DISCIPLINE COMMITTEE OF THE ONTARIO COLLEGE OF TEACHERS

Ontario College of Teachers v Trinchi 2020 ONOCT 134

Date: 2020-01-30

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

Luigi Trinchi, a member of the Ontario College of Teachers.

BETWEEN:

ONTARIO COLLEGE OF TEACHERS

– and –

LUIGI TRINCHI (REGISTRATION #480848)

PANEL: Tom Potter, Chair Diane Ballantyne, OCT Sara Nouini, OCT

HEARD: November 8, 2019

Eli Mogil and Steven Chadwick, for the Ontario College of Teachers

No one appearing for Luigi Trinchi

Rebecca Durcan, 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 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.

1This matter was heard before a panel of the Discipline Committee (the “Panel”) on November 8, 2019 at the Ontario College of Teachers (the “College”).

2Luigi Trinchi (the “Member”) did not attend the hearing and did not have legal representation.

3Counsel for the College submitted an Affidavit of Eleanor Enniss (Exhibit 2) sworn on November 1, 2019, to show 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. Enniss, a law clerk with McCarthy Tétrault LLP, outlines the communications which her firm had with the Member over the period 2017-2019 and provides proof of service of all required documents. Ms. Enniss also advised the Member that if the matter proceeded on a contested basis, costs may be sought.

4Based on this affidavit, the Panel was satisfied that the Member had been properly served with the Notice of Hearing and all disclosure documents and was aware of the time and date of the hearing and the penalty being sought by the College. The Panel delayed the start of the hearing by approximately 30 minutes to allow the Member time to appear. The Member did not appear. The Panel therefore heard this matter in the absence of the Member.

A. PUBLICATION ban

5The 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.

6Additionally, the Panel received a copy of the transcript of the Reasons for Judgment from the Member’s criminal proceeding before Justice J.S. Fregeau dated June 17, 2016 (Exhibit 3 at Tab 2). In these proceedings before the Superior 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.

B. THE ALLEGATIONS

7The allegations against the Member in the Notice of Hearing dated August 24, 2017 (Exhibit 1) are as follows:

IT IS ALLEGED that Luigi Trinchi is guilty of professional misconduct as defined in 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 committed an act or omission 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

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

PARTICULARS OF THESE ALLEGATIONS ARE AS FOLLOWS

1. Luigi Trinchi is a member of the Ontario College of Teachers.

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

3. At all material times, Person A was a female colleague of the Member. Person B, Person C and Person D were female teacher candidates at the School.

4. From in and around March 2010 to January 2012, the Member:

(a) surreptitiously made a visual recording of Person A;

(b) preserved and/or distributed images of Person A without her consent;

(c) harassed Person A;

(d) created and/or sent emails in which he impersonated Person A;

(e) made available a recording of Person A to others without Person A’s consent.

5. During the fall of 2012, the Member:

(a) made comments of an inappropriate personal and/or sexual nature to Person B;

(b) touched Person B’s back;

(c) rubbed Person B’s shoulder;

(d) touched Person B’s arm;

(e) engaged in sexual harassment of Person B.

6. During the fall of 2012, the Member:

(a) made comments of an inappropriate personal and/or sexual nature to Person C;

(b) hugged and/or kissed Person C;

(c) whispered in Person C’s ear in the presence of another teacher candidate;

(d) engaged in sexual harassment of Person C.

7. During the fall of 2012, the Member:

(a) made comments of an inappropriate personal and/or sexual nature to Person D;

(b) told Person D that he could help her get a job interview;

(c) came up behind Person D’s back and/or rubbed her back in the presence of another teacher candidate;

(d) brushed Person D’s shoulder and/or the top of her back as they were walking and/or when they were in the staffroom;

(e) engaged in sexual harassment of Person D.

8. On June 17, 2016, the Member was found guilty of the criminal charge, that he between the 1^st day of March in the year 2010 and the 30^th day of June in the year 2011 at the City of Thunder Bay in the said Region, did without lawful authority, surreptitiously make a visual recording of Person A, a person in circumstances that give rise to a reasonable expectation of privacy, contrary to Section 162(1)(b) of the Criminal Code (Canada).

9. On November 10, 2016, the Member was given a suspended sentence and 12 months of probation.

10. The Member’s employment was terminated by the Board on July 4, 2016.

C. THE MEMBER’S PLEA

8As the Member was not present, the Panel proceeded on the basis that the Member denied the allegations set out in the Notice of Hearing.

D. THE EVIDENCE

9The College entered into evidence a Brief of Court Documents - Her Majesty the Queen v. Luigi Trinchi (Exhibit 3), which contains the following documents:

1. Certified Copy of Court Indictment;

2. Transcript of Reasons for Judgment by Justice J.S. Fregeau in the Superior Court of Justice, dated June 17, 2016;

3. Transcript of Reasons for Sentence by Justice J.S. Fregeau in the Superior Court of Justice, dated 10 November 2016;

4. Transcript of the Court of Appeal Reasons for Decision dated May 2, 2019; and

5. Transcript of the Court of Appeal Judgment dismissing the Appeal dated May 2, 2019.

10The evidence presented in Exhibit 3 establishes that on June 17, 2016, in the Superior Court of Justice, the Member was found guilty of the criminal charge, that he between the 1^st day of March in the year 2010 and the 30^th day of June in the year 2011 at the City of Thunder Bay, did without lawful authority, surreptitiously make a visual recording of Person A, a person in circumstances that give rise to a reasonable expectation of privacy contrary to section 162(1)(b) of the Criminal Code (Canada). On November 10, 2016, the Member was given a suspended sentence and 12 months of probation. The Member appealed his conviction and on May 7, 2019, the Court of Appeal ordered that the appeal be dismissed.

11College Counsel also entered into evidence the Registered Member Information for Luigi Trinchi (Exhibit 4), which indicates that the Member was a member of the College at the time of the alleged events.

E. SUBMISSIONS ON FINDING

12College Counsel advised the Panel at the outset that the College would be adducing evidence with respect to the particulars of the allegations involving Person A only, which are found at paragraphs 4 and 8 of the Notice of Hearing.

13College Counsel described the details of the Member’s criminal charges and submitted that the Member engaged in voyeurism. The Member made a video recording of Person A, who was a female colleague, during the period between 2010 and 2012. The Member and Person A were involved in an intimate relationship between March 2010 and September 2011.

14During their relationship the Member and Person A engaged in Skype video conversations, during which Person A posed nude. Person A’s understanding was that the video was being live streamed to the Member and not recorded in any way. Without Person A’s knowledge, the Member took and retained a number of screen shots of her while she was nude.

15After the end of their relationship, a series of seven emails with the nude pictures of Person A attached were distributed to a list of recipients including Person A’s family, friends and colleagues. The Member was charged with a number of offences relating to the distribution of these emails and attached photos. The Member was subsequently found not guilty of these offences. The Member was, however, found guilty of having made the photographic recordings or pictures that were attached to those seven emails in breach of section 162(1)(b) of the Criminal Code (Canada) (see Exhibit 3 at Tab 3, pages 2-3).

16According to College Counsel, the Member’s conduct, as detailed in the record of the criminal proceedings (see Exhibit 3) and the resultant criminal conviction, provides a sufficient basis to justify a finding of professional misconduct under all of the heads of misconduct alleged in the Notice of Hearing. The Member had legal representation during his criminal proceedings. His appeal of the criminal conviction was dismissed.

F. DECISION ON FINDING

17Having considered the evidence, onus and standard of proof, and the submissions made by College Counsel, the Panel rendered an oral decision on November 8, 2019, finding that the Member engaged in acts of professional misconduct as alleged, contrary to Ontario Regulation 437/97, subsections 1(5), 1(15), 1(16), 1(18) and 1(19).

G. REASONS FOR DECISION

(1) Factual Findings

18In accordance with the law of evidence and Rule 13.03 of the Rules of Procedure of the Discipline Committee and of the Fitness to Practise Committee (the “Rules”), the Panel accepts the certified copy of the Court Indictment (Exhibit 3, Tab 1) as proof, in this case, that the Member committed a criminal offence as described in count 2. The Member was found guilty and convicted of a criminal offence before a Canadian Court. The Member appealed his conviction. His appeal was heard and dismissed.

19In 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 Transcript of the Reasons for Judgment (Exhibit 3, Tab 2) and Transcript of the Reasons for Sentence (Exhibit 3, Tab 3) before the Superior Court of Justice involving the Member.

20Based on the evidence contained within the Brief of Court Documents, the College has proven, on a balance of probabilities, that between 2010 and 2012, the Member engaged in voyeurism by surreptitiously making photographic recordings or pictures of Person A. In light of the evidence proffered at the trial, the Panel also believes, on a balance of probabilities, that the Member preserved and distributed these images without the consent of Person A. The Panel is mindful that the Member was not criminally convicted of distribution, given the higher standard of proof (beyond a reasonable doubt) that exists in criminal proceedings. However, the evidence contained in the Brief of Court Documents proves, on a balance of probabilities, that he did so. The Panel relied primarily on Justice J. S. Fregeau’s reasoning set out at paragraph 178 of the Reasons on Judgment, which states:

Based on my consideration of all of the evidence, I conclude that the defendant probably did create and send the seven fake emails [emphasis added].

21The Member was subsequently found guilty of the criminal charge that he did, without lawful authority, surreptitiously make a visual recording of Person A, a person in circumstances that give rise to a reasonable expectation of privacy, contrary to section 162(1)(b) of the Criminal Code. He was given a suspended sentence and 12 months of probation.

(2) Legal Conclusions

22The Panel finds that the Member’s conduct was a clear breach of each of the following heads of professional misconduct set out in the Notice of Hearing: subsections 1(5), 1(15), 1(16), 1(18) and 1(19) of Ontario Regulation 437/97.

23The Member’s conduct eroded the trust that the public places in members of the profession, and he therefore failed to maintain the standards of the profession, contrary to subsection 1(5) of Ontario Regulation 437/97. The Panel accepts the advice of Independent Legal Counsel that expert evidence is not required to prove a breach of professional standards where the conduct is so egregious that it is self-evidently misconduct. The Member’s surreptitious visual recordings of Person A, which resulted in his criminal conviction for the offence of voyeurism, are a clear breach of the standards of the profession. In particular, the Member breached the ethical standards of “trust” and “integrity”. The ethical standard of “integrity” provides that members are expected to conduct themselves with “honesty, reliability and moral action”. The Member did the opposite. Moreover, members of the teaching profession hold a unique position of trust. The Member undermined the public’s trust in the profession by committing the criminal offence of voyeurism. The Member showed a profound lack of judgment when he violated Person A’s privacy.

24The Panel finds that the Member contravened subsection 1(15) of Ontario Regulation 437/97 by failing to comply with section 264(1) of the Education Act. Section 264(1)(c) of the Education Act provides that it is the duty of a teacher to “inculcate by precept and example […] the highest regard for truth, justice, loyalty, love of country, humanity, benevolence, sobriety, industry, frugality, purity, temperance and all other virtues.” Being found guilty of the criminal offence of voyeurism is a clear breach of this provision, which is commonly understood to mean that teachers must act as positive role models. The Member’s conduct in this case was entirely at odds with his obligations as a member of the profession.

25The Panel 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. Members of the teaching profession hold a unique position of trust and authority. They are responsible for the safety and development of students. When they engage in criminal conduct, that behaviour calls into question their suitability to hold a teaching certificate.

26The Panel finds that the Member’s acts of visually recording and distributing naked images of Person A without her consent or lawful authority are acts that, having regard to all the circumstances, would reasonably be regarded by members as disgraceful, dishonourable or unprofessional. Based on the evidence proffered at trial, the Panel finds, on a balance of probabilities, that the Member’s conduct led to significant and lasting emotional harm for Person A. The surreptitious visual recordings that the Member made of Person A were distributed to her email contacts, which included family, friends and professional colleagues. Person A indicated that she was humiliated, shocked and confused by the Member’s actions. She also indicated that the Member’s conduct had a significant impact on her mental health and her career (see Exhibit 3, Tab 3, paragraph 14). Engaging in voyeurism of a colleague is completely unacceptable and a clear breach of subsection 1(18) of Ontario Regulation 437/97.

27Finally, the Committee 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 engage in the criminal offence of voyeurism undermine the trust and confidence that the public places in members of the profession.

H. SUBMISSIONS ON PENALTY

28Counsel for the College submitted that revocation of the Member’s certificate of qualification and registration and a reprimand are appropriate penalties, considering the gravity of the Member’s misconduct. According to College Counsel, this is an egregious case of voyeurism, where the Member demonstrated a profound breach of trust and a complete disregard for Person A’s privacy. The Member’s conduct resulted in his criminal conviction. Revocation and a reprimand are appropriate in such serious matters as this.

29College Counsel referred the Panel to three cases involving members who were found guilty of a criminal offence, including that of voyeurism: Ontario College of Teachers v. Jack, 2013 ONOCT 52, Ontario College of Teachers v. Canacari, 2016 ONOCT 91 and Ontario College of Teachers v. Jarvis, 2019 ONOCT 21. 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.

I. PENALTY DECISION

30On November 8, 2019, the Panel made the following order as to penalty:

1. The Member is required to be reprimanded, in writing, and the fact of the reprimand is to be recorded on the Register of the Ontario College of Teachers.

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

J. REASONS FOR PENALTY

31In 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. In cases such as this, where the Member’s professional misconduct involved the criminal offence of voyeurism, 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 with the range of penalties ordered in several similar cases before the Discipline Committee, as presented by College Counsel.

32The Panel considered the Member’s circumstances in comparison to the cases provided. The aggravating factors in the Member’s case include the serious violation of trust and privacy of Person A and the failure of the Member to even attend this hearing. In addition the Member’s conduct led to significant and lasting emotional harm for Person A. The Panel did not find any mitigating factors.

33Revocation is not a mandatory penalty in this case but it is the appropriate order given the circumstances. The Member surreptitiously made a video recording of Person A and without her knowledge took and retained a number of screen shots of her while she was nude, which led to the Member’s conviction for the offence of voyeurism, contrary to section 162(1)(b) of the Criminal Code.

34There is no place in the profession for members who engage in conduct of this nature and gravity. Revocation is the penalty that appropriately responds to professional misconduct in this case. The Member’s conduct undermined the reputation of the teaching profession and as such, 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.

35The Panel is satisfied that the penalty is appropriate in the circumstances and meets the principle of serving and protecting the public interest.

36Further, even if the Panel only relied upon the criminal conviction, it would arrive at the same result. The nature of the Member’s criminal conviction justifies revocation on its own.

K. COSTS SUBMISSIONS OF COLLEGE COUNSEL

37College Counsel submitted that it would be appropriate to order costs in this proceeding and submitted that the appropriate quantum is $5,000. He calculated this amount by applying the Tariff A rate of $10,000 per hearing day for a half hearing day under the Rules.

38College Counsel submitted that the relevant factors for consideration are described in the cases of Ontario College of Teachers v. Hall, 2019 ONOCT 20 and Ontario College of Teachers v. Chong Yen, 2019 ONOCT 28. He referred to the Affidavit of Eleanor Enniss (Exhibit 4) and argued that, in determining costs, the Panel may consider the conduct of the Member during the disciplinary hearing. He was uncooperative which led to the matter having to proceed as a contested matter when it could have been resolved by agreement.

L. costs decision

39On November 8, 2019, the Panel ordered the Member to pay to the College the costs of the proceeding in the amount of $5000 within six months of the date of the Oral decision.

M. Reasons for Costs Decision

40Section 30(5)4 of the Act gives the Panel the authority to fix costs to be paid to the College where it finds a member guilty of professional misconduct. Rule 16.05(3) provides:

Where the request for costs includes the cost or expense to the College of conducting a day of hearing, no evidence of the cost or expense of a day of hearing is needed if the request is equal to or less than the amount set out in Tariff A. This sub-rule applies only to hearings before the Discipline Committee.

41Tariff A is described in the Rules as “costs and expenses for the College to conduct a day of hearing” and specifies: “Fee of College counsel including for preparation, fee of independent legal counsel and fee of court reporter: $10,000”.

42In arriving at its decision, the Panel considered the factors listed in the Hall and Chong Yen decisions cited above, in order to determine whether costs should be ordered: apportioning costs; uncooperative and vexatious conduct; promotion of good conduct; success of the parties; and, the member’s ability to pay. The Panel recognizes that an award of costs is discretionary and compensatory in nature (to reimburse the College for the expense of disciplinary proceedings) rather than punitive.

43The Panel finds that based on the Affidavit of Eleanor Enniss (Exhibit 4), the Member was uncooperative during the disciplinary process. The Panel also noted that the Member was advised on several occasions that the College may seek an order for costs if the matter proceeded on a contested basis without the Member’s participation. Given that the Member was found guilty and convicted criminally before his disciplinary hearing, that the Brief of Court Documents are admissible under Rule 13.04 as proof of the Member’s prior conviction, and that the Member did not attend his hearing to contest the allegations against him, there is no good reason that this matter should have had to proceed on a contested basis. The Member’s lack of cooperation required this hearing to proceed on a contested basis when it could have been resolved by agreement. This conduct unnecessarily lengthened the duration of this hearing. Moreover, the College was largely successful in proving the allegations and achieving the requested penalty. There was no evidence before the Panel of the Member’s ability or inability to pay a costs award.

44Therefore, on the totality of the evidence, the Panel finds that this is an appropriate case in which to order costs of the hearing to the College, particularly in light of the Member’s uncooperative conduct, and orders costs in the amount of $5,000 in accordance with Tariff A.