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
Robert Earl Clarke, a member of the Ontario College of Teachers.
BETWEEN:
ONTARIO COLLEGE OF TEACHERS
– and –
ROBERT EARL CLARKE (REGISTRATION #307259)
PANEL: Diane Ballantyne, OCT, Chair Tom Potter Stéphane Vallée, OCT
HEARD: October 21, 2019
Jason Bennett, for the Ontario College of Teachers Ernest G. Tannis for Robert Earl Clarke 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.
By order of Justice M. Dumel of the Ontario 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.
By order of a panel of the Discipline Committee on October 21, 2019, there is a further publication ban on any student names contained in Exhibit 2.
1This matter was heard before a panel of the Discipline Committee (the “Panel”) on October 21, 2019 at the Ontario College of Teachers (the “College”).
2Robert Earl Clarke (the “Member”) did not attend the hearing but had legal representation. The Panel was advised at the outset of the hearing that the parties had entered into an agreement with respect to the hearing.
A. PUBLICATION ban
3The Panel ordered a publication ban pursuant to subsection 32.1(3) of the Ontario College of Teachers Act, 1996 (the “Act”), which makes such an order mandatory. 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.
4Additionally, the Panel received a certified copy of the Proceedings at Guilty Plea from the Member’s criminal proceeding before Justice M. Dumel, dated March 21, 2018 and March 1, 2019 (Exhibit 2 at Tab C and Tab D, respectively). In these proceedings before the Ontario Court of Justice, an order restricting publication was made pursuant to section 486.4 of the Criminal Code of Canada. The Panel is required to uphold this publication ban. Accordingly, any information that could identify the victim or a witness involved in this matter shall not be published in any document or broadcast or transmitted in any way.
5On the request of College Counsel, the Panel also made an order on October 21, 2019 restricting the publication of any student names contained in Exhibit 2.
B. THE ALLEGATIONS
6The allegations against the Member in the Notice of Hearing dated August 27, 2019 (Exhibit 1) are as follows:
IT IS ALLEGED that the Member is guilty of professional misconduct as defined in the Act in that he:
(a) failed to strive at all times to achieve and maintain the highest degree of professional competence and to uphold the honour, dignity, and ethical standards of the teaching profession, contrary to section 13 (General Duties of Members) of Ontario Regulation 63/55 made pursuant to section 12 of the Teaching Profession Act, R.S.O. 1970, c. 456, both as amended (the “TPA Regulation”);
(b) failed to show consistent justice and consideration in all his relations with pupils, contrary to section 14(d) of the TPA Regulation;
(c) failed to concern himself with the welfare of pupils while they were under his care, contrary to subsection 14(f) of the TPA Regulation;
(d) failed to comply with subsection 229(1)(c) (Duties of a Teacher) of the Education Act, 1974, S.O. 1974, c. 109, as amended;
(e) engaged in sexual abuse of a student, as defined in section 1 of the Act;1
(f) 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) 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)
C. AGREED STATEMENT OF FACTS
7College Counsel presented the Panel with the parties’ Agreed Statement of Facts and Guilty Plea (Exhibit 2), which provides the following:
Robert Earl Clarke (the “Member”) is a member of the Ontario College of Teachers (the “College”). Attached hereto and marked as Appendix “A” is a copy of the Member’s Registered Member Information summary from the College’s public register.
The Member was first certified as a teacher in January 1967 and became a member of College in May 1998 [sic]. At all material times, the Member held an Ontario Teacher’s Certificate or a Certificate of Qualification and Registration issued by the College.
On March 27, 2017, the Member’s membership status with the College was changed to “Cancelled – Resigned”.
Between September 1, 1972 and November 3, 1992, the Member was employed by the Ottawa-Carleton District School Board (the “Board”), and/or its predecessor boards, as a [XXX] teacher at [XXX] School and [XXX] School (the “Schools”) in Ottawa, Ontario.
The Member resigned from the Board on November 3, 1992.
At all material times, Student 1, Student 2, Student 3, Student 4, Student 5 and Student 6 were male students at the Schools and [XXX] and/or [XXX] students of the Member, and Student 7 was a student at one of the Schools, but not a student of the Member (the "Students").
At all material times, Person A was a male minor who lived with his parents [XXX] the Member's residence and was therefore the Member's [XXX] until approximately 1979.
Between September 1973 and June 1991, the Member engaged in sexual touching of, and/or engaged in behaviour or made remarks of a sexual nature towards, the Students and Person A.
On June 27, 2016, the Ottawa Police Service charged the Member with one count of sexual assault of one of the Students, contrary to section 271(1) of the Criminal Code (Canada). The Police also appealed to the public for other victims to come forward.
By December 16, 2016, the Member had been charged with a total of seven counts of gross indecency, contrary to section 157 of the Criminal Code (Canada); three counts of sexual assault, contrary to section 271(1) of the Criminal Code (Canada); and one count of sexual exploitation of a young person, contrary to section 153(1)(a) of the Criminal Code (Canada) in connection with the conduct described in paragraph 8 above. Attached hereto and marked as Appendix “B” is a copy of the Information of Peace Officer Lorraine Wilson of the Ottawa Police Service sworn December 16, 2016.
On March 21, 2018, the Member pleaded guilty to, and was found guilty of, seven counts of gross indecency and one count of sexual assault involving the Students and Person A. Attached hereto and marked as Appendix “C” is a certified copy of a transcript of Proceedings at Guilty Plea before the Honourable Justice M. Dumel in Ottawa, Ontario on March 21, 2018. The facts giving rise to the Member’s guilty plea are set out in the transcript.
On March 21, 2018, the Member was sentenced to a two-year custodial sentence, to be followed by three years of probation upon his release. The Member was also made subject to a number of ancillary orders.
The Member did not appeal his March 21, 2018 conviction or sentence.
On October 22, 2018, the Member was charged with another count of gross indecency, contrary to section 157 of the Criminal Code (Canada), in connection with conduct involving another former student of the Schools ("Student 8") that took place between September 1, 1978 and June 30, 1982. Attached hereto and marked as Appendix “D” is a copy of the Information of Peace Officer Gaston Lagrandeur of the Ottawa Police Service sworn October 22, 2018.
On December 17, 2018, the Member was charged with another count of gross indecency, contrary to section 157 of the Criminal Code (Canada), and one count of indecent assault, contrary to section 156 of the Criminal Code (Canada), in connection with conduct involving another former student of the Schools, and a former student of the Member ("Student 9"), that took place on March 19, 1979. Attached hereto and marked as Appendix “E” is a copy of the Information of Peace Officer Gaston Lagrandeur of the Ottawa Police Service sworn December 17, 2018.
On March 1, 2019, the Member pleaded guilty to, and was found guilty of, one count of gross indecency involving Student 8 and one count of gross indecency involving Student 9. Attached hereto and marked as Appendix “F” is a certified copy of a transcript of Proceedings at Guilty Plea before the Honourable Justice M. Dumel in Ottawa, Ontario on March 1, 2019. The facts giving rise to the Member’s guilty plea are set out in the transcript.
On March 1, 2019, the Member was sentenced to a 15-month custodial sentence to be served concurrently with the Member's two-year custodial sentence imposed on March 21, 2018. The Member was also made subject to a number of ancillary orders.
The Member did not appeal his March 1, 2019 conviction or sentence
GUILTY PLEA
By this document, the Member admits the truth of the facts and appendices referred to in paragraphs 1-18 above (the “Admitted Facts”).
The Member hereby acknowledges that paragraphs 8-12 and 14-17 of the Admitted Facts constitute conduct that is professional misconduct and pleads guilty to the allegations of professional misconduct against him, being more particularly:
(a) breaches of section 13 of Ontario Regulation 63/55 made under section 12 of the Teaching Profession Act, R.S.O. 1970, c. 456, both as amended (the “TPA Regulation”), namely that the Member failed to strive at all times to achieve and maintain the highest degree of professional competence and to uphold the honour, dignity, and ethical standards of the teaching profession;
(b) breaches of subsection 14(d) of the TPA Regulation, namely that the Member failed to show consistent justice and consideration in all his relations with pupils;
(c) breaches of subsection 14(f) of the TPA Regulation, namely that the Member failed to concern himself with the welfare of pupils while they were under his care;
(d) breaches of subsection 229(1)(c) (Duties of a Teacher) of the Education Act, 1974, S.O. 1974, c. 109, as amended, namely that the Member failed to inculcate by precept and example respect for religion and the principles of Judaeo-Christian morality and the highest regard for truth, justice, loyalty, love of country, humanity, benevolence, sobriety, industry, frugality, purity, temperance and all other virtues;
(e) that the Member engaged in sexual abuse of a student or students as defined in section 1 of the Act;
(f) breaches of subsection 1(16) of Ontario Regulation 437/97 made under section 40(1) of the Act (the “Professional Misconduct Regulation”), namely that the Member contravened a law, the contravention of which is relevant to his suitability to hold a certificate of qualification and registration; and
(g) breaches of subsection 1(17) of the Professional Misconduct Regulation, namely that the Member 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.
- By signing 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 he is pleading guilty to the allegations, and 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 his counsel and the College with respect to the penalty does not bind the Discipline Committee; and
(f) he understands and acknowledges that he 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.
D. DECISION
8Having considered the Agreed Statement of Facts and Guilty Plea and the submissions of the parties, the Panel rendered an oral decision on October 21, 2019 finding that the Member engaged in acts of professional misconduct as alleged, contrary to: subsections 13, 14(d) and 14(f) of the TPA Regulation; subsection 229(1)(c) of the Education Act, 1974, S.O. 1974, C. 109; and subsections 1(16) and 1(17) of Ontario Regulation 437/97 made under the Act.
9The Panel made no finding with respect to allegation (e) of the Notice Hearing, namely that the Member engaged in the sexual abuse of a student as defined in the Act.
E. REASONS FOR DECISION
10The Member admitted the truth of the facts and exhibits referred to in paragraphs 1 to 18 of the Agreed Statement of Facts and Guilty Plea and admitted the allegations of professional misconduct against him. He acknowledged and the Panel accepts that the Admitted Facts constitute professional misconduct under the headings of misconduct set out above.
11With respect to the allegation of “sexual abuse of a student” as defined in section 1 of the Act, as outlined in paragraph (e) of the Notice of Hearing, the Panel makes no finding. Section 1 of the Act did not exist when the Member’s conduct occurred. Accepting independent legal counsel’s advice, it would therefore be inappropriate for the Panel to apply section 1 of the Act retrospectively to his conduct between 1973 and 1991. Had section 1 existed at the time of his conduct towards the Students, Student 8 and Student 9, his behaviour would have constituted “sexual abuse of a student”.
12The Admitted Facts demonstrate that between September 1973 and June 1991, the Member engaged in a pattern of sexual touching and/or behaviour or remarks of a sexual nature towards the Students (Students 1-7) and Person A. On March 21, 2018 the Member pleaded guilty to, and was found guilty of, seven count of gross indecency, contrary to section 157 of the Criminal Code of Canada, and one count of sexual assault, contrary to section 271(1) of the Criminal Code of Canada, in relation to the Students and Person A. On March 1, 2019, the Member pleaded guilty to, and was found guilty of, one count of gross indecency involving Student 8 and another count of gross indecency involving Student 9.
13The Member’s repeated sexual touching, behaviour or remarks towards the Students, Student 8 and Student 9 clearly demonstrates that the Member failed to uphold the honour, dignity and ethical standards of the profession, thereby contravening subsection 13 of the TPA Regulation. Through this conduct, the Member failed to show consistent justice in all his relations with pupils and failed to concern himself with the welfare of pupils when he abused his position of trust in an egregious manner, thereby contravening subsection 14(d) and (f) of the TPA Regulation.
14Similarly, the Member’s conduct demonstrates that he contravened section 229(1)(c) of the Education Act, 1974, in that he failed to act as an appropriate role model. The criminal convictions (nine counts of gross indecency and one count of sexual assault) demonstrates that the Member contravened a law relevant to the Member’s suitability to hold a certificate of qualification and registration. The contravention of this law has caused or may cause a student who is under the Member’s professional supervision to be put at or to remain at risk.
F. PENALTY DECISION
15The parties agreed to a Joint Submission on Penalty (Exhibit 3), which was presented to the Panel. In an oral decision rendered on October 21, 2019, the Panel accepted the Joint Submission on Penalty and made the following order:
The Member is directed to receive a reprimand, in writing, and that the fact of the reprimand is to be recorded on the public register of the Ontario College of Teachers; and
The Registrar of the Ontario College of Teachers is directed to immediately revoke the Certificate of Qualification and Registration of the Member.
G. REASONS FOR PENALTY DECISION
16The Panel accepts the penalty jointly proposed by the parties. The Panel recognizes that, once it ensures that it has jurisdiction to make the order requested, the law confines the Panel’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 Panel finds that the penalty proposed in the Joint Submission on Penalty falls within a range of acceptable outcomes, based on the following prior decisions of the Discipline Committee presented by College Counsel: Ontario College of Teachers v. Cotterell, 2019 ONOCT 14, and Ontario College of Teachers v. Lekavy, 2017 ONOCT 40.
17The 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; the fact that his misconduct led to significant emotional harm for a number of his victims; and, his gross abuse of his position of power and betrayal of students’ trust. In terms of mitigating factors, the Member admitted his misconduct, saving the time and expense of a contested hearing and saving the victims from having to appear at the College to provide testimony; and, he expressed remorse via his counsel. After weighing these factors, the Panel accepts that the penalty proposed by the parties is reasonable.
18The Panel finds that the Member’s repeated sexual touching, behaviour or remarks towards many students, warrants a reprimand by his peers. Members are expected to serve as role models for students, the Member’s misconduct, as set out above, was a clear violation of his duties as a teacher. The reprimand will allow the Panel to directly address 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.
19The Panel finds that revocation of the Member’s Certificate of Qualification and Registration is appropriate in this case. The Member’s conduct towards multiple students was abhorrent and reprehensible. The victim impact statements, contained within Justice M. Dumel’s Proceedings at Guilty Plea (Exhibit 2 at Tab C), demonstrate the deep psychological and emotional damage that still afflicts the Member’s victims today. The Member’s multiple, repeated sexual acts directed at students warrant an order of the Panel’s most severe penalty available: revocation. Not only has the Member’s conduct had a grave impact on his victims, but it has also undermined the public’s trust in the teaching profession. Accordingly, the Member is no longer entitled to be a member of the teaching profession in Ontario.
20The Panel is satisfied that the penalty is appropriate in the circumstances and meets the principle of serving and protecting the public interest.
Date: October 21, 2019
Diane Ballantyne, OCT Chair, Discipline Panel
Tom Potter Member, Discipline Panel
Stéphane Vallée, OCT Member, Discipline Panel