DISCIPLINE COMMITTEE OF THE ONTARIO COLLEGE OF TEACHERS

Ontario College of Teachers v Ross 2020 ONOCT 181

Date: 2020-08-19

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

Anthony Ross, a member of the Ontario College of Teachers.

BETWEEN:

ONTARIO COLLEGE OF TEACHERS

– and –

ANTHONY ROSS (REGISTRATION #192730)

PANEL: John Hamilton, OCT, Chair Irene Dembek, OCT Jonathan Rose

HEARD: August 10, 2020

Eli Mogil and Vincent DeMarco, for the Ontario College of Teachers

Vanora Simpson, for Anthony Ross (not present)

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 Shousterman, Ontario Court of Justice on June 20, 2018, 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 10, 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.

2Anthony Ross (the “Member”) had legal representation but neither the Member nor his lawyer attended the hearing. 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.

4A publication ban was also ordered pursuant to subsection 32.1(4) of the Act at College Counsel’s request and on behalf of the Student¹ referred to in the Notice of Hearing dated September 30, 2019 who was 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 the Student.

5Additionally, the Panel received a certified copy of the transcript of the Member’s Guilty Plea and Reasons for Sentence from the Member’s criminal proceedings before the Honourable Justice M.E. Misener dated January 7, 2019 (Exhibit 2 at Tab D). In these proceedings, an order restricting publication was made by Justice of the Peace Shousterman on June 20, 2018 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

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

IT IS ALLEGED that Anthony Ross 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)²;

(b) he abused a student physically, contrary to Ontario Regulation 437/97, subsection 1(7.1);

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

(d) 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;

(e) he failed to comply with the Act, or the regulations or the by-laws, and specifically section 32 of the by-laws, contrary to Ontario Regulation 437/97, subsection 1(14);

(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. STATEMENT OF UNCONTESTED FACTS

7College Counsel presented the Panel with the parties’ Statement of Uncontested Facts and Plea of No Contest (Exhibit 2), which provides the following:

1. The Member is a 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.

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

3. On or about April 27, 2018, the Student was a [XXX] year old male student at the School. The Student had a learning disability and an Individual Education Plan (“IEP”).

4. On or about April 26, 2018, the Student went to the Member’s [XXX] to ask if he could arrange for his [XXX] test to be written in this room, as he was entitled to extra time because of his IEP. The Member agreed with the Student and permitted him to write the [XXX] test in the [XXX].

5. Following this discussion, the Member asked the Student personal questions, including how the Student was doing and about the Student’s family. The Member told the Student that he had a beautiful personality, that he was genuine and caring, and that “you don’t really meet people like [the Student].” The Student noticed that the Member was looking at the Student’s body. This made the Student uncomfortable, and he left the School to go home.

6. On or about April 27, 2018, the Student returned to the [XXX] to write his [XXX] test as had been agreed on with the Member the day before. When the Student arrived, the Member told him that the [XXX] test had been postponed until April 30, 2018. The Student confirmed this with the [XXX] teacher and left the School to eat lunch. The Student returned to the School and attended the [XXX] in order to study with the Member for the test.

7. When the Student sat down, the Member approached his table and sat close to him. The Member began to ask the Student personal questions, including about his wellbeing, his other teachers, and his family. The Member compared the Student to another student that he used to [XXX], stating words to the effect of: “you couldn’t tell that this other student suffered because he had a great body” and “you could tell that he worked out.”

8. The Member then asked the Student whether he worked out, and about his exercise routine. The Member asked the Student what part of his body he was most proud of. The Student responded that he did not know, but maybe his abs. The Member asked the Student if he had a “six pack” and the Student responded that he did not, but that he had obliques. The Member then asked about the Student’s chest, and whether he had the “cuts in the middle.” The Student responded that he guessed that he did, if he flexed.

9. The Member stated “wow” and then asked the Student to let him see. The Member looked to see if there was anyone else in the room, and then proceeded to grab the Student’s right breast with his right hand and squeezed it for approximately 30 seconds. The Member stated words to the effect of “you have a great chest.”

10. The Member then began to ask the Student about his arms. The Member proceeded to run his index finger up and down a vein in the Student’s right bicep. The Member stated words to the effect of “wow, your chest, I can’t believe it” and then grabbed the Student’s right breast again for a few seconds. The Member stated words to the effect of: “oh fuck that’s good. If I had your body I would be very proud.” The Member continued to ask the Student personal questions, including about his body hair, the Student’s [XXX], and the Student’s [XXX]. The Member showed the Student that he also wore a [XXX], and told the Student that he never took it off, even in the shower. The Member told the Student that he was a beautiful person, and stated “I don’t know how chicks are not all over you.” The Student was very uncomfortable.

11. At this point, another student entered the [XXX]. The Student told the Member that he should be getting to class, and the Member stated words to the effect of “ya buddy, you should be.” The Student felt violated and afraid. The Student called his mother after leaving the [XXX] to tell her what had happened.

12. On June 21, 2018, the Board wrote to the Member to confirm that he had been arrested, charged, and released with conditions. The Member had previously been asked to remain at home due to the Board’s investigation, and was asked to remain off work on a non-disciplinary without-pay suspension effective June 21, 2018. Attached hereto and marked as Exhibit “B” is a copy of the Board’s letter to the Member.

13. On or about December 1, 2018, the Member retired from teaching.

Criminal Proceedings:

14. On or about January 7, 2019, the Member pleaded guilty to the offence of assault as against the Student in relation to the incidents that occurred on April 27, 2018. The Member pleaded guilty to touching the Student’s forearms without his consent for approximately 25 to 30 seconds.

15. The Member received a conditional sentence for a period of 12 months and was confined to his home for the first four months. The Member was also ordered [XXX] and was prohibited from possessing a firearm or other prohibited device for a period of 5 years. Attached hereto and marked as Exhibit “C” is a copy of the Certified Court Information dated June 20, 2018; Exhibit “D” is a copy of the transcript of the Guilty Plea and Reasons for Sentence dated January 7, 2019 (see pp. 4-5); Exhibit “E” is a copy of the Member’s Prohibition Order dated January 7, 2019.

Prior History with the College:

16. The Member has prior discipline history with the College. On or about the 1994-1995 academic year, the Member drove a student to school and to events, told this student that he loved and cared for him, gave this student gifts, and would hold the student’s hand. The Member was found guilty of professional misconduct by the Discipline Committee on November 18, 2016. Attached hereto and marked as Exhibit “F” is a copy of the decision of the Discipline Committee.

PLEA OF NO CONTEST

17. By this document, the Member agrees that the Discipline Committee can accept as correct the facts and the exhibits referred to in paragraphs 1-16 above (the “Uncontested Facts”).

18. The Member hereby acknowledges that the Uncontested Facts constitute conduct which is professional misconduct, and pleads no contest to the allegations of professional misconduct against him being more particularly breaches of Ontario Regulation 437/97 subsections 1(7.1), 1(7.2), 1(7.3), 1(14), 1(15), 1(16), 1(17), 1(18), 1(19). The Member further does not contest that the alleged conduct constitutes sexual abuse of a student as defined in section 1 of the Act.

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 Uncontested Facts being presented to the Discipline Committee;

(c) he understands that by pleading no contest 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 Committee can accept the Uncontested Facts as correct, and can accept that those facts constitute professional misconduct.

(e) 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;

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

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

20. The Member provides this plea of no contest pursuant to Rule 3.02 of the Rules of Procedure of the Discipline Committee under protection of the Evidence Act, R.S.O. 1990, chapter E. 23, for the purpose of this proceeding under the Ontario College of Teachers Act 1996, chapter 12, and for no other purpose. The Member’s plea of no contest does not constitute an admission by the Member as to the facts or findings in any other civil, criminal or administrative proceeding.

21. In light of the Uncontested Facts and circumstances, 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 (a) of the Notice of Hearing, namely that the Member contravened subsection 1(5) of Ontario Regulation 437/97, be withdrawn. College Counsel stated that the Panel’s permission to withdraw the allegation was being sought because it was part of the negotiation process and furthermore it was duplicative of the allegation under subsection 1(14). The Panel granted the request.

9Having considered the Statement of Uncontested Facts and Plea of No Contest and the submissions of College Counsel, the Panel rendered an oral decision on August 10, 2020 finding that the Member engaged in acts of professional misconduct as alleged, contrary to Ontario Regulation 437/97, subsections 1(7.1), 1(7.2), 1(7.3), 1(14), 1(15), 1(16), 1(17), 1(18) and 1(19). The Panel also finds that the Member engaged in sexual abuse of a student as defined in section 1 of the Act.

E. REASONS FOR DECISION

10The Member did not contest the facts and exhibits referred to in paragraphs 1 to 16 of the Statement of Uncontested Facts and Plea of No Contest and pleaded no contest to the allegations of professional misconduct against him. He acknowledged and the Panel accepts that the Uncontested Facts constitute professional misconduct under the headings of misconduct set out above. The Uncontested Facts demonstrate that the Member engaged in physical, psychological or emotional, and sexual abuse of a student.

11The Member abused a student physically, contrary to subsection 1(7.1) of Ontario Regulation 437/97 when he touched the Student’s body. The Member pleaded guilty to assault contrary to section 266 of the Criminal Code of Canada where he admitted to touching the Student’s forearms without the Student’s consent. In these proceedings, the Member did not contest that he grabbed the Student’s right breast with his hand and squeezed it for approximately 30 seconds, and that he ran his index finger up and down a vein in the Student’s right bicep. The Member’s unwelcome and intrusive touching of the Student is physically abusive.

12The Member abused a student psychologically or emotionally, contrary to subsection 1(7.2) of Ontario Regulation 437/97, by asking the Student highly personal questions about his physique, looking suggestively at the Student’s body and then making unwelcome comments with sexual innuendo about it that made the Student very uncomfortable. The Member’s comments included: “wow your chest, I can’t believe it” and stated words to the effect of: “oh fuck that’s good. If I had your body I would be very proud” and “I don’t know how chicks are not all over you.” The Student’s victim impact statement (Exhibit 2 at Tab D) described the Member’s violation of trust and indicated that the Member was aware of his vulnerability through his IEP. The Student also described the psychologically and emotionally damaging effects of the Member’s conduct, including: depression and anxiety, a loss of motivation and confidence, and an inability to return to school. The Member’s disrespectful and objectifying remarks to the Student were psychologically and emotionally abusive.

13The Panel finds that the Member’s intrusive touching of the Student’s breast and bicep and comments to the Student about his body, which made the Student feel violated and afraid, were sexually abusive, contrary to subsection 1(7.3) of Ontario Regulation 437/97. This conduct also constitutes sexual abuse of a student as defined in section 1 of the Act, which includes touching of a sexual nature of the student by the member, or behaviour or remarks of a sexual nature by the member towards the student. The Panel also took notice that, for the purpose of the definition of “sexual abuse” of a student in section 1 of the Act, in the case of a student who has special needs, the definition of “student” applies to a student who is under 22 years old.³ The Student was [XXX] years old at the time of the conduct and had special needs (he had a learning disability and was on an IEP). He therefore is a student under the Act.

14By failing to meet the expectations of care, respect, trust and integrity codified in the Ethical Standards for the Teaching Profession at section 32 of the College’s bylaws, the Member’s abusive conduct demonstrates a significant breach of subsection 1(14) of Ontario Regulation 437/97. Among other things, the ethical standards require members to demonstrate their commitment to students’ wellbeing and learning through positive influence and professional judgment (“Care”) and to honour human dignity, emotional wellness and cognitive development of students (“Respect”). The Member’s physically, psychologically or emotionally, and sexually abusive conduct toward the Student is a self-evident breach of the ethical standards.

15The Member’s abusive conduct also contravenes section 264(1)(c) of the Education Act. This provision requires that teachers exemplify the highest regard for a number of virtues including truth, justice, humanity, benevolence and purity. The Member failed to act as an appropriate role model and took advantage of his position of trust and authority as a teacher by physically, psychologically or emotionally, and sexually abusing the Student.

16The Member was convicted of assault in respect of the Student contrary to section 266 of the Criminal Code of Canada. This conviction demonstrates that the Member contravened a law relevant to his suitability to hold a certificate of qualification and registration that makes him unsuitable to occupy the position of trust and authority given to teachers, contrary to subsection 1(16) of Ontario Regulation 437/97.

17The Member’s contravention of the assault provision in the Criminal Code of Canada has also caused the Student who was under the Member’s professional supervision to be put at or to remain at risk, in violation of subsection 1(17) of Ontario Regulation 437/97. The Member’s abuse of the Student put him at risk at the time of the conduct and continues to put the Student at risk. As described in the Student’s victim impact statement (Exhibit 2 at Tab D), the effects of the Member’s actions on the Student include depression, anxiety, loss of work and an inability to complete his high school education.

18The Member’s abusive conduct is disgraceful, dishonourable and unprofessional, contrary to subsection 1(18) of Ontario Regulation 437/97. The public and the teaching profession do not tolerate the abuse of students. The Member’s conduct demonstrates a profound lack of professional judgment and a serious failure to act in the best interest of a student, which is a disgraceful and dishonourable violation of the professional obligations that educators are expected to meet.

19Finally, by engaging in the grossly inappropriate behaviour described above, the Member’s conduct is unbecoming a member of the profession, contrary to subsection 1(19) of Ontario Regulation 437/97. Such disregard for a teacher’s professional obligations undermines the trust that parents, students and the public place in teachers and reflects poorly on the profession as a whole.

F. PENALTY Decision

20The parties agreed to a Joint Submission on Penalty (Exhibit 3), which was presented to the Panel. In an oral decision rendered on August 10, 2020 the Panel accepted the Joint Submission on Penalty and made the following order:

1. The Registrar 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;

2. 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”).

G. REASONS FOR PENALTY DECISION

21The Member’s professional misconduct consisted of or 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.

22The Panel recognizes that it also has the authority to 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 plea of no contest and joint submission on penalty, both of which saved the College time and resources in prosecuting this matter. The Panel recognizes that the test for rejecting a Joint Submission on Penalty is a high one and does not believe that the penalty of revocation and a written reprimand is so unreasonable that it would bring the administration of the discipline process into disrepute or be otherwise contrary to the public interest.

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

Footnotes

1. 1In the Notice of Hearing dated September 30, 2019 the “Student” is referred to as “Student 1”.
2. 2Allegation withdrawn at College Counsel’s request.
3. 3See subparagraph 1(2)1, Ontario College of Teachers Act, 1996, S.O. 1996, c. 12.