Ontario College of Teachers v Brooks 2020 ONOCT 209

Date: 2020-11-30

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

David Jonathan Brooks, OCT, a member of the Ontario College of Teachers.

BETWEEN:

ONTARIO COLLEGE OF TEACHERS

– and –

DAVID JONATHAN BROOKS (REGISTRATION #523507)

PANEL: Tom Potter, Chair

Marlène Marwah

Sara Nouini, OCT

HEARD: November 27, 2020

Zirka Jakibchuk, for the Ontario College of Teachers

Jerry Raso, for David Jonathan Brooks

Erica Richler, 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 of the Peace Creelman, 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 proceeding was heard electronically before a panel of the Discipline Committee (the “Panel”) of the Ontario College of Teachers (the “College”) on November 27, 2020, in accordance with rule 8.01 of the Rules of Procedure of the Discipline Committee and of the Fitness to Practise Committee.

2David Jonathan Brooks (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 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 Student 1.

5The Panel was further informed that an order restricting publication was made by Justice of the Peace Creelman on January 25, 2018 in criminal proceedings before the Ontario Court of Justice. The Panel is required to uphold this publication ban, which was ordered in accordance with section 486.4 of the Criminal Code of Canada (see Exhibit 2 at Appendix C). 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 April 13, 2020 (Exhibit 1) are as follows:

IT IS ALLEGED that David Jonathan Brooks 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 physically, contrary to Ontario Regulation 437/97, subsection 1(7.1);

(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 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);

(f) 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);

(g) 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);

(h) 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:

David Jonathan Brooks 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.
At all material times, the Member was employed by the Dufferin-Peel Catholic District School Board as a teacher at [XXX] School in [XXX], Ontario.
At all material times, Student 1 was a [XXX]-year-old female student and [XXX]. The Member was not Student 1’s teacher and Student 1 did not attend his school.
On or about December 17, 2017, the Member engaged in one brief incident of inappropriate physical contact and sexual contact with Student 1, which included:

(a) hugging Student 1 in an inappropriate manner;

(b) kissing Student 1 on the cheek and lips; and

On or about December 18, 2017, the Member was criminally charged with one count of sexual assault, contrary to section 271 of the Criminal Code (Canada) (the "Code") and one count of sexual exploitation by touching, contrary to section 153(1)(a) of the Code.
On August 23, 2019, the Member pleaded guilty to and was found guilty of sexual assault, contrary to section 271 of the Code. The remaining charge was withdrawn at the request of the Crown.
On the same day, the Member received a conditional discharge and was placed on probation for 12 months. He was also made subject to several ancillary orders.
In sentencing the Member to a conditional discharge, the Honourable Mr. Justice Schwarzl found that:

“1) This was a singular event committed by an otherwise good man.

While the crime was serious and the responsibility of the [Member] very high, it was brief and superficial, falling on the lower end of the scale of similar crimes.
The impact on [Student 1], while real, has not been lasting.
The character of the [Member], his rehabilitative steps, and his family and community support, render it unlikely that he will commit any other crime again.”

The Member did not appeal his guilty finding or sentence.
Attached hereto and marked as Appendix “B” is a certified copy of the Court Information sworn December 19, 2017, appearances/adjournments and disposition in the criminal proceeding.
Attached hereto and marked as Appendix “C” is a certified copy of the transcript of Proceedings during Plea of Guilt and Reasons for Sentence, before Justice Schwarzl, dated August 23, 2019.
Attached hereto and marked as Appendix “D” is a certified copy of the Adult Probation Order dated August 23, 2019.
Attached hereto and marked as Appendix “E” is a certified copy of the Prohibition Order dated August 23, 2019.

GUILTY PLEA

By this document, the Member admits the truth of the facts and exhibits referred to in paragraphs 1-13 above (the “Admitted Facts”).
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), 1(7.2), 1(7.3), 1(15), 1(16), 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.
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 him 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.

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

8Having considered the Agreed Statement of Facts and Guilty Plea and the submissions of College Counsel, the Panel rendered an oral decision on November 27, 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), 1(7.2), 1(7.3), 1(15), 1(16), 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

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. The Admitted Facts demonstrate that the Member engaged in inappropriate physical contact and sexual contact with Student 1, [XXX]. The Member pleaded guilty to and was found guilty of sexual assault of Student 1, contrary to section 271 of the Criminal Code of Canada.

10The Panel finds that the Member failed to maintain the standards of the profession contrary to subsection 1(5) of Ontario Regulation 437/97 by sexually abusing Student 1. The Member made inappropriate physical contact and sexual contact with Student 1, which included hugging Student 1 in an inappropriate manner, kissing Student 1 on the cheek and lips and placing his hand on Student 1’s breast over her clothes. Sexual abuse of a student is a serious breach of the ethical and professional standards of the profession. Misconduct of this nature is so notorious that expert evidence of the standard is not required.

11The Panel finds that the Member breached subsection 1(7.1) of Ontario Regulation 437/97 by making inappropriate physical contact with Student 1. This physically abusive conduct included hugging Student 1 in an inappropriate manner, kissing Student 1 on the cheek and lips and placing his hand on Student 1’s breast over her clothes.

12The Member’s conduct constitutes psychological or emotional abuse of a student contrary to subsection 1(7.2) of Ontario Regulation 437/97. In her victim impact statement (see Exhibit 2, Appendix C at pages 7- 8), Student 1 stated that the actions of the Member made her feel confused and that she was scared to tell anyone, at first, because she was embarrassed and in shock. She further stated that, after a few months, she was still angry with the Member for what he had done to her and [XXX], but she realized that these feelings were only causing her more pain, so she forgave him. Although the victim impact statement shows that the Member’s conduct may not have had a lasting impact on her, the Panel finds that the Member’s conduct was nevertheless psychologically or emotionally abusive. By sexually abusing Student 1, the Member showed a complete disregard for her well-being and his conduct had a negative impact on her during a difficult period of her [XXX] life.

13The Member’s conduct constitutes sexual abuse of a student contrary to subsection 1(7.3) of Ontario Regulation 437/97 and as defined in section 1 of the Act. 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. Although Student 1 was not the Member’s student, she meets the definition of a student for the purposes of a sexual abuse finding, as set out at section 1(2) of the Act (see e.g., Ontario College of Teachers v. Norton, 2019 ONOCT 51). The Member sexually abused Student 1 by hugging her inappropriately, kissing her on the cheek and lips and placing his hand on her breast over her clothes. This finding is further supported by the fact that the Member was found guilty of sexual assault of Student 1 in his prior criminal proceedings.

14The 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. Among other things, this provision requires teachers to demonstrate the highest regard for a number of virtues including purity, temperance and all other virtues. Members are expected to serve as positive role models and to safeguard the well-being and safety of students. By sexually assaulting Student 1, [XXX], while he was under the influence of alcohol (Exhibit 2, Appendix C at pages 46-47), the Panel finds that the Member’s conduct was entirely at odds with his obligations as a teacher. The Panel agrees with Justice Schwarzl’s Reasons for Sentence at page 46 that, “…this was a spontaneous act that both sadly and troublingly revealed the prurient desire which he [the Member] had [XXX] to never ever manifest.”

15The Panel finds that the Member’s prior finding of guilt for sexually assaulting 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. The teaching profession does not tolerate the sexual abuse of students by members and this type of criminal conduct clearly relates to a member’s suitability to hold a teaching certificate.

16The Member’s misconduct is disgraceful, dishonourable or unprofessional contrary to subsection 1(18) of Ontario Regulation 437/97. It is completely unacceptable for members of the teaching profession to abuse their position of trust and authority by engaging in inappropriate physical and sexual contact of students. Members of the teaching profession are expected to be positive role models for young people at all times. By sexually abusing Student 1, the Member’s conduct was clearly disgraceful, dishonourable, and demonstrated a lack of professional judgment.

17The Member’s abusive conduct which led to a criminal finding of guilt, 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 eroded when members of the profession sexually abuse students.

F. PENALTY DECISION

18The parties agreed to a Joint Submission on Penalty (Exhibit 3), which was presented to the Panel. In an oral decision rendered on November 27, 2020, the Panel accepted the Joint Submission on Penalty and made the following order:

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

G. REASONS FOR PENALTY DECISION

19The 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. The Panel finds it reasonable not to make these additional orders given that the College is not seeking costs in light of the Member’s guilty plea and the joint submission on penalty, and given the mitigating factors described in the Reasons for Sentence of Justice Schwarzl (Exhibit 2, Appendix C at pages 47-49).

20The Panel denounces the Member’s misconduct in the strongest terms.

Date: November 30, 2020

Tom Potter

Chair, Discipline Panel