DISCIPLINE COMMITTEE OF THE ONTARIO COLLEGE OF TEACHERS

Citation: Ontario College of Teachers v Cassidy 2019 ONOCT 08

Date: 2019-02-15

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

Gene Allan Cassidy, a member of the Ontario College of Teachers.

BETWEEN:

ONTARIO COLLEGE OF TEACHERS

– and –

GENE ALLAN CASSIDY (REGISTRATION #168330)

PANEL: Stéphane Vallée, OCT, Chair

Jean-Luc Bernard, OCT

Sara Nouini, OCT

HEARD: February 8, 2019

Ava Arbuck of McCarthy Tétrault LLP, for Ontario College of Teachers, assisted by Amy Leung, Law Clerk

Gene Allan Cassidy, self-represented

Erica Richler of Steinecke Maciura LeBlanc, Independent Legal Counsel

PUBLICATION BAN: Pursuant to subsection 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 identify of, or any information that could disclose the identity of, the person who was allegedly sexually abused or the subject of the sexual misconduct or prohibited act involving child pornography.

By order of Justice C.J. Conlan 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 February 8, 2019 at the Ontario College of Teachers (the “College”) at Toronto.

A Notice of Hearing dated December 18, 2018 (Exhibit 1) was served on Gene Allan Cassidy (the “Member”), inviting him to participate in the scheduling of the hearing and specifying the allegations. The hearing was subsequently set for February 8, 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 Notice of Hearing are as follows:

IT IS ALLEGED that the Member 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);¹

b. he abused a student psychologically or emotionally, contrary to Ontario Regulation 437/97, subsection 1(7.2);

c. 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;

d. he failed to comply with the Act or the regulations or the by-laws, contrary to Ontario Regulation 437/97, subsection 1(14);

e. 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);

f. 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);

g. 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);

h. 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

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

AGREED STATEMENT OF FACTS

College Counsel presented the Committee with the parties’ Agreed Statement of Facts and Guilty Plea (Exhibit 2), which provides the following:

Gene Allan Cassidy is a retired member of the Ontario College of Teachers. Attached hereto and marked as Exhibit “A” is a copy of the Ontario College of Teachers Registered Member Information with respect to the Member.
At all material times, the Member was employed by the Bluewater District School Board (the “Board”). He taught at [XXX](the “School”) from September 1, 1990 to June 30, 2009, at which time he became an [XXX] teacher for the Board.
At all material times between September 2007 and June 2012, the Student was a female student at the School. During the 2008-2009 school year, the Member was the Student’s Grade [XXX] [XXX] teacher.
At all material times, the Member was a respected [XXX] coach who coached a [XXX] team in the community, including a [XXX]team, unrelated to the School. In January 2010 when the Student was in Grade [XXX], the Student was a player on the [XXX] team coached by the Member.
Between January 2010 and June 2012, the Member engaged in a personal and sexual relationship with the Student that included sexual touching of the Student.
On April 29, 2016, in the Superior Court of Justice, the Member was convicted of sexual exploitation, contrary to section 153(1)(a) of the Criminal Code. Attached hereto and marked as Exhibit “B” is a certified copy of the Indictment. Attached hereto and marked as Exhibit “C” is a copy of the Plea Proceedings dated April 29, 2016.
On June 10, 2016, the Member was sentenced to eight months of imprisonment and two years of probation, including various ancillary orders. Attached hereto and marked as Exhibit “D” is a copy of the Reasons for Sentence dated June 10, 2016.

GUILTY PLEA

By this document,² the Member admits the truth of the facts and exhibits referred to in the paragraphs above (the “Admitted Facts”).
The Member hereby acknowledges that the Admitted Facts constitute conduct which is professional misconduct and pleads guilty to the allegations of professional misconduct against him, being more particularly breaches of Ontario Regulation 437/97 subsections 1(7.2), 1(7.3), 1(14), 1(15), 1(16), 1(17), 1(18), and 1(19).
By this document the Member states that:

(a) he understands fully the nature of the allegations against him;

(b) he understands that by signing this document he is consenting to the evidence as set out in the Admitted Facts being presented to the Discipline Committee;

(c) he understands that by pleading guilty to the allegations, he is waiving the right to require the College to otherwise prove the case against him and the right to have a hearing;

(d) he understands that the Discipline Committee’s decision and reasons shall be published on the College’s website, and that a summary of the Discipline Committee’s decision and reasons, including his name, shall be published in the official publication of the College;

(e) he understands that any agreement between him and counsel for the College with respect to the penalty proposed does not bind the Discipline Committee;

(f) he understands and acknowledges that he is executing the Agreed Statement of Facts and Guilty Plea voluntarily, unequivocally, and without 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

Counsel for the College requested that the allegation of professional misconduct outlined in paragraph (a) of the Notice of Hearing, namely that the Member contravened subsection 1(5) of Ontario Regulation 437/97, be withdrawn. The Committee granted this request.

Having considered the Agreed Statement of Facts and Guilty Plea and the submissions of College Counsel, the Committee rendered an oral decision on February 8, 2019 finding that the Member engaged in acts of professional misconduct as alleged, contrary to Ontario Regulation 437/97, subsections 1(7.2), 1(7.3), 1(14), 1(15), 1(16), 1(17), 1(18) and 1(19). The Member also engaged in sexual abuse of a student of a nature 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 7 of the Agreed Statement of Facts and Guilty Plea and admitted the allegations of professional misconduct against him. He acknowledged and the Committee accepts that the Admitted Facts constitute conduct which is professional misconduct, contrary to Ontario Regulation 437/97, subsections 1(7.2), 1(7.3), 1(14), 1(15), 1(16), 1(17), 1(18) and 1(19).

Paragraphs 5 and 6 of the Agreed Statement of Facts and Guilty Plea, as well as the court transcripts filed with the Agreed Statement of Facts, demonstrate that the Member abused a student psychologically or emotionally, contrary to Ontario Regulation 437/97, subsection 1(7.2). The court transcripts included a victim impact statement of the student, which demonstrated the emotional and psychological harm she has endured as a result of the abuse.

Paragraphs 5 and 6 of the Agreed Statement of Facts and Guilty Plea, as well as the court transcripts filed with the Agreed Statement of Facts, demonstrate that the Member abused a student sexually, contrary to Ontario Regulation 437/97, subsection 1(7.3). In particular, the court transcripts demonstrate that the sexual abuse included touching of a sexual nature of the student’s genitals, as well as sexual intercourse after the student turned 18.

Paragraphs 5 and 6 of the Agreed Statement of Facts and Guilty Plea demonstrate that the Member failed to comply with section 32.02 of the Bylaws of the Ontario College of Teachers (the ethical standards for the teaching profession), contrary to Ontario Regulation 437/97, subsection 1(14). Sexual abuse is a clear breach of the ethical standards of care, respect, trust and integrity.

Paragraphs 5 and 6 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) thereof or the Regulations made under the Act, contrary to Ontario Regulation 437/97, subsection 1(15).

Paragraphs 5 and 6 of the Agreed Statement of Facts and Guilty Plea demonstrate that the Member contravened a law, the contravention of which is relevant to the member’s suitability to hold a certificate of qualification and registration, contrary to Ontario Regulation 437/97, subsection 1(16).

Paragraphs 5 and 6 of the Agreed Statement of Facts and Guilty Plea demonstrate that the Member contravened a law, the contravention of which 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).

Paragraphs 5, 6 and 7 of the Agreed Statement of Facts and Guilty Plea demonstrate that the Member committed acts that, having regard to all the circumstances, would reasonably be regarded by members as disgraceful, dishonourable or unprofessional, contrary to Ontario Regulation 437/97, subsection 1(18).

Paragraphs 5, 6 and 7 of the Agreed Statement of Facts and Guilty Plea demonstrate that the Member engaged in conduct unbecoming a member, contrary to Ontario Regulation 437/97, subsection 1(19).

JOINT SUBMISSION ON PENALTY

Through a Joint Submission on Penalty (Exhibit 3), the parties jointly submitted that the appropriate penalty to be imposed in this matter would be that the Committee:

direct the Registrar of the Ontario College of Teachers to immediately revoke the Certificate of Qualification and Registration of the Member, which Certificate the Member is to immediately surrender to the Registrar; and
direct that the Member receive a written reprimand, and the fact of the reprimand is to be recorded on the Register of the Ontario College of Teachers (the “Register”).

PENALTY DECISION

In an oral decision rendered on February 8, 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 Member’s misconduct included the sexual abuse of a student and it involved acts listed in subsections 30.2(2)1.(i) and 30.2(2)1.(vi) of the Act. In accordance with subsection 30.2(1)(c)(ii) of the Act, revocation is mandatory for this type of sexual abuse and the Committee made an order directing the Registrar to revoke the Member’s Certificate of Qualification and Registration. The Committee is also required to make, and has therefore made, an order requiring that the Member be reprimanded by the Committee. The Committee notes that it has no discretion in this regard. The Committee denounces the Member’s egregious misconduct in the strongest terms.

With respect to the form of the reprimand, the Committee accepts the parties’ request that the reprimand be delivered in writing, as per the parties’ Joint Submission on Penalty, and based on the analogous case presented by College Counsel: Ontario College of Teachers v. Pilon, 2018 ONOCT 58.

The Committee also recognizes that the Member participated and cooperated in the discipline process leading up to the hearing, which conserved the judicial resources that would otherwise have been necessary to conduct a contested hearing.

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

Date: February 15, 2019

Stéphane Vallée, OCT

Chair, Discipline Panel