DISCIPLINE COMMITTEE OF THE ONTARIO COLLEGE OF TEACHERS

Citation: Ontario College of Teachers v Oliphant 2019 ONOCT 72

Date: 2019-09-09

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

Raymond William Oliphant, a member of the Ontario College of Teachers.

BETWEEN:

ONTARIO COLLEGE OF TEACHERS

– and –

RAYMOND WILLIAM OLIPHANT (REGISTRATION #432576)

PANEL: John Hamilton, OCT, Chair Sara Nouini, OCT Jonathan Rose

HEARD: August 26, 2019

Jason Bennett, for the Ontario College of Teachers

No one appearing for Raymond William Oliphant

Julie Maciura, 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.

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.

1This matter was heard before a panel of the Discipline Committee (the “Panel”) on August 26, 2019 at the Ontario College of Teachers (the “College”).

2Raymond William Oliphant (the “Member”) did not attend the hearing and did not have legal representation.

3Counsel for the College submitted an Affidavit of Tatiana Tkatch (Exhibit 2) sworn on June 21, 2019, to demonstrate that the Member had been informed of the allegations against him, the time and date of the hearing, as well as the penalty being sought by the College. In this affidavit, Ms. Tkatch, a law clerk with the College, outlines her various means of communications with the Member, including through the services of a process server, Canada Post registered mail and Purolator Courier, and provides proof of service of all required documents.

4According to Ms. Tkatch, the Member was served, at his last known address, with the required documents, including the Notice of Hearing, Fresh as Amended Notice of Hearing, Rules of Procedure of the Discipline and of the Fitness to Practise Committee (the “Rules”), disclosure briefs, draft Agreed Statement Facts and draft Joint Submission on Penalty. Ms. Tkatch also called the Member on his last known telephone number and on a number provided by a skip tracing service but to no avail. College Counsel further submitted that since there was no response by the Member, the matter was set down for a hearing.

5Based on the affidavit of Ms. Tkatch and the submissions of College Counsel, the Panel was satisfied that the Member had been properly served with the required documents and all disclosure documents and was aware of the time and date of the hearing and the penalty sought by the College. The Panel therefore heard this matter in the absence of the Member.

A. THE ALLEGATIONS

6The allegations against the Member in the Fresh as Amended Notice of Hearing dated November 26, 2018 (Exhibit 1) are as follows:

IT IS ALLEGED that Raymond William Oliphant 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 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) 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);

(d) 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);

(e) 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

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

PARTICULARS OF THESE ALLEGATIONS ARE AS FOLLOWS

1. Raymond William Oliphant is a member of the Ontario College of Teachers.

2. At all material times, the Member was employed by the Greater Essex County District School Board.

3. At all material times, Person A, Person B and Person C were female.

4. Between May 15, 2005 and June 21, 2009, the Member:

(a) harassed Person A;

(b) caused Person A to fear for Person A’s personal safety and/or the safety of Person B and/or Person C;

(c) threatened Person A;

(d) intimidated Person A;

(e) stalked Person A.

5. On November 26, 2014, the Member was found guilty of the following charges:

(a) one (1) count of criminal harassment, contrary to section 264(2)(d) of the Criminal Code (Canada);

(b) one (1) count of watching and besetting, contrary to section 423(1)(f) of the Criminal Code (Canada).

6. On May 28, 2015, the Member was sentenced to eighteen (18) months, less five (5) days incarceration, with respect to the offence described in paragraphs 4(a).

7. The Member appealed his conviction and sentence.

8. On December 7, 2017, the appeals were heard by the Court of Appeal (Ontario). The appeal of the conviction was denied and the appeal of the sentence was allowed to the extent of reducing the sentence from 18 months to 12 months in custody. The Member did not seek leave to appeal the Court of Appeal decision to the Supreme Court of Canada within the prescribed timeline.

B. THE MEMBER’S PLEA

7As the Member was not present, the Panel proceeded on the basis that the Member denied the allegations set out in the Fresh as Amended Notice of Hearing.

C. THE EVIDENCE

8College Counsel submitted that the Member was a member of the College at the time of the alleged events as evidenced by the Member’s Public Register information annexed to the Affidavit of Ms. Tkatch (see Exhibit 2, Tab A). College Counsel entered into evidence a Brief of Court Documents - Her Majesty the Queen v. Raymond William Oliphant (Exhibit 3), which contains the following documents:

1. Certified Copy of Indictment;

2. Certified Transcript of Reasons for Judgment, by Justice R. Gates in the Ontario Court of Justice, dated November 26, 2014;

3. Certified Transcript of Reasons For Sentence, by Justice R. Gates in the Ontario Court of Justice, dated May 28, 2015;

4. Certified Copy of the Order on Application for Leave to Appeal and the Appeal of the Court of Appeal for Ontario, dated December 7, 2017

5. Certified Copy of Reasons for Decision of the Court of Appeal for Ontario, dated December 27, 2017.

9The evidence presented in Exhibit 3 establishes that on November 26, 2014, in the Ontario Court of Justice, the Member was found guilty of one count of criminal harassment contrary to section 264(2)(d) of the Criminal Code and one count of watching and besetting, contrary to section 423(1)(f) the Criminal Code. The evidence further establishes that on May 28, 2015, the Member was sentenced to 18 months, less five days incarceration, with respect to those offences. The Member appealed his conviction and sentence on December 7, 2017. The appeal of the conviction was denied and the appeal of the sentence was allowed to the extent of reducing the sentence from 18 months to 12 months in custody.

D. SUBMISSIONS ON FINDING

10College Counsel described the Member’s criminal history in detail and submitted that the Member engaged in a long-term pattern of criminal harassment and intimidation of Person A from June 2005 to May 2009. College Counsel submitted that the Member had, for a period of four years continuously harassed Person A as evidenced, for example, by the more than 100 times he drove by her house. The Member would also deliberately drive by the house slowly at various times of the day and night. Person A also felt that she was being watched and stalked by him.

11College Counsel further submitted information relating to the negative impact which the Member’s conduct had on Persons A, B and C as set out in the court documents. Apart from the emotional distress, Person A sustained a loss of income arising from having to take numerous sick days to deal with the effects of the Member’s conduct.

12According to College Counsel, the Member’s conduct, as detailed in the record of the criminal proceedings (see Exhibit 3) and the resultant criminal convictions, provided a sufficient basis to justify a finding of professional misconduct under the heads of misconduct alleged in the Fresh as Amended Notice of Hearing. The Member had legal representation during his criminal proceedings.

E. DECISION ON FINDING

13Counsel for the College requested that the allegations of professional misconduct outlined in paragraphs (a), (b) and (d) of the Fresh as Amended Notice of Hearing, namely that the Member contravened subsections 1(5), 1(15) and 1(17) of Ontario Regulation 437/97, be withdrawn on the basis that, relating to subsection 1(5) the College did not intend to call evidence with respect to the standards of the profession in this case. With respect to subsection 1(15), the College suggested that this head of misconduct generally, but not always, relates to behaviour as a teacher and in the circumstances the College was not pursuing it here. With respect to subsection 1(17), that head of misconduct is unnecessary because subsection 1(16) was pleaded. The Panel granted these requests.

14Having considered the evidence, onus and standard of proof, and the submissions made by College Counsel, the Panel rendered an oral decision on August 26, 2019, finding that the Member engaged in acts of professional misconduct as alleged, contrary to Ontario Regulation 437/97, subsections 1(16), 1(18) and 1(19).

F. REASONS FOR DECISION

(1) Factual Findings

15In accordance with the law of evidence and Rule 13.03 of the Rules, the Panel accepts the certified copy of the Court Indictment and related documents as proof, in this case, that the Member committed the criminal offences outlined therein. The Member was found guilty of two criminal offences by a Canadian Court. The Member appealed his conviction and sentence. The appeal of his conviction was denied. The appeal of the sentence was allowed to the extent of reducing the sentence from 18 months to 12 months in custody. The Member did not seek leave to appeal the Court of Appeal decision to the Supreme Court of Canada within the prescribed timeline and as such he stands convicted of the offences.

16In addition, pursuant to Rule 13.04 of the Rules, the Panel admits as ancillary to the certified copy of the Court Indictment, the findings of fact contained in the certified Transcript of the Reasons for Judgment and certified Reasons for Sentence before the Ontario Court of Justice involving the Member.

17Based on the evidence contained within the Brief of Court Documents, the College has proven, on a balance of probabilities, that between June 15, 2005 and May 21, 2009, the Member harassed Person A, caused her to fear for her safety and the safety of Persons B and C. The Member threatened Person A, intimidated her and stalked her as described fully in the court documents.

18The Member was subsequently charged with one count of criminal harassment and one count of watching and besetting. He was found guilty of both counts, contrary to sections 264(2)(d) and 423(1)(f) of the Criminal Code (Canada) respectively. He received an 18-month custodial sentence which was subsequently reduced on appeal to 12 months.

(2) Legal Conclusions

19The Panel finds that the Member’s conduct was a clear breach of each of the following heads of professional misconduct set out in the Fresh as Amended Notice of Hearing: subsections 1(16), 1(18) and 1(19) of Ontario Regulation 437/97.

20The Committee finds that the Member’s conduct contravened a law which was relevant to his suitability to hold a certificate of qualification and registration, and that he therefore breached subsection 1(16) of Ontario Regulation 437/97. Harassing and intimidating persons is a criminal offence. Having been found guilty of criminal harassment and watching and besetting, the Member demonstrated that it would be unsuitable for him to hold a teaching certificate, which would allow him to work closely with children.

21The Panel finds that the Member’s acts which included harassing, stalking, and threatening persons, are acts that would reasonably be regarded by members as disgraceful, dishonourable or unprofessional. Members of the teaching profession are expected to serve as positive role models in their communities. Through his criminal conduct, the Member fell short of meeting this expectation. The Member therefore breached subsection 1(18) of Ontario Regulation 437/97.

22Finally, the Panel finds that the Member engaged in conduct unbecoming a member, contrary to subsection 1(19) of Ontario Regulation 437/97. Members of the teaching profession who criminally harass, threaten and stalk persons severely compromise the reputation of the profession, and undermine the trust and confidence that the public places in members of the profession.

G. SUBMISSIONS ON PENALTY

23Counsel for the College submitted that revocation of the Member’s certificate of qualification and registration is an appropriate penalty, considering the gravity of the Member’s misconduct. According to College Counsel, this matter is very serious and demonstrated the conduct of the Member over four years, during which he continuously harassed, intimidated and threatened Person A, and caused Persons A, B and C to fear for their safety, which led to his conviction. Revocation is appropriate in such serious matters as this.

24College Counsel referred the Panel to two cases involving harassment by members of the profession: Ontario College of Teachers v. Canacari, 2017 ONOCT 4 and Ontario College of Teachers v. Sager, 2014 ONOCT 94. College Counsel submitted that these cases were similar to the Member’s case and that a similar penalty was ordered in each instance, which indicates that the penalty sought in this matter is within a reasonable range.

H. PENALTY DECISION

25On August 26, 2019, the Panel made the following order as to penalty:

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

I. REASONS FOR PENALTY

26In arriving at its decision with respect to penalty, the Panel carefully considered the College’s evidence and submissions. The Panel was also mindful of the guiding principles that penalty orders should address, including specific and general deterrence, remediation (in appropriate cases), and public protection. The Member was convicted of serious criminal offences. Over a prolonged period of time, he criminally harassed, stalked and intimidated Person A, causing her to fear for her personal safety and for the safety of Persons B and C. From the evidence contained in Exhibit 3 (see Tab 2, page 69 and Tab 3, page 5), the essential purpose of the Member was to prevent Person A from doing things she had a lawful right to do, namely enjoying the peace and tranquility of her life in safety, away from the Member’s harassing conduct. The Member’s conduct amounted to a virtual campaign of enmity and intimidation which tormented, troubled and worried Person A continually. In cases such as this, the objectives of deterrence and public protection are of primary concern to the Panel. The Panel also recognizes the principle that like cases should be treated alike. The penalty in this case falls within the range of penalties ordered in similar cases before the Discipline Committee, as presented by College Counsel.

27The Panel considered the Member’s circumstances in comparison to the cases provided. The aggravating factors in the Member’s case are the prolonged duration of the Member’s misconduct, by which he was conducting a campaign of enmity toward Person A, and the impact which that had on Persons A, B and C. The negative impact on all three was described fully in the court documents. The Panel did not find any mitigating factors.

28Revocation is not a mandatory penalty in this case but it is the appropriate order given the circumstances. Revocation will denounce the Member’s serious criminal conduct. It will promote general deterrence and send the message that criminal conduct by teachers, whether inside or outside the school context, is wholly unacceptable. Revocation is the only penalty that appropriately responds to professional misconduct of this nature and gravity. The Member’s misconduct undermined the reputation of the teaching profession and will not be tolerated. He has accordingly forfeited the privilege of holding a teaching certificate and being a member of the teaching profession in Ontario.

29The Panel is satisfied that the penalty is appropriate in the circumstances and meets the principle of serving and protecting the public interest.