DISCIPLINE COMMITTEE OF THE ONTARIO COLLEGE OF TEACHERS

Citation: Ontario College of Teachers v Turner 2021 ONOCT 27

Date: 2021-03-29

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 Keith Turner, a member of the Ontario College of Teachers.

BETWEEN:

ONTARIO COLLEGE OF TEACHERS

– and –

JOSEPH KEITH TURNER (REGISTRATION #245305)

PANEL: Stéphane Vallée, OCT, Chair Élaine Legault Marlène Marwah

HEARD: March 25, 2021

Danielle Miller, for the Ontario College of Teachers

Mark Wright, for Joseph Keith Turner

Julie Maciura, 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 proceeding was heard electronically before a panel of the Discipline Committee (the “Panel”) of the Ontario College of Teachers (the “College”) on March 25, 2021, in accordance with rule 8.01 of the Rules of Procedure of the Discipline Committee and of the Fitness to Practise Committee.

2Joseph Keith Turner (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. 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.

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 Joseph Keith Turner 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 abused a student or students physically, contrary to Ontario Regulation 437/97, subsection 1(7.1);

(c) he failed to supervise adequately a person who is under the professional supervision of the member, contrary to Ontario Regulation 437/97, subsection 1(11);

(d) he failed to comply with the Act or the regulations or the by-laws, contrary to Ontario Regulation 437/97, subsection 1(14);

(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 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);² and

(g) 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:

1. Joseph Keith Turner 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 Toronto District School Board (the “Board”) as a teacher at [XXX] School (the “School”), in Toronto, Ontario.

3. At all material times, Student 1 was a Grade [XXX] male student at the School.

4. On or about October 13, 2016, the Member was assigned to recess supervision duty in the school yard. Several grade [XXX] and [XXX] boys climbed up a tree in the school yard and were told by another teacher to stop and come down. The students ignored these requests and the other teacher left to supervise a different area.

5. The Member repeated the request for the students to climb down from the tree, which they ignored and responded by calling the Member disrespectful names.

6. Student 1 continued to defy the Member. In an effort to stop the Student from continuing his behaviour, the Member engaged in inappropriate physical contact with the Student by taking hold of the hood of his sweatshirt to control his movements. This had the effect of “choking” the Student as he tried to get away.

7. As a result of the above incident, the Member received a Letter of Discipline from the Board dated December 8, 2016. The Member was suspended for 5 days without pay, required to review Board Policy PR 560 (Child Abuse and Neglect), Ontario College of Teachers Ethical Standards and the Standards of Practise for the Teaching Profession, and Board Policy PR 585 (Code of Conduct). Attached hereto and marked as Exhibit “B” is a copy of the Board’s correspondence dated December 8, 2016.

8. The Member received a further letter from the Board dated January 16, 2017, confirming the 5-day suspension (subsequently reduced to 2 days). Attached hereto and marked as Exhibit “C” is a copy of the Board’s correspondence to the Member dated January 16, 2017.

Prior Conduct History

9. The Member was before the Ontario College of Teachers Investigation Committee on or about November 16, 2011. The Member allegedly pushed a [XXX]-year-old student. Attached hereto and marked as Exhibit “D” is a copy of the Decision of the Investigation Committee dated July 23, 2013.

10. On or about February 24, 2015, the Member grabbed and/or held a female Student’s injured arm. Attached hereto and marked as Exhibit “E” is a copy of the Decision of the Ontario College of Teachers Discipline Committee dated April 24, 2019.

GUILTY PLEA

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

12. 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(7.1), 1(11)³, 1(14), 1(15), 1(18), and 1(19).

13. 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 otherwise 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 does not bind the Discipline Committee;

(f) he understands and acknowledges that he is executing the Agreed Statement of Facts and Guilty Plea voluntarily, unequivocally, and having had the opportunity to obtain the advice of legal counsel.

14. In light of the Admitted Facts and the 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

6Counsel 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) be withdrawn. College Counsel stated that the Panel’s permission to withdraw subsection 1(5) was being sought as proceeding under both subsections 1(5) and 1(14) would be duplicative. In relation to subsection 1(11) of Ontario Regulation 437/97, College Counsel requested (and Member’s Counsel agreed) that the Panel not make a finding under that subsection given the lack of evidence to support such a finding. With respect to subsection 1(18) of Ontario Regulation 437/97, College Counsel requested that the Panel find that the Member’s conduct was unprofessional only (and not disgraceful or dishonourable). 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 March 25, 2021, finding that the Member engaged in acts of professional misconduct as alleged, contrary to Ontario Regulation 437/97, subsections 1(7.1), 1(14), 1(15), 1(18) [unprofessional only] and 1(19).

E. REASONS FOR DECISION

8The Member admitted the truth of the facts and exhibits referred to in paragraphs 1 to 10 of the Agreed Statement of Facts and Guilty Plea and admitted the allegations of professional misconduct against him (with the exception of subsection 1(11), which the parties asked the Panel not to make a finding under). He acknowledged and the Panel accepts that the Admitted Facts constitute professional misconduct. The Admitted Facts demonstrate that, the Member engaged in inappropriate physical contact with Student 1, a Grade [XXX] student.

9The Member physically abused a student, contrary to subsection 1(7.1) of Ontario Regulation 437/97. In an effort to stop Student 1 from misbehaving, the Member took hold of the hood of the student’s sweatshirt to control his movements. This had the effect of “choking” Student 1 as he tried to get away. The Panel finds that the Member’s behaviour was physically abusive because the Member used unnecessarily physical force against a student when attempting to manage the student’s undesirable behaviour. Teachers must conduct themselves in a composed manner and use appropriate discipline methods when addressing student behaviour.

10The Member failed to comply with the Act or the regulations or the by-laws, contrary to Ontario Regulation 437/97, subsection 1(14), by breaching the standards articulated in the Ethical Standards for the Teaching Profession set out at section 32.02 of the by-laws. The ethical standard of “Care” requires members to express their commitment to students’ well-being. By engaging in inappropriate physical contact with Student 1, which had the effect of “choking” Student 1 as he tried to get away, the Member compromised the student’s physical safety. As such, his actions were contrary to the Ethical Standards.

11The Panel finds that the Member contravened subsection 1(15) of Ontario Regulation 437/97 by failing to comply with subsection 264(1) of the Education Act, which sets out the duties of a teacher. Clause 264(1)(c) of the Education Act requires teachers to demonstrate the highest regard for a number of virtues, and it is commonly understood to mean that teachers must act as positive role models for students. Clause 264(1)(e) of the Education Act requires teachers to maintain proper order and discipline while on duty at school and on the school ground. The incident in which the Member grabbed Student 1 by his hood occurred during recess and in front of other students. The Member therefore had an opportunity to show students how to exercise restraint and how to appropriately handle conflict. By instead resorting to physical means to control the situation, the Member acted as a poor role model for students. Moreover, the Member’s inappropriate physical intervention with Student 1 showed that the Member failed, in this instance, to maintain proper order and discipline on the school ground.

12The Member’s physically abusive behaviour was unprofessional, contrary to subsection 1(18) of Ontario Regulation 437/97. The Member demonstrated poor professional judgment by using inappropriate physical contact to manage Student 1’s misbehaviour. Members must address student behaviour in a professional and composed manner, without unnecessarily resorting to physical means.

13Additionally, the Member’s conduct, as described above, was unbecoming a member contrary to subsection 1(19) of Ontario Regulation 437/97. This conduct undermines the reputation of the teaching profession and violates the trust that parents, students and the public place in teachers.

F. PENALTY DECISION

14The parties agreed to a Joint Submission on Penalty (Exhibit 3), which was presented to the Panel. In an oral decision rendered on March 25, 2021, the Panel accepted the Joint Submission on Penalty and made the following order:

1. The Member is directed to appear before the Committee immediately following the hearing of this matter to receive a reprimand which will be delivered in person at the offices of the Ontario College of Teachers, 101 Bloor Street W., Toronto, Ontario or by videoconference and the fact of the reprimand is to be recorded on the Register of the Ontario College of Teachers (the “Register”);

2. The Registrar of the Ontario College of Teachers (the “Registrar”) is directed to suspend the Certificate of Qualification and Registration of the Member for a period of four months commencing on the 15th calendar day following the date of the Oral Decision and Order of the Discipline Committee relating to this matter, and the fact of the suspension is to be recorded on the Register;

3. The Registrar is directed to impose the following terms, conditions, or limitations on the Member’s Certificate of Qualification and Registration:

(a) prior to returning to teaching, the Member shall enrol in and successfully complete at his own expense, a course of instruction pre-approved by the Registrar regarding anger management, 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 the assignments to be completed by the Member;

(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

15The 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 College Counsel: Ontario College of Teachers v. Thompson, 2020 ONOCT 133, Ontario College of Teachers v. Black, 2020 ONOCT 152, Ontario College of Teachers v. Hunt, 2020 ONOCT 212 and Ontario College of Teachers v. Dayfoot, 2018 ONOCT 73.

16The Panel considered the Member’s circumstances in comparison to the cases provided. The aggravating factors in the Member’s case are the fact that the Member has been the subject of College and Board discipline in the past and that he engaged in similar misconduct even after having received discipline letters from his Board seeking to address his concerning behaviour. In terms of mitigating factors, the Member admitted his misconduct, saving the time and expense of a contested hearing. After weighing these factors, the Panel accepts that the penalty proposed by the parties is reasonable.

17The Panel finds that the Member’s inappropriate conduct despite prior warnings from the Board, warrants a reprimand by his peers. Teachers are expected to act professionally, to serve as positive role models, and to not resort to physical means to address challenging student behaviour. 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.

18Given the nature of the Member’s conduct and the fact that the Member’s unnecessary use of physical force against students formed part of a concerning pattern of behaviour that was previously addressed at the Board and College level, the Panel finds that a four-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 the cases confirm that a suspension is justified. 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. In accordance with the parties’ joint submission, the Member’s suspension will begin on April 9, 2021, which is 15 days after the Panel’s Oral Decision and Order.

19The Panel finds that the course of instruction regarding anger management will assist in the rehabilitation of the Member. The coursework will remind the Member of his obligations as a teacher and will help him to make better decisions in any future interactions with students.

20The Panel is satisfied that the penalty is appropriate in the circumstances and meets the principle of serving and protecting the public interest.

Date: March 29, 2021

Stéphane Vallée, OCT Chair, Discipline Panel

Élaine Legault Member, Discipline Panel

Marlène Marwah Member, Discipline Panel

Footnotes

1. 1Allegation withdrawn at the request of College Counsel.
2. 2Allegation narrowed to unprofessional acts only at the request of College Counsel.
3. 3College counsel asked the Panel not to make a finding of failing to supervise under subsection 1(11) on the basis that the facts in the Agreed Statement of Facts did not support such a finding.