and the teaching profession.
JOINT SUBMISSION ON PENALTY
Through a Joint Submission on Penalty (Exhibit 3), the parties jointly submitted that the appropriate penalty to be imposed in this matter would be that the Committee:
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”); and
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.
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 Member’s misconduct included the sexual abuse of a student and a prohibited act involving child pornography as listed at subsection 30.2(2) of the Act. In accordance with subsection 30.2(1) of the Act, the Committee is required to, and has therefore, made an order: 1. requiring that the Member be reprimanded by the Committee and 2. directing the Registrar to revoke the Member’s Certificate of Qualification and Registration. The Committee notes that it has no discretion in this regard. The Member’s misconduct demonstrated a profound lack of judgment, violated any sense of public decency, and constituted a severe breach of public trust. His flagrant abuse of the trust that students, parents and colleagues place in teachers, disqualifies him from holding a Certificate with the College. The Committee denounces the Member’s egregious conduct in the strongest terms.
Date: July 18, 2019
______________________________
Irene Dembek, OCT
Chair, Discipline Panel
______________________________
Godwin Ifedi
Member, Discipline Panel
______________________________
Tom Potter
Member, Discipline Panel