DISCIPLINE COMMITTEE OF THE ONTARIO COLLEGE OF TEACHERS

Ontario College of Teachers v Vincer 2020 ONOCT 116

Date: 2020-01-04

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

Thomas Steven Vincer, a member of the Ontario College of Teachers.

BETWEEN:

ONTARIO COLLEGE OF TEACHERS

– and –

THOMAS STEVEN VINCER (REGISTRATION #164745)

PANEL: Nicola Powadiuk, OCT, Chair Benoît Dussault, OCT Tom Potter

HEARD: December 9, 2019

Jason Bennett, for the Ontario College of Teachers No one appearing for Thomas Steven Vincer Rebecca Durcan, Independent Legal Counsel

PUBLICATION BAN: Pursuant to subsections 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 or the person who was allegedly sexually abused or the subject of the sexual misconduct or a prohibited act involving child pornography.

By order of Justice P. Solomon 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.

1This matter was heard before a panel of the Discipline Committee (the “Panel”) on December 9, 2019 at the Ontario College of Teachers (the “College”).

2Thomas Steven Vincer (the “Member”) did not attend the hearing and did not have 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 BANS

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. On behalf of Student 1, who was allegedly sexually abused, College Counsel also requested a publication ban pursuant to subsection 32.1(4) of the Act. The Panel therefore ordered that no person shall publish the identity of or any information that could disclose the identity of Student 1.

4Additionally, the Panel received a certified copy of the transcript of the Plea and Facts from the Member’s criminal proceeding before Justice P. Solomon, dated April 6, 2018 (Exhibit 3 at Tab C). In these proceedings before the Ontario Court of Justice, an order restricting publication was made pursuant to section 486.4 of the Criminal Code. 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.

B. THE ALLEGATIONS

5The allegations against the Member in the Notice of Hearing dated July 31, 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, as amended, made pursuant to section 12 of the Teaching Profession Act, R.S.O. 1980, c. 495, as amended (the “TPA Regulation”);

(b) failed to show consistent justice and consideration in all his relations with pupils, contrary to subsection 14(d) of the TPA Regulation;

(c) failed to concern himself with the welfare of his pupils while they were under his care, contrary to subsection 14(f) of the TPA Regulation;

(d) failed to comply with subsection 235(1)(c) (Duties of a Teacher) of the Education Act, R.S.O. 1980, c. 129;

(e) engaged in sexual abuse of a student, as defined in section 1 of the Act;¹

(f) contravened a law, which 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);

(g) contravened a law, which contravention 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

6College Counsel presented the Panel with the parties’ Agreed Statement of Facts and Guilty Plea (Exhibit 2), which provides the following:

1. The Member is a member of the Ontario College of Teachers. Attached hereto and marked as Appendix “A” is a copy of the Member’s Registered Member Information summary from the College’s public register.

2. On February 27, 2018, the Member’s membership status with the College was changed to “Retired”.

3. At all material times, the Member was employed by the Simcoe Muskoka Catholic District School Board (the “Board”) as a teacher at [XXX] School (the “School”) in [XXX], Ontario.

4. In 1984 - 1985, Student 1 was a [XXX]-year-old male student of the School and a student of the Member.

5. On several occasions between July 1, 1984 and June 30, 1986 the Member engaged in sexual touching of Student 1 and/or engaged in behaviour of a sexual nature towards Student 1.

6. On September 13, 2017, Student 1, then [XXX] years old, reported these events to the Ontario Provincial Police.

7. On September 14, 2017, the Member was placed under arrest by the Ontario Provincial Police.

8. On September 15, 2017, the Member submitted his resignation to the Board, effective September 29, 2017.

9. On September 29, 2017, the Barrie Police Service charged the Member with:

(a) one count of sexual assault of Student 1 between July 1, 1984 and June 30, 1986, contrary to section 246.1 of the Criminal Code (Canada); and

(b) one count of gross indecency with Student 1 between July 1, 1984 and June 30, 1986, contrary to section 157, of the Criminal Code (Canada).

10. Attached hereto and marked as Appendix “B” are certified copies of the Information of Peace Officer Jason Storey of the Barrie Police Service dated September 29, 2017 setting out the criminal charges against the Member, along with a list of the Member’s appearances in Court and the final disposition of the charges against him.

11. On April 6, 2018, the Member pleaded guilty to, and was found guilty of, the sexual assault charge. The gross indecency charge was withdrawn at the request of the Crown. Attached hereto and marked as Appendix “C” is a certified copy of the transcript of the Plea and Facts before the Honourable Justice J. Bliss, dated April 6, 2019. The facts giving rise to the Member’s guilty plea are set out in the transcript.

12. On January 9, 2019, the Member was sentenced to an 18-month custodial sentence, to be followed by one year of probation, and was made subject to a number of ancillary orders. Attached as Appendix “D” is a certified copy of the Reasons for Sentence before the Honourable Justice J. Bliss, dated January 9, 2019. Attached as Appendix “E” are certified copies of a Prohibition Order and an Adult Probation Order, both dated January 9, 2019.

13. The Member did not appeal his conviction or sentence.

GUILTY PLEA

14. By this document, the Member admits the truth of the facts and appendices referred to in paragraphs 1 to 13 above (the “Admitted Facts”).

15. The Member hereby acknowledges that the Admitted Facts at paragraphs 5 and 9-12 above constitute conduct that is professional misconduct and pleads guilty to the allegations of professional misconduct against him, being more particularly breaches of:

(a) section 13 (General Duties of Members) of Ontario Regulation 63/55, as amended, made pursuant to section 12 of the Teaching Profession Act, R.S.O. 1980, c. 495, as amended (the “TPA Regulation”), namely that the Member failed to uphold the honour, dignity, and ethical standards of the teaching profession;

(b) 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) 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) subsection 235(1)(c) of the Education Act, R.S.O. 1980, c. 129, 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) subsection 1(16) of Ontario Regulation 437/97 made under section 40(1) of the Ontario College of Teachers Act, 1996, S.O. 1996, c. 12 (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

(f) 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.

16. By this document the Member states that he:

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

(b) 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) 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) 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) understands that any agreement between his counsel² and counsel for the College with respect to the penalty does not bind the Discipline Committee; and,

(f) understands and acknowledges that he is executing this Agreement voluntarily, unequivocally, and with the advice of legal counsel.³

17. 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

7Counsel for the College requested that the allegation of professional misconduct outlined in paragraph (e) of the Notice of Hearing, namely that the Member engaged in sexual abuse of a student, as defined in Section 1 of the Act, be withdrawn. The Panel granted this request.

8Having considered the Agreed Statement of Facts and Guilty Plea and the submissions of College Counsel, the Panel rendered an oral decision on December 9, 2019 finding that the Member engaged in acts of professional misconduct as alleged, contrary to section 13 and subsections 14(d) and 14(f) of the TPA Regulation; subsection 235(1)(c) of the Education Act, R.S.O. 1980, c. 129; and subsections 1(16) and 1(17) of Ontario Regulation 437/97 made under the Act.

E. REASONS FOR DECISION

9The Member admitted the truth of the facts and exhibits referred to in paragraphs 1 to 13 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.

10The Panel notes that the Member’s underlying conduct in this matter – the sexual touching of Student 1 and/or sexual behaviour toward Student 1 – gives rise to findings made pursuant to the TPA Regulation and the Education Act, 1980, which were in effect at the time of the Member’s misconduct. The fact of the Member’s guilty plea and finding of guilt before the Ontario Court of Justice on April 6, 2018 gives rise to the findings of professional misconduct under the current legislation: Ontario Regulation 437/97, subsections 1(16) and 1(17).

11The Admitted Facts demonstrate that between July 1, 1984 and June 30, 1986 the Member engaged in sexual touching of Student 1 and/or engaged in behaviour of a sexual nature towards Student 1 on multiple occasions. On April 6, 2018 the Member pleaded guilty to, and was found guilty of, sexual assault in relation to Student 1, contrary to section 246.1 of the Criminal Code. The Member’s repeated sexual touching of Student 1 and/or behaviour of a sexual nature toward Student 1 clearly demonstrates that the Member failed to uphold the honour, dignity and ethical standards of the profession, thereby contravening section 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 subsections 14(d) and (f) of the TPA Regulation. Similarly, the Member’s conduct demonstrates that he contravened section 235(1)(c) of the Education Act, 1980, in that he failed to act as an appropriate role model. The criminal conviction on 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

12The parties agreed to a Joint Submission on Penalty (Exhibit 5), which was presented to the Panel. In an oral decision rendered on December 9, 2019 the Panel accepted the Joint Submission on Penalty and made the following order:

1. The Member is directed to 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 the fact of the reprimand is to be recorded on the Register of the Ontario College of Teachers (the "Register"); and

2. The Registrar is directed to immediately revoke the Certificate of Qualification and Registration of the Member.

G. REASONS FOR PENALTY DECISION

13The 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 is proportionate to the serious misconduct committed by the Member, and is reasonable 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.

14To be blunt, even had these previous authorities not existed, the Panel would have accepted the proposed penalty. The Panel believes that revocation is the only appropriate and proportionate order in light of the Member’s misconduct.

15The Panel also accepts that an oral reprimand is appropriate in this case. By repeatedly engaging in the sexual touching of a student, the Member egregiously abused his position of trust and authority as a teacher. The Member’s conduct completely disregarded Student 1’s safety and wellbeing. 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. The Panel notes that, because the Member did not attend the hearing, he did not receive his reprimand immediately following the hearing as the Joint Submission on Penalty stipulates. Therefore, the Member must schedule a date with the Tribunals Office to receive his reprimand in person at the College.

16The Panel is satisfied that the penalty is appropriate in the circumstances and meets the principle of serving and protecting the public interest.

Date: January 4, 2020

Nicola Powadiuk, OCT Chair, Discipline Panel

Benoît Dussault, OCT Member, Discipline Panel

Tom Potter Member, Discipline Panel

Footnotes

1. 1Allegation withdrawn at College Counsel’s request.
2. 2College Counsel submitted that the Member was given an opportunity to retain counsel, but he declined to do so (see Exhibit 4).
3. 3College Counsel submitted that the Member agreed to enter into this Agreed Statement of Facts and Guilty Plea without the advice of legal counsel (see Exhibit 4).