DISCIPLINE COMMITTEE OF THE ONTARIO COLLEGE OF TEACHERS

Ontario College of Teachers v Baig 2020 ONOCT 178

Date: 2020-08-21

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

Mirza Habeebullah Baig, OCT, a member of the Ontario College of Teachers.

BETWEEN:

ONTARIO COLLEGE OF TEACHERS

– and –

Mirza Habeebullah Baig (REGISTRATION # 445068)

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

HEARD: August 19, 2020

Jean-François Schaan, for the Ontario College of Teachers Michelle Sun, for Mirza Habeebullah Baig Julie Maciura, 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 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 of the Peace E.L. Debartolo 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 August 19, 2020 at the Ontario College of Teachers (the “College”). With the consent of the parties, and in accordance with section 3 of the Hearings in Tribunal Proceedings (Temporary Measures) Act, 2020, S.O. 2020, c. 5, Sched 3, this matter proceeded by way of an electronic hearing.

2Mirza Habeebullah Baig (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, a publication ban was ordered pursuant to subsection 32.1(4) of the Act at the request of College Counsel on behalf of Student 1, Student 2 and Student 3, who were allegedly sexually abused, or the subject of sexual misconduct or a prohibited act involving child pornography. Accordingly, no person shall publish the identity of, or any information that could disclose the identity of Student 1, Student 2 and Student 3.

5Additionally, the Panel received a certified copy of the transcript of the Member’s criminal proceedings before Justice D.S. Rose dated January 25, 2019 (Exhibit 2 at Appendix E). In these proceedings in the Ontario Court of Justice, an order restricting publication was made pursuant to section 486.4 of the Criminal Code of Canada by order of Justice of the Peace E.L. Debartolo on April 11, 2018. 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

6The allegations against the Member in the Amended Notice of Hearing dated October 30, 2019 (Exhibit 1) are as follows:

IT IS ALLEGED that Mirza Habeebullah Baig 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 abused a student or students verbally, contrary to Ontario Regulation 437/97, subsection 1(7);

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

(d) he abused a student or students 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;

(e) he engaged in sexual misconduct as defined in section 1 of the Act;¹

(f) 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);

(g) 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);

(h) 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);

(i) 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);

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

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:

1. Mirza Habeebullah Baig is a member of the Ontario College of Teachers. Attached hereto and marked as Appendix “A” is a copy of the Ontario College of Teachers Registered Member Information with respect to the Member.

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

3. At all material times, Student 1, Student 2 and Student 3 were male students at the School.

Inappropriate Communications

4. During 2015/2016 academic year, the Member engaged in inappropriate communications with Student 1 by talking about issues of a personal and/or sexual nature with Student 1.

5. During 2015/2016 academic year, the Member engaged in inappropriate electronic communications with Student 2, including but not limited to:

(a) Asking Student 2, “How big is [Student 2’s] dick?”;

(b) Asking Student 2, “How [does Student 2] measure [his penis]?”;

(c) Asking Student 2, “Do I measure with the round? Why not? You should.”; and

(d) Asking Student 2, “Do I shave with a buzzer or razor?”

6. On or about April 2017, the Member engaged in inappropriate electronic communications with Student 3, including but not limited to:

(a) Telling Student 3, “I get it, it’s against everyone’s religion, but doesn’t stop most. I guess you’re a good boy with self control?”; and

(b) Concluding his emails to Student 3 with “love, Habeeb”.

7. On or about September 2017, the Member engaged in inappropriate electronic communications with Student 1, including but not limited to:

(a) Asking Student 1, “How big is your dick?”;

(b) Asking Student 1, “How many times do you jerk off?”;

(c) Asking Student 1, “Are you doing it [jerking off] now?;

(d) Asking if Student 1, was “still Jelqing?”;

(e) Repeatedly asking Student 1, about the size of Student 1’s penis;

(f) Asking Student 1, “Have you done it with that girl since or any other ones!”;

(g) Asking Student 1, “How often are you jerking off these days?”;

(h) Asking Student 1 for Student 2’s telephone number; and

(i) Repeatedly asking and telephoning Student 1 to contact the Member after Student 1 ceased communicating with the Member.

8. On January 16, 2018, the Member resigned from his employment with the Board.

Criminal Offences

9. On or about April 11, 2018, the Member was charged with the following criminal offences:

(a) Between the 8th day of September in the year 2016 and the 22nd day of September in the year 2017 at the City of Vaughan in the Regional Municipality of York did, being a person who was in a position of trust and authority towards a young person, for a sexual purpose counsel that young person, namely [Student 1], to directly or indirectly touch with a part of his body the body of [Student 1], contrary to Section 153, subsection (1.1) of the Criminal Code of Canada;

(b) Between the 20th day of September in the year 2017 and the 22nd day of September in the year 2017 at the City of Vaughan in the Regional Municipality of York did, by means of a telecommunication, communicate with a person, namely [Student 1] who was or was believed to be under the age of eighteen years, for the purpose of facilitating the commission of an offence under subsection 153(1) of the Criminal Code of Canada with respect to that person, contrary to Section 172.1, subsection (2) of the Criminal Code of Canada;

(c) Between the 8th day of September in the year 2016 and the 31st day of January in the year 2017 at the City of Vaughan in the Regional Municipality of York did, for a sexual purpose, counsel, a person under the age of sixteen years, namely [Student 2], to directly or indirectly touch with a part of his body the body of [Student 2], contrary to Section 152 of the Criminal Code of Canada;

(d) Between the 8th day of September in the year 2016 and the 30th day of September in the year 2017 at the City of Vaughan in the Regional Municipality of York did, for a sexual purpose, counsel, a person under the age of sixteen years, namely [Student 3], to directly or indirectly touch with a part of his body the body of [Student 3], contrary to Section 152 of the Criminal Code of Canada; and

(e) Between the 31st day of January in the year 2017 and the 30th day of September in the year 2017 at the City of Vaughan in the Regional Municipality of York did, by means of a telecommunication, communicate with a person, namely [Student 3], who was or was believed to be under the age of sixteen years, for the purpose of facilitating the commission of an offence under subsection 152 of the Criminal Code of Canada with respect to that person, contrary to Section 172.1, subsection (2) of the Criminal Code of Canada.

10. On January 25, 2019, the Member pleaded guilty to the following charge:

(a) Between the 8th day of September in the year 2016 and the 22nd day of September in the year 2017 at the City of Vaughan in the Regional Municipality of York did, being a person who was in a position of trust or authority towards a young person, for a sexual purpose counsel that young person, namely [Student 1], to directly or indirectly touch with a part of his body the body of [Student 1], contrary to Section 153, subsection (1.1) of the Criminal Code of Canada.

11. On January 25, 2019, the Honourable Justice D.S. Rose of the Ontario Court of Justice found the Member guilty of sexual exploitation against Student 1, contrary to Section 153 (1.1) of the Criminal Code of Canada. Justice Rose suspended the imposition of a sentence and placed the Member on probation for three years. The Member was also made the subject of a number of ancillary orders. The other charges against the Member were withdrawn at the request of the Crown.

12. The Member did not appeal his conviction and/or sentence.

13. Attached hereto and marked as Appendix “B” is a certified copy of the Court Information dated April 11, 2018, along with the Appearances and disposition in the criminal proceeding.

14. Attached hereto and marked as Appendix “C” is a certified copy of the Adult Probation Order dated January 25, 2019.

15. Attached hereto and marked as Appendix “D” are certified copies of the ancillary orders dated January 25, 2019.

16. Attached hereto and marked as Appendix “E” is a certified copy of the transcript of the Proceedings before the Honourable Justice D. S. Rose dated January 25, 2019.

GUILTY PLEA

17. By this document, the Member admits the truth of the facts and exhibits referred to in paragraphs 1-16 above (the “Admitted Facts”).

18. 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(5), 1(7), 1(7.2), 1(7.3), 1(15), 1(16), 1(17), 1(18) and 1(19). The Member also acknowledges that he engaged in sexual abuse of a student, as defined in section 1 of the Ontario College of Teachers Act, 1996.

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 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 and counsel for the College with respect to the penalty proposed in this document does not bind the Discipline Committee;

(f) he understands and acknowledges that he is executing this Agreement voluntarily, unequivocally, and with the advice of legal counsel or with the opportunity to have obtained the advice of legal counsel.

20. In light of the Admitted Facts and circumstances and the plea of guilt, the Ontario College of Teachers and the Member submit that the Discipline Committee find the Member guilty of professional misconduct.

D. DECISION

8Counsel for the College requested that the allegation of professional misconduct outlined in paragraph (e) of the Amended Notice of Hearing, namely that the Member engaged in sexual misconduct as defined in section 1 of the Act, be withdrawn. College Counsel stated that the Panel’s permission to withdraw the allegation was being sought since a finding of “sexual abuse” precludes a finding of “sexual misconduct” under section 1 of the Act in the present matter. Given that the parties have agreed that the conduct of the Member constitutes sexual abuse of Student 1, Student 2 and Student 3, a finding of sexual misconduct is not warranted in the circumstances. The Panel granted the request.

9Having considered the Agreed Statement of Facts and Guilty Plea and the submissions of the parties, the Panel rendered an oral decision on August 19, 2020, finding that the Member engaged in acts of professional misconduct as alleged, contrary to Ontario Regulation 437/97, subsections 1(5), 1(7), 1(7.2), 1(7.3), 1(15), 1(16), 1(17), 1(18) and 1(19). The Member also engaged in sexual abuse of a student as defined in section 1 of the Act.

E. REASONS FOR DECISION

10The Member admitted the truth of the facts and exhibits referred to in paragraphs 1 to 16 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. The Admitted Facts demonstrate that the Member sent inappropriate electronic communications of a sexual nature to Student 1, Student 2 and Student 3, which amount to sexual abuse of a student.

11The Member was convicted of the offence of sexual exploitation against Student 1, contrary to section 153(1.1) of the Criminal Code of Canada. He was given a suspended sentence, placed on 3 years probation and made the subject of a number of ancillary orders. He did not appeal his conviction and/or sentence.

12The Panel finds that the Member failed to maintain the standards of the profession contrary to subsection 1(5) of Ontario Regulation 437/97 by sending grossly inappropriate electronic messages to Student 1, Student 2 and Student 3 about the size of their penises and about masturbation. Making remarks of a sexual nature to students amounts to sexual abuse and is self-evidently a serious breach of the ethical and professional standards of the profession.

13The Panel finds that the Member abused students verbally, contrary to subsection 1(7) of Ontario Regulation 437/97. Among other things, the Member repeatedly asked Student 1 about the size of Student 1’s penis and “how many times do you jerk off?”. The Member asked Student 2, among other things, “how big is [Student 2’s] dick”. The Member furthermore made reference to Student 3’s masturbation habits by asking him inappropriate questions such as “I get it, it’s against everyone’s religion, but doesn’t stop most. I guess you’re a good boy with self control?” The Panel finds that asking students questions about the size of the students’ penises and masturbation habits, amounts to verbal abuse of students.

14The Member’s conduct constitutes psychological or emotional abuse of a student contrary to subsection 1(7.2) of Ontario Regulation 437/97. The Panel finds that the Member psychologically or emotionally abused Student 1 by repeatedly asking him inappropriate questions about his penis, his masturbation habits and advising him to masturbate and then to discuss it with the Member (see Exhibit 2 at Appendix E). In his Victim Impact Statement as reproduced in the court transcript (see Exhibit 2 at Appendix E), Student 1 described how the Member’s actions affected him emotionally. Student 1 was very upset and confused as the Member was in a position of power and somebody he trusted. Student 1 furthermore stated that he felt uncomfortable, embarrassed and had to reach out to his family and friends for support. Members hold a position of authority and trust and are expected to conduct themselves in a way that fosters the well-being of students. The Member showed a complete disregard for Student 1’s wellbeing.

15The Member’s conduct constitutes sexual abuse of students contrary to subsection 1(7.3) of Ontario Regulation 437/97. The definition of sexual abuse at section 1 of the Act includes touching and behaviour or remarks of a sexual nature by a member towards a student. The Member’s inappropriate questions to Student 1, Student 2 and Student 3, such as asking Student 1 and Student 2 about the size of their penises and their masturbation habits and asking Student 3 about his masturbation habit clearly meet this definition. This finding is further supported by the Member’s criminal conviction for sexual exploitation of Student 1.

16The Member contravened subsection 1(15) of Ontario Regulation 437/97 by failing to comply with section 264(1) of the Education Act, which sets out the duties of a teacher. Members hold a unique position of trust and authority. They are expected to encourage students in the pursuit of learning and serve as positive role models as they are responsible for the well-being, safety and development of students. By sexually abusing Student 1, Student 2 and Student 3 and advising Student 1 to masturbate and report back to him (see Exhibit 2 at Appendix E), the Member’s conduct was entirely at odds with his obligations as a member of the profession.

17The Panel finds that the Member’s criminal conviction for sexual exploitation of Student 1 demonstrates that he contravened a law relevant to his suitability to hold a Certificate of Qualification and Registration contrary to subsection 1(16) of Ontario Regulation 437/97. Members of the teaching profession are responsible for the safety and well-being of students. The teaching profession does not tolerate the sexual exploitation of students by members and this type of criminal conduct clearly relates to a member’s suitability to hold a teaching certificate.

18The Panel finds that the Member’s criminal conviction in relation to Student 1 and sexual abuse of Student 1, Student 2 and Student 3, has caused students under the Member’s supervision to be put at or remain at risk contrary to subsection 1(17) of Ontario Regulation 437/97.

19The Member’s misconduct is disgraceful, dishonourable or unprofessional contrary to subsection 1(18) of Ontario Regulation 437/97. Members are expected to create a safe learning environment for students, and not to exploit their position to sexually abuse students. The Member demonstrated a complete lack of professional judgment and failed to meet these expectations by sexually abusing Students 1, 2 and 3.

20The Member’s abusive conduct and criminal conviction, as described above is also unbecoming a member contrary to subsection 1(19) of Ontario Regulations 437/97. The public’s trust in the teaching profession is grossly eroded when members abuse their position of trust and authority to sexually abuse students.

F. PENALTY DECISION

21The parties agreed to a Joint Submission on Penalty (Exhibit 3), which was presented to the Panel. In an oral decision rendered on August 19, 2020, the Panel accepted the Joint Submission on Penalty and made the following order:

1. The Member is directed to 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”); and

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

G. REASONS FOR PENALTY DECISION

22The Member’s professional misconduct included the sexual abuse of a student as described in subsection 30.2(2) of the Act. Given this finding, section 30.2(1) of the Act provides that the Panel must make an order: (1) requiring that the Member be reprimanded by the Panel; and (2) directing the Registrar to revoke the Member’s certificate of qualification and registration. The Panel makes both of these orders and notes that it has no discretion in this regard. In relation to the form of the reprimand, the Panel accepts the parties’ joint submission and finds that it is appropriate to deliver the reprimand in writing, in the circumstances of this case. The Panel recognizes that it may also order costs or a fine in accordance with subsection 30(5) of the Act but finds it reasonable not to make these additional orders in light of the Member’s guilty plea and joint submission on penalty.

23The Panel denounces the Member’s misconduct in the strongest terms.

Footnotes

1. 1Allegation withdrawn at the request of College Counsel.