DISCIPLINE COMMITTEE

OF THE ONTARIO COLLEGE OF TEACHERS

Citation: Ontario College of Teachers v Schacter 2020 ONOCT 226

Date: 2020-04-30

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

Joseph Stephen Schacter, a member of the Ontario College of Teachers.

BETWEEN:

ONTARIO COLLEGE OF TEACHERS

– and –

JOSEPH STEPHEN SCHACTER (REGISTRATION #177586)

PANEL: Tom Potter, Chair

Irene Dembek, OCT

Sara Nouini, OCT

HEARD: March 10, 2020

Jason Bennett, for the Ontario College of Teachers

No one appearing for Joseph Stephen Schacter

Erica Richler, 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 Justice D.L. Corbett 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 March 10, 2020 at the Ontario College of Teachers (the “College”).

2Joseph Stephen Schacter (the “Member”) did not attend the hearing and did not have legal representation.

3Counsel for the College submitted the Affidavit of Service of Tatiana Tkatch (Exhibit 3) sworn on February 10, 2020 and the Affidavit of Tatiana Tkatch (Exhibit 4) sworn on February 27, 2020. In these affidavits, Ms. Tkatch, a law clerk at the College, outlines the College’s communications with the Member’s former counsel and with the Member’s mother and provides proof of service of all required documents.

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 that he was aware of the time and date of the hearing and the penalty being sought by the College. The Member did not appear and the Panel heard this matter in his absence.

5Following the hearing, the Panel found that the Member committed professional misconduct. The Panel ordered that the Member receive a reprimand and that his Certificate of Qualifications and Registration be revoked. The following are the reasons for the Panel’s decision.

A. PUBLICATION ban

6The 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.

7Additionally, the Panel received a certified copy of the transcript of sentencing proceedings from the Member’s criminal proceeding before Justice D.L. Corbett dated August 28, 2019. 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

8The allegations against the Member in the Notice of Hearing dated February 4, 2020 (Exhibit 1) are as follows:

IT IS ALLEGED that Joseph Stephen Schacter is guilty of professional misconduct as defined in the Act in that he:

(a) failed to strive at all times to achieve and maintain the highest degree of professional competence and to uphold the honour, dignity, and ethical standards of the teaching profession, contrary to section 13 (General Duties of Members) of the Regulation made under section 12 of the Teaching Profession Act, R.S.O. 1980, c. 495, as amended (the “TPA Regulation”);

(b) failed to show consistent justice and consideration in all his relations with pupils, contrary to subsection 14(d) of the TPA Regulation;

(c) failed to concern himself with the welfare of his pupils while they were under his care, contrary to subsection 14(f) of the TPA Regulation;

(d) failed to comply with subsection 235(1)(c) (Duties of a Teacher) of the Education Act, R.S.O. 1980, c. 129, as amended;

(e) failed to maintain the standards of the profession, contrary to Ontario Regulation 437/97, subsection 1(5);

(f) 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) 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);

(h) 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);

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

(j) engaged in a prohibited act involving child pornography as defined in section 1 of the Act.¹

PARTICULARS OF THESE ALLEGATIONS ARE AS FOLLOWS

1. Joseph Stephen Schacter is a member of the Ontario College of Teachers.

2. The Member obtained an Ontario Teacher’s Certificate on June 30, 1986 and a Certificate of Qualification and Registration from the College on May 20, 1997.

3. The Member has held either an Ontario Teacher’s Certificate or a Certificate of Qualification and Registration continuously since June 30, 1986.

4. On March 28, 2013, the Member’s membership status with the College was changed to “Retired”.

5. At all material times, the Member was employed as an [XXX]school teacher, first by [XXX]and then by[XXX], both [XXX]schools in Toronto, Ontario (the “Schools”).

Child Pornography Conviction²

6. On November 6, 2015, the Member used a publicly accessible computer at an Employment and Social Services office at [XXX]in Toronto to view images of young boys in various states of undress. The images were stored on a USB device that the Member had brought with him.

7. Staff of the Employment and Social Services office asked the Member to leave the premises and reported the incident to the Toronto Police Service (the “Police”).

8. Following this incident, the Police executed a search warrant at the Member’s home on December 16, 2015. During this search, the Police discovered three USB storage devices on which thousands of images of young boys were found, including 148 images that met the definition of child pornography in the Criminal Code (Canada).

9. On December 16, 2015, the Member was arrested and charged with possession of child pornography, contrary to section 163.1(4) of the Criminal Code (Canada).

10. On May 31, 2018, Justice Susan M. Chapman of the Ontario Superior Court of Justice found the Member guilty of possession of child pornography.

11. On March 25, 2019, Justice Chapman sentenced the Member to a six-month custodial sentence to be followed by three years of probation. Justice Chapman also imposed conditions that restrict the Member’s ability to teach and made a number of ancillary orders.

Gross Indecency, Sexual Assault & Sexual Interference Convictions

12. On February 24, 2016, the Member was arrested and charged with gross indecency, sexual assault, sexual interference and sexual exploitation involving three male students of the Schools between March 8, 1982 and June 30, 1993.

13. By the time of trial, the Member had been indicted on one count of gross indecency, contrary to section 157 of the Criminal Code (Canada); three counts of sexual assault, contrary to section 271 of the Criminal Code (Canada); and two counts of sexual interference, contrary to section 151 of the Criminal Code (Canada), involving four students of the Schools between March 8, 1982 and June 30, 2002.

14. On November 16, 2018, Justice D.L. Corbett of the Ontario Superior Court of Justice found the Member guilty on all six counts.

15. On September 13, 2019, Justice Corbett sentenced the Member to five years and three months in custody and made a number of ancillary orders.

9Counsel for the College requested that the allegation of professional misconduct outlined in paragraph (j) of the Notice of Hearing, namely that the Member engaged in a prohibited act of child pornography contrary to section 1 of the Act (and all particulars associated with that allegation) be withdrawn. College Counsel stated that the Panel’s permission to withdraw the allegation was being sought because the Member’s conviction related to child pornography is under appeal and as such, the College could not rely on the conviction as proof that the Member committed the misconduct. The Panel granted this request.

C. THE MEMBER’S PLEA

10As 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

11College Counsel entered into evidence the Registered Member Information for Joseph Stephen Schacter (Exhibit 2), which indicates the status history of the Member’s teaching certificates. The Member obtained an Ontario Teacher’s Certificate in June 1986 and a Certificate of Qualification and Registration in May 1997. The Member retired from teaching in March 2013 and his status was changed to “Retired” at that time.

12The College also entered into evidence a Brief of Court Documents – Her Majesty the Queen v. Joseph Stephen Schacter (Exhibit 5), which contains the following documents:

1. Certified Copy of Superior Court of Justice Indictment dated July 17, 2017;

2. Copy of the Judgement of Justice D.L. Corbett of the Superior Court of Justice dated April 1, 2019;

3. Certified Copy of the Transcript of Sentencing Submissions before Justice D.L. Corbett in the Superior Court of Justice, dated August 28, 2019; and

4. Transcript of Reasons for Sentence of Justice D.L. Corbett in the Superior Court of Justice, dated September 13, 2019.

13The evidence presented in Exhibit 5 establishes that on April 1, 2019, in the Superior Court of Justice, the Member was found guilty of three counts of sexual assault, two counts of sexual interference, and one count of gross indecency in relation to four of his former students contrary to sections 271, 151, and 157 the Criminal Code. On September 13, 2019, the Court stayed two of the sexual assault convictions and the Member was sentenced to 5 years and 3 months of incarceration. He was also made subject to a number of ancillary orders. The Member did not appeal these convictions or the sentence.

E. SUBMISSIONS ON FINDING

14College Counsel submitted that the Member was under the jurisdiction of the Discipline Committee for all misconduct that occurred after he received his Ontario Teacher’s Certificate in 1986. As a Teacher’s Certificate holder, the Member was under the jurisdiction of the Teaching Profession Act and the Education Act. Further, the Member was subject to the Ontario College of Teachers Act after he obtained his Certificate of Qualification and Registration in 1997.

15College Counsel further submitted that the Member continuously remained under the College’s jurisdiction for discipline purposes after he retired from teaching. According to College Counsel, the Member’s status – “Retired” – is a courtesy status offered by the College, and he continued to hold his Certificate even after retirement. As such, he continued to be a member for the purposes of the Panel’s jurisdiction after retirement. Prior to this hearing, the Member has neither resigned his certificate nor has it been revoked. Therefore, at the time of the hearing he was a member of the College pursuant to the Act.

16College Counsel submitted that the Member’s sexual assault of his former students and the resultant criminal convictions provided a sufficient basis to justify findings of professional misconduct under all of the heads of misconduct alleged in the Notice of Hearing (other than those withdrawn by College Counsel).

17Finally, College Counsel submitted that, by sexually assaulting four of his former students, the conduct of the Member was so notorious that it clearly failed to meet the standards of the profession contrary to Ontario Regulation 437/97 subsection 1(5) and section 13 of the TPA Regulation. As such, the College was not required to provide expert evidence regarding the standard pursuant to Novick v. Ontario College of Teachers, 2016 ONSC 508.

F. DECISION ON FINDING

18Having considered the evidence, onus and standard of proof, and the submissions made by College Counsel, the Panel rendered an oral decision on March 10, 2020 finding that the Member engaged in acts of professional misconduct as alleged, contrary to Ontario Regulation 437/97, subsections 1(5), 1(16), 1(17), 1(18), and 1(19), sections 13, 14(d), and 14(f) of the TPA Regulation and subsection 235(1)(c) of the Education Act, 1980.

G. REASONS FOR DECISION

(1) Factual Findings

19In accordance with Section 22.1 of the Evidence Act (Ontario), R.S.O. 1990, c. E. 23 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 as proof, in this case, that the Member committed the criminal offences outlined therein. The Member was found guilty and convicted of six counts of sexual improprieties before the Ontario Superior Court of Justice, these convictions have not been appealed, and the time for an appeal has expired.

20In 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 involving the Member contained in the Judgement and the Reasons for Sentence of Justice D.L. Corbett of the Ontario Superior Court of Justice. The Panel further admits the transcripts of sentencing proceedings before Justice Corbett for the purposes of explaining the reasons for sentence.

21Based on the evidence contained within the Brief of Court Documents, the College has proven on a balance of probabilities that the Member engaged in sexual touching of four of his former students, while they were his students and under his supervision. The youngest student was [XXX] years old at the time of the assault, and the oldest was between [XXX] and [XXX] years old.

22The Member began his teaching career as a part-time substitute teacher in private [XXX]schools, for which a teaching certificate was not required. In 1986, after obtaining an Ontario Teacher’s Certificate, the Member started teaching full time as a [XXX]school teacher at [XXX]School, a [XXX]school. The Member taught there until his retirement in 2013. Justice Corbett found that, during his teaching career, the Member sexually assaulted four of his students. In his judgment, Justice Corbett refers to the students by the pseudonyms “Adam”, “Bobby”, “Charles”, and “David”. For the sake of consistency with Justice Corbett’s findings the Panel will do the same throughout this decision.

23The Member taught Adam as a [XXX]teacher beginning in 1980. When Adam was [XXX] years old, the Member had Adam over to his house, which was not unusual for teachers at the school at the time. While at his home, the Member forced Adam to masturbate him. Between 1982 and 1984, the Member continued to invite Adam to his home, where the Member touched him sexually on numerous other occasions. The conduct only stopped after Adam changed schools in September of 1984. The Member was convicted of gross indecency with respect to his conduct with Adam.

24The Member was Bobby’s grade [XXX]teacher at the [XXX]School during the 1988/1989 academic year. Bobby was [XXX]years old at the time. Sometime during the school year, the Member had Bobby over to his house as a reward for good behaviour in the classroom. While at the Member’s home, the Member asked Bobby to sit on his lap, rubbed Bobby’s legs, attempted to put his hand in Bobby’s pants, and momentarily touched his penis. Bobby was “freaked out” by the experience and did not return to the Member’s home. The Member was convicted of sexual assault with respect to his conduct with Bobby.

25The Member was an assistant teacher in Charles’ grade [XXX] class at the [XXX]School during the 1989/1990 academic year. The Member also worked in the [XXX]and had supervisory duties during lunch and recess. In late 1992 or early 1993, when Charles was [XXX] years old and in grade[XXX], Charles fell in a puddle during recess and went inside the school to dry off. Charles encountered the Member in the washroom, where the Member put his hands down Charles’ pants to check and see whether his pants were wet on the inside. During this incident, the Member touched Charles’ buttocks and his penis. The Member was convicted of sexual assault and sexual interference with respect to his conduct with Charles; the sexual assault count was stayed.

26The Member was David’s grade [XXX] [XXX] teacher at the [XXX]School during the 2001/2002 academic year. David was approximately [XXX]years old when the Member was his teacher. As a teacher, the Member’s practice was to ask students to go up to his desk to have their work reviewed. On several occasions while David went up to the Member’s desk, the Member put his hand under David’s shirt and massaged his back. He also moved his hand down into David’s pants and touched David’s buttocks. The Member was convicted of sexual assault and sexual interference with respect to his conduct with David; the sexual assault count was stayed.

27The Panel accepts as fact the finding of Justice Corbett that the Member “engaged in a pattern of abusing young boys by touching them on the back, the buttocks, and the penis. He took advantage of his position as a [XXX] school teacher to gain access to these young boys” (Exhibit 5, Tab 5, at para. 251).

(2) Legal Conclusions

(i) Jurisdiction

28As a threshold issue, the Panel finds that it has jurisdiction over discipline proceedings against the Member for conduct that occurred while the Member had either an Ontario Teacher’s Certificate or a Certificate of Qualification and Registration, including conduct that occurred after the Member had retired from teaching. The Panel finds that, by retiring, the Member did not cancel his certificate. Similarly, the Member’s certificate did not expire and was not revoked by retirement.

29Section 14 of the Act states:

14 (1) Every person who holds a certificate of qualification and registration is a member of the College, subject to any term, condition or limitation to which the certificate is subject.

(2) A member may resign his or her membership by filing a resignation in writing with the Registrar.

(3) The certificate of qualification and registration of a person who files a resignation is cancelled.

(4) A certificate of qualification and registration that expires in accordance with the regulations is cancelled.

(5) A person whose certificate of qualification and registration is revoked or cancelled continues to be subject to the jurisdiction of the College for professional misconduct, incompetence or incapacity referable to any time during which the person held,

(a) a certificate of qualification and registration under this Act; or

(b) an Ontario Teacher’s Certificate or a letter of standing as a teacher under the Education Act.

30A plain reading of the section suggests that a membership can only cease through resignation, expiration, revocation, or cancellation. “Retirement” is not a recognized status of membership in section 14 or in the Act generally. Moreover, there is nothing in the Act to suggest that membership can be cancelled or otherwise end by a member’s retirement. As such, the Panel accepts College Counsel’s submission and finds that “Retired” is a courtesy status provided by the College to members who have retired from their teaching positions and does not result in their certificate being suspended or revoked. A member whose status is listed as “retired” is deemed to hold a Certificate of Qualification and Registration and is under the jurisdiction of the College for the purposes of adjudicating allegations of professional misconduct, incompetence or incapacity. As such, the Panel finds that the Member was subject to the jurisdiction of the College for professional misconduct for all conduct that occurred while he held a Teacher’s Certificate or a Certificate of Qualification and Registration, including conduct that occurred when his status was marked as “Retired” by the College.

(ii) Professional Misconduct

31The 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: sections 13, 14(d) and 14(f) of Regulation 63/55 made under the Teaching Profession Act, 1980, subsection 235(1)(c) of the Education Act, 1980, and subsections 1(5), 1(16), 1(17), 1(18) and 1(19) of Ontario Regulation 437/97.

32The relevant sections of the TPA Regulations state:

13. A member shall strive at all times to achieve and maintain the highest degree of professional competence and to uphold the honour, dignity, and ethical standards of the teaching profession.

14. A member shall

(d) show consistent justice and consideration in all his relations with pupils,

[…], and

(f) concern himself with the welfare of his pupils while they are under his care.

33The Panel finds that the Member contravened sections 13, 14(d), and 14(f) of the TPA Regulation with respect to his sexual assault of Bobby and Charles. These offences occurred between 1988 and 1994, while the Member held an Ontario Teacher’s Certificate and was bound to follow the Teaching Profession Act and its regulations. By his sexual abuse of his students, the Member acted dishonourably and clearly failed to uphold the honour, dignity and ethical standards of the teaching profession. Additionally, the Member failed to show consideration towards his students, and certainly failed to concern himself with his students’ welfare.

34The Panel finds that the Member contravened section 235(1)(c) of the Education Act, 1980 with respect to his misconduct in relation to Bobby and Charles. Section 235(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.” The Member’s conduct breached this provision, which is commonly understood to mean that teachers must act as positive role models. Members hold a unique position of trust and authority. They are responsible for the well-being and development of children. It is alarming for teachers to sexually assault their young students. The Member’s conduct in this case was entirely at odds with his obligations as a member of the profession.

35The Panel finds that the Member contravened subsection 1(5) of Ontario Regulation 437/97 in relation to his sexual assault of David. The misconduct against David occurred in the 2001/2002 academic year, while the Member held a Certificate of Qualification and Registration. Engaging in sexual assault of a young student is a clear breach of the ethical and professional standards of the profession. The Panel accepts College Counsel’s submission that the Member’s behaviour is so notorious that expert evidence of the standard is not required.

36The Panel finds that the Member contravened subsections 1(16) and 1(17) of Ontario Regulation 437/97 in relation to his criminal convictions. These convictions occurred in April 2019, while the Member was retired, but still under the jurisdiction of the College for discipline purposes. The Member’s criminal convictions for gross indecency, sexual assault and sexual interference demonstrate that the Member contravened a law relevant to his suitability to hold a Certificate of Qualification and Registration, and which has caused a student under the Member’s supervision to be put at risk.

37The Member’s misconduct is also disgraceful, dishonourable, unprofessional and unbecoming a member, contrary to subsections 1(18) and 1(19) of Ontario Regulation 437/97. Members are expected to create a safe learning environment for students, and not to exploit their position for their own sexual gratification. The public’s trust in the teaching profession is eroded when members abuse their position of trust and authority to sexually abuse their young and vulnerable students.

H. SUBMISSIONS ON PENALTY

38Counsel for the College submitted that revocation of the Member’s certificate of qualification and registration is an appropriate penalty, considering the gravity of the Member’s misconduct. According to College Counsel, this is an egregious case of sexual abuse, where the Member demonstrated a complete disregard for children’s well-being through his repeated targeting of young children. The Member exploited his position of trust and authority as a teacher and a leader in the community. Revocation is appropriate in such serious matters as this.

39College Counsel referred the Panel to two cases involving historic sexual abuse by a member: Ontario College of Teachers v. Brown, 2007 ONOCT 8 and Ontario College of Teachers v. Palmer, 2019 ONOCT 112. College Counsel submitted that the misconduct in these cases was similar to the Member’s case and that these cases demonstrate that a reprimand and revocation are appropriate in cases of historic sexual abuse. College Counsel submitted that these cases indicate that the penalty sought in this matter is within a reasonable range.

I. PENALTY DECISION

40On March 10, 2020, 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

41In 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 sexual abuse of multiple young students, 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 similar cases before the Discipline Committee, as presented by College Counsel.

42Revocation is the appropriate order given the circumstances. The Member sexually abused several very young students on numerous occasions and the Panel does not tolerate this type of conduct. The students were vulnerable and the Member took advantage of his position of trust and authority for his own sexual gratification.

43The Panel received concerning evidence about the impact that the Member’s conduct had on his students, even decades later. The students reported that they had long-lasting issues with anxiety, depression, anger, relationship breakdown, and addiction in the years following the abuse. The students were clearly traumatized by the Member’s conduct.

44There is no place in the profession for members who sexually abuse students. The public expects that children will be safe when they are at school. Teachers are entrusted with the care of students. They must provide students with a physically and emotionally safe learning environment. They must never make sexual advances or touch students in a sexual manner. Revocation is the only penalty that appropriately responds to professional misconduct of this nature and gravity. The Member’s conduct undermined the reputation of the teaching profession and 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.

45The Panel is satisfied that the penalty is appropriate in the circumstances and meets the principle of serving and protecting the public interest.

Footnotes

1. 1Allegation withdrawn at the request of College Counsel.
2. 2Particulars 6-11 withdrawn at the request of College Counsel.