DISCIPLINE COMMITTEE OF THE ONTARIO COLLEGE OF TEACHERS
Ontario College of Teachers v Tchuente 2020 ONOCT 182
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
Christian Hervé Tchuente, a member of the Ontario College of Teachers.
BETWEEN:
ONTARIO COLLEGE OF TEACHERS
– and –
CHRISTIAN HERVÉ TCHUENTE (REGISTRATION #626957)
PANEL: Marlène Marwah, Chair Sara Nouini, OCT Stéphane Vallée, OCT
HEARD: May 13, 2020
Christine Lonsdale and Caroline Humphrey, for the Ontario College of Teachers Chantal Beaupré, for Christian Hervé Tchuente Renée Kopp, 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.
1This matter was heard before a panel of the Discipline Committee (the “Panel”) on May 13, 2020. With the consent of the parties and in accordance with section 3 of the Hearings in Tribunal Proceedings (Temporary Measures) Act, S.O. 2020, c. 5, Sched. 3, the hearing was conducted electronically.
2Christian Hervé Tchuente (the “Member”) attended the hearing and 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. ORDER OF NON-PUBLICATION
3The Committee handed down a mandatory order of non-publication pursuant to subsection 32.1(3) of the Ontario College of Teachers Act, 1996 (the “Act”) directing that 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.
B. THE ALLEGATIONS
4The allegations against the Member in the Notice of Hearing dated February 7, 2019 (Exhibit 1) are as follows:
IT IS ALLEGED that Christian Hervé Tchuente 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);1
(b) he failed to comply with the Act or the regulations or the by-laws, contrary to Ontario Regulation 437/97, subsection 1(14);
(c) 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);
(d) 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);2
(e) 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);
(f) he engaged in conduct unbecoming a member, contrary to Ontario Regulation 437/97, subsection 1(19).
C. AGREED STATEMENT OF FACTS
5College Counsel presented the Panel with the parties’ Agreed Statement of Facts and Guilty Plea (Exhibit 2), which provides the following:
The Member is a member of the College. Attached as Exhibit “A” is a copy of the Ontario College of Teachers Registered Member Information with respect to the Member.
At all material times, the Member was employed by the Conseil des écoles catholiques du Centre-Est de l’Ontario (the “Board”) as a certified occasional teacher.
In September 2013, the Member was assigned to a certified long-term occasional teaching position at [XXX] (the “School”) in [XXX], Ontario.
The Board supplied the Member with a laptop computer. The loan of the laptop was governed by Administrative Directive ADM-36 – Loan of IT and Media Equipment. Attached as Exhibit “B” is a copy of the Administrative Directive.
On February 15, 2017, in response to a request for laptop screen repair, the IT Department technician went to the Member’s Physical Education class to pick up his laptop for repairs. The technician went back to his office to perform the inspection. When he opened the laptop and entered the general password, he noticed that several internet tabs were open at dating sites and displayed explicit online chats. The Member’s own Google Drive included pornographic videos. The Member’s laptop was in his office where the students could access it.
On March 23, 2017, the Board met with the Member to hear his account of the facts. The Member confirmed that he had used the laptop for personal purposes, including accessing dating sites and pornographic videos.
A week later, the Board sent a letter to the Member advising that it would be withdrawing his name permanently from the Board’s list of certified occasional teachers. Attached as Exhibit “C” is a copy of the Board’s letter dated March 30, 2017.
GUILTY PLEA
By this document, the Member admits the truth of the facts and exhibits referred to in the paragraphs above (the “Admitted Facts”).
The Member acknowledges that the Admitted Facts described above constitute professional misconduct and admits to the allegations of professional misconduct against him, being more particularly breaches of Ontario Regulation 437/97, subsections 1(14), 1(15), 1(18) and 1(19).
The Member states that he:
(a) understands fully the nature of the allegations of professional misconduct 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 Professionally Speaking/Pour parler profession, the official publication of the College;
(e) understands that any agreement between him and College Counsel with respect to penalty does not bind the Discipline Committee;
(f) understands and acknowledges that he is executing this Agreement voluntarily, unequivocally and with the advice of legal counsel.
- In light of the Admitted Facts described above and the Guilty Plea, the College and the Member submit that the Discipline Committee find the Member guilty of professional misconduct.
D. DECISION
6Counsel for the College requested that the allegations of professional misconduct outlined in paragraphs (a) and (d) of the Notice of Hearing, namely that the Member contravened subsections 1(5) and 1(16) of Ontario Regulation 437/97, be withdrawn. College Counsel sought permission from the Discipline Panel to withdraw allegation 1(5) because it duplicated allegation 1(14), and to withdraw allegation 1(16) because it could not be proven. The Panel granted these requests.
7Having considered the Agreed Statement of Facts and Guilty Plea and the submissions of the parties, the Panel rendered an oral decision on May 13, 2020, finding that the Member engaged in acts of professional misconduct as alleged, contrary to Ontario Regulation 437/97, subsections 1(14), 1(15), 1(18) and 1(19).
E. REASONS FOR DECISION
8The Member admitted the truth of the facts and exhibits referred to in paragraphs 1 to 7 of the Agreed Statement of Facts and Guilty Plea. He acknowledged and the Panel accepts that the Admitted Facts constitute professional misconduct under the headings of misconduct set out above.
9The Admitted Facts demonstrate that the Member failed to comply with the Act or the regulations or the by-laws, contrary to Ontario Regulation 437/97, subsection 1(14). The Member failed to comply with the Ethical Standards for the Teaching Profession, which are set out in section 32.02 of the bylaws. The standards include a requirement for members to exercise integrity at all times in all of their activities and professional responsibilities (“Integrity”), which the Member failed to do when he contravened the rules for using IT and media equipment, contrary to his Board’s Administrative Directive ADM-36. It is utterly inappropriate to use a school board’s computer for personal purposes, and falls short of the professional standards. Members of the teaching profession are required to use media equipment loaned by the employer strictly for work purposes.
10The Member 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). One requirement of this section of the Act is that teachers act as a role model for students at all times, which the Member failed to do. He used a laptop loaned by his school to access dating sites and post highly private, personal messages on them. In addition, pornographic videos saved on his own cloud-computing space (in Google Drive) were accessed from his work computer. The Member’s laptop was in his office where his students could have accessed this content.
11By using his work computer for inappropriate personal purposes, the Member 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). The Member’s actions as described above are indicative of poor professional judgement.
12Similarly, the Member engaged in conduct unbecoming a member, contrary to Ontario Regulation 437/97, subsection 1(19). His conduct damaged the reputation of the teaching profession.
F. PENALTY DECISION
13The parties agreed to a Joint Submission on Penalty (Exhibit 3), which was presented to the Panel. In an oral decision rendered on May 13, 2020, the Panel accepted the Joint Submission on Penalty and made the following order:
The Member is directed to appear before the Discipline Committee immediately following the hearing to receive a reprimand which will be delivered in person at the offices of the Ontario College of Teachers, 101 Bloor Street West, Toronto, Ontario, or electronically, which fact is to be recorded on the Register;
The Registrar is directed to suspend the Member’s Certificate of Qualification and Registration for a period of eight (8) months, as of the 15th calendar day following the oral decision of the Discipline Committee in this matter, which fact is to be recorded on the Register.
The Registrar is directed to impose the following conditions or restrictions on the Member’s Certificate of Qualification and Registration, which will be recorded on the Register:
(a) Within 90 days of the date of the Order of the Discipline Committee, the Member shall enrol in and successfully complete, at his own expense, a course of instruction pre-approved by the Registrar regarding professional ethics, including the responsible use of technology in the professional setting, subject to the following conditions:
(i) the Member will provide to a course practitioner approved by the Registrar a copy of the Agreed Statement of Facts and Guilty Plea and Joint Submission on Penalty documents made exhibits at the hearing of this matter, and the Decision and Reasons of the Discipline Committee;
(ii) upon review of the documents noted at paragraph (i) above, the course practitioner will provide to the Registrar, for approval, a syllabus for the proposed course which specifically addresses the Discipline Committee’s concerns regarding the Member’s professional misconduct. The syllabus proposed by the course practitioner shall also specify the length of the course to be undertaken by the Member, and outline the goals of the course;
(b) Within 30 days of his completion of the course outlined in (a), above, the Member shall provide to the Registrar a written report from the course practitioner:
(i) stating that the Member has successfully completed the course and reporting on the progress of the Member with respect to addressing the outlined goals of the course.
G. REASONS FOR PENALTY DECISION
14The 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 the parties: Ontario College of Teachers v. Uhlman, 2018 ONOCT 67, Ontario College of Teachers v. Lavigne, 2015 ONOCT 49, Ontario College of Teachers v. Vandermeer, 2014 ONOCT 108 and Ontario College of Teachers v. Orman, 2009 ONOCT 41.
15The Panel considered the Member’s circumstances in comparison to the cases provided, and finds no aggravating factors in the Member’s case. In terms of mitigating factors, the Member admitted his misconduct, saving the time and expense of a contested hearing, and there is no evidence that the students viewed the contents of the Member’s computer. After weighing these factors, the Panel accepts that the penalty proposed by the parties is reasonable.
16The Panel finds that the Member’s inappropriate conduct warrants a reprimand by his peers. The Member demonstrated extremely poor professional judgement by recording pornographic videos and conducting highly private chats on an employer-loaned computer. 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.
17Given the seriousness of the Member’s conduct, the Panel finds that an eight-month suspension is reasonable and appropriate. While the cases presented are factually distinct from this case, the misconduct represented in those cases is of a similar underlying nature and confirms that such a lengthy suspension is justified. Members hold a unique position of trust and authority. By accessing dating sites, sending personal and highly private messages and accessing pornography from his work computer, the Member exposed his students to the risk of viewing its contents. His conduct undermines the trust of members of the public and of the teaching profession. The suspension will serve as a specific deterrent to the Member and a general deterrent to other members of the profession, making clear that the kind of misconduct the Member exhibited is unacceptable.
18The Panel finds that the course on professional ethics, including the responsible use of technology in the professional setting, will contribute to the Member’s rehabilitation process. It will remind him of his professional obligations and will help him to make better decisions as a teacher.
19The Panel is satisfied that the penalty is appropriate in the circumstances and meets the principle of serving and protecting the public interest.
May 15, 2020
Marlène Marwah, Chair, Discipline Panel
Sara Nouini, OCT Member, Discipline Panel
Stéphane Vallée, OCT Member, Discipline Panel