Ontario College of Teachers v. Abi-Samra, 2021 ONOCT 48

DISCIPLINE COMMITTEE OF THE ONTARIO COLLEGE OF TEACHERS

Citation: Ontario College of Teachers v Abi-Samra 2021 ONOCT 48

Date: 2021-05-17

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

Naoum Abi-Samra, a member of the Ontario College of Teachers.

BETWEEN:

ONTARIO COLLEGE OF TEACHERS

– and –

NAOUM ABI-SAMRA (REGISTRATION #481539)

PANEL: Nicola Powadiuk, OCT, Chair Élaine Legault Emile Ramlochan

HEARD: April 22, 2021

Jean-François Schaan, for the Ontario College of Teachers

No one appearing for Naoum Abi-Samra

Rebecca Durcan, 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 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 proceeding was heard electronically before a panel of the Discipline Committee (the “Panel”) of the Ontario College of Teachers (the “College”) on April 22, 2021, in accordance with rule 8.01 of the Rules of Procedure of the Discipline Committee and of the Fitness to Practise Committee.

2Naoum Abi-Samra (the “Member”) did not attend the hearing and did not have legal representation.

3Counsel for the College submitted an Affidavit of Tatiana Tkatch (Exhibit 3) sworn on April 9, 2021, to show that the College has met its service obligations to inform the Member of the allegations against him, the time and date of the hearing, as well as the penalty being sought by the College and possible costs. In this affidavit, Ms. Tkatch, a law clerk with the College, outlines the College’s extensive efforts to serve the Member with the Notice of Hearing and all required disclosure materials.

4The relevant rules of service are set out at Rule 2.03 of the Rules of Procedure of the Discipline Committee and of the Fitness to Practise Committee (the “Rules”), section 52 of the Ontario College of Teachers Act, 1996 (the “Act”), and sections 9.09 - 9.12 of the College Bylaws.

5Rule 2.03 of the Rules provides that, “Service of notice or documents is effective when it is made in accordance with the College’s Act or Bylaws.” Section 52 of the Act provides that service of notice or documents is sufficient if it is “(a) delivered personally; (b) sent by mail; or (c) given or served in accordance with by-laws respecting service”. Section 9.09 of the College Bylaws provides that service can be effected in a number of ways, including by courier or mail to the last known address of the person being served. Sections 9.10-9.12 of the College Bylaws provide that there is a rebuttable presumption that the documents have been delivered to the person after a specific number of days depending on the method of service. Moreover, section 31.01 of the College Bylaws requires that members keep their contact information up to date with the College.

6In this case, although the Member did not confirm receipt of any of the materials delivered by the College, he was deemed to have been served at his last known address. The College has shown that it met, and indeed exceeded, its service requirements including by sending materials by courier, regular and registered mail to the Member’s last known address, after having retained a third-party service provider to verify the Member’s address. The Panel therefore proceeded to hear this matter in the absence of the Member.

A. PUBLICATION ban

7The Panel ordered a publication ban pursuant to subsection 32.1(3) of 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.

8A publication ban was also ordered pursuant to subsection 32.1(4) of the Act at the request of College Counsel on behalf of Student 1, Student 2 and Student 3¹, who were allegedly sexually abused, or the subject of sexual misconduct or a prohibited act involving child pornography. Accordingly, no person shall publish the identities of, or any information that could disclose the identities of Student 1, Student 2 and Student 3.

9Additionally, the Panel received a certified copy of the transcript of the Condensed Reasons for Judgment from the Member’s criminal proceedings before Justice P. Kane dated November 23, 2018 (Exhibit 2 at Tab 4). 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

10The allegations against the Member in the Notice of Hearing dated February 13, 2020 (Exhibit 1) are as follows:

IT IS ALLEGED that Naoum Abi-Samra 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 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) 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);

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

PARTICULARS OF THESE ALLEGATIONS ARE AS FOLLOWS

1. At all material times, Mr. Abi-Samra was a member of the Ontario College of Teachers.

2. At all material times, the Member was employed by the Conseil des écoles catholiques du Centre-Est (the “School Board”) as a teacher at the [XXX] in [XXX], Ontario (the “First School”), or as a teacher at the École [XXX] in [XXX], Ontario (the “Second School”).

Allegations from the First School

3. During the 2009-2010 school year, the Member was employed as a teacher in the First School.

4. In October 2009, the Member hugged a female colleague (“Person A”) in his arms while they were at the First School. During this interaction, the Member’s hands briefly slipped down to the buttocks of Person A.

5. Between October 2009 and November 2009, on an occasion in which the Member had helped Person A at the First School, Person A embraced him. During this interaction, Mr. Abi-Samra placed his hands on the buttocks of Person A and squeezed them firmly.

6. On or about November 21, 2016, the Member was accused of sexually assaulting Person A, contrary to section 271 of the Criminal Code (Canada).

7. On February 25, 2019, the Member pleaded not guilty to the accusation of sexually assaulting Person A but pleaded guilty to the lesser and included offence of assaulting Person A, contrary to section 266 of the Criminal Code (Canada).

8. On February 25, 2019, the Member was convicted of assaulting Person A and was given a conditional sentence and 12 months of probation.

Allegations from the Second School

9. During the 2013-2014 and 2015-2016 school years, the Member was employed as a teacher at the Second School.

10. During the 2015-2016 school year, Student 1 and Student 2 were female students at the Second School and were taking courses with the Member.

11. During the 2013-2014 school year, Student 3 was a female student at the Second School and was taking courses with the Member.

12. In March 2016, Student 1 told her parents that the Member had touched her in class and had made intimate comments to her.

13. On or about April 19, 2016, the Member was accused of sexually assaulting Student 1, contrary to section 271 of the Criminal Code (Canada) and of sexual interference against Student 1, contrary to section 151 of the Criminal Code (Canada).

14. Following these accusations, Student 2 and Student 3 filed a complaint against the Member, indicating that the Member had touched them in the classroom.

15. On or about April 29, 2016, the Member was accused of sexual interference against Student 2, contrary to section 151 of the Criminal Code (Canada) and of sexually assaulting Student 2, contrary to section 271 of the Criminal Code (Canada).

16. On or about April 29, 2016, the Member was accused of sexual interference against Student 3, contrary to section 151 of the Criminal Code (Canada) and of sexually assaulting Student 3, contrary to section 271 of the Criminal Code (Canada).

17. Following a trial, on November 23, 2018, the Member was found guilty of sexually assaulting Student 1 and Student 2, contrary to section 271 of the Criminal Code (Canada) and was found not guilty with respect to the other charges.

18. On May 30, 2019, the Member was sentenced to two months of imprisonment, to be served intermittently, and to two years of probation. The Member is also subject to a certain number of ancillary orders.

19. The Member did not appeal either his convictions or his sentences.

C. THE MEMBER’S PLEA

11As 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

12College Counsel entered into evidence the Registered Member Information for Naoum Abi-Samra (Exhibit 2), which indicates that the Member was a member of the College at the time of the alleged events. The College also entered into evidence a Brief of Court Documents (Exhibit 4), which contains the following documents:

1. Judicial Interim Release Order and Recognizance of Bail, dated April 19, 2016;

2. Certified Copy of Indictment, Adjournments and Endorsements (Students 1, 2 and 3), dated August 2, 2018;

3. Certified Copy of Indictment, Adjournments and Endorsements (Person A), dated August 2, 2018;

4. Condensed Reasons for Judgment (sexual assault under s. 271), dated November 23, 2018;

5. Application to Admit Similar Fact Evidence Count to Count, dated December 18, 2018;

6. Certified Adult Probation Order (Person A), dated February 25, 2019;

7. Certified Copy of Proceedings at Guilty Plea, before the Honourable Justice A. Doyle, dated February 25, 2019;

8. Amended Application to Admit Similar Fact Evidence Count to Count, dated April 2, 2019;

9. Certified Adult Probation Order (Involving Student 1 and Student 2), dated May 30, 2019;

10. [Ancillary Order] (Ss. 271 and 271(1)), dated May 30 2019; and

11. Reasons for Sentence from Ontario Superior Court of Justice, dated June 10, 2019.

13The evidence presented in Exhibit 4 establishes that on February 25, 2019, in the Superior Court of Justice, the Member was convicted of assaulting Person A, contrary to section 266 of the Criminal Code (Canada) and was given a suspended sentence and 12 months of probation. Additionally, on November 23, 2018, the Member was found guilty of sexually assaulting Student 1 and Student 2, contrary to section 271 of the Criminal Code (Canada) and on May 30, 2019, the Member was sentenced to two months of imprisonment, to be served intermittently, and to two years of probation. The Member was also made subject to a number of ancillary orders. The Member did not appeal his criminal convictions, his findings of guilt or the sentences he received.

E. SUBMISSIONS ON FINDING

14College Counsel described the incidents which led to the Member’s criminal charges and submitted that the Member was convicted for assaulting Person A, a female colleague, and for sexually assaulting two of his students, Student 1 and Student 2. College Counsel also submitted that the Member was found not guilty with respect to the criminal charges in relation to Student 3.

15According to College Counsel, the Member’s conduct, as detailed in the record of the criminal proceedings (see Exhibit 4) and the resultant criminal convictions, provided a sufficient basis to justify a finding of professional misconduct under all of the heads of misconduct alleged in the Notice of Hearing. The Member had legal representation during his criminal proceedings.

F. DECISION ON FINDING

16Having considered the evidence, onus and standard of proof, and the submissions made by College Counsel, the Panel rendered an oral decision on April 22, 2021, 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(17), 1(18) and 1(19). The Member also engaged in sexual abuse of students as defined in section 1 of the Act.

G. REASONS FOR DECISION

(1) Factual Findings

17In accordance with the law of evidence 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 with respect to Person A (Exhibit 4, Tab 3) and the certified copy of the Court Indictment with respect to Student 1 and Student 2 (Exhibit 4, Tab 2) as proof, in this case, that the Member committed the criminal offences outlined therein. The Member was found guilty and convicted of multiple criminal offences before a Canadian Court, no appeal has been taken, and the time for an appeal has expired.

18In addition, pursuant to Rule 13.04 of the Rules, the Panel admits as ancillary to the certified copies of the Court Indictments, the findings of fact contained in the Condensed Reasons for Judgment (Exhibit 4, Tab 4), the Application to Admit Similar Fact Evidence Count to Count (Exhibit 4, Tab 5), the Amended Application to Admit Similar Fact Evidence Count to Count (Exhibit 4, Tab 8) and the Reasons for Sentence (Exhibit 4, Tab 11) before the Superior Court of Justice involving the Member. The Panel further admits as incidental to the certified copies of the Court Indictments, the certified copy of Proceedings at Guilty Plea (Exhibit 4, Tab 7) at which the conviction (with respect to Person A) occurred, for the purposes of explaining the finding of guilt.

19The evidence in the Brief of Courts Documents demonstrates that the Member assaulted Person A, contrary to section 266 of the Criminal Code (see Exhibit 4 at Tab 7). Person A was a new [XXX] teacher, and the Member was the head of the [XXX] department and Person A’s supervisor. In October or November 2009, Person A initiated a hug while at school and during that hug, the Member placed his hands on the buttocks of Person A and squeezed them firmly. While the original hug was consensual, Person A had not consented to the Member touching her buttocks or squeezing it, and this behaviour made her feel uncomfortable. The Member pleaded guilty to assaulting Person A, he was convicted for this criminal offence and he was given a suspended sentence and 12 months of probation for this conduct.

20The evidence in the Brief of Court documents demonstrates that the Member sexually assaulted Student 1, contrary to section 271 of the Criminal Code (see Exhibit 4 at Tab 11). In particular, the Member placed his hand with pressure on Student 1’s upper thigh on two or three occasions², between January and March 2016. Student 1 was a [XXX]-year-old student in the Member’s [XXX] class at the time of the sexual assaults. In her Victim Impact Statement, Student 1 described in detail how the Member’s sexually abusive behaviour caused her lasting [XXX] harm which included feeling trapped in fear, victimized, preyed upon and taken advantage of, and which led to constant fears of discomfort, weakness, fragility, oppression and powerlessness. Going to school caused her stress, which negatively impacted her commitment to her studies. The charge of sexual interference against Student 1 under section 151 was dismissed.

21Similarly, the evidence in the Brief of Courts documents demonstrates that the Member sexually assaulted Student 2, contrary to section 271 of the Criminal Code (see Exhibit 4 at Tab 11). Like Student 1, Student 2 was a [XXX]-year-old student in the Member’s [XXX] class at the time of the sexual assaults, which occurred between January and March 2016. On one occasion the Member placed his hand on Student 2’s upper thigh, with pressure, as he commented on her [XXX] work and even after she responded that she understood his explanation. On another occasion, the Member lifted Student 2’s lower arm and placed his hand against Student 2’s right breast as he looked at the [XXX] work which Student 2 and two other students had written on a white board. The Member then closed his fingers into a fist shape but left his closed hand under Student 2’s arm against her breast. In her Victim Impact Statement, Student 2 described the lasting [XXX] impact of her sexual assault at the hands of the Member. For instance, she cried when she was in the classroom in which her sexual assault occurred, and she was unable to focus on the academic tasks at hand. Moreover, the Member’s behaviour caused her hurt, anger and frustration to the point that she [XXX]. The charge of sexual interference against Student 2 under section 151 was dismissed.

22The charges of sexual assault and sexual interference in relation to Student 3 were dismissed during the Member’s criminal proceedings (see Exhibit 4, Tab 11), and the Panel therefore makes no finding in relation to the allegations relating to Student 3.

23On May 30, 2019, the Member was sentenced to two months of imprisonment to be served intermittently, and to two years of probation. The Member was also made subject to a number of ancillary orders. The Member did not appeal his convictions or his sentences.

(2) Legal Conclusions

24The Panel finds that the Member’s conduct was a clear breach of the following heads of professional misconduct set out in the Notice of Hearing: subsections 1(5), 1(7.1), 1(7.2), 1(7.3), 1(15), 1(16), 1(17), 1(18) and 1(19) of Ontario Regulation 437/97. The Member also engaged in sexual abuse of students as defined in section 1 of the Act.

25The Panel finds that the Member failed to maintain the standards of the profession contrary to subsection 1(5) of Ontario Regulation 437/97. The Member’s conduct in this case clearly fell below the standards of the profession. The Member sexually assaulted Student 1 and Student 2. The sexual abuse of students is misconduct which is so notorious that expert evidence is not required to prove the breach of professional standards.

26The Member breached subsection 1(7.1) of Ontario Regulation 437/97. The Member placed his hand on the upper thighs of Student 1 and Student 2, and he touched Student 2’s breast. The Panel finds that this type of physical contact with students is completely inappropriate and constitutes physical abuse of students. Members of the teaching profession must not engage in the unnecessary and unwanted touching of students.

27The Member breached subsection 1(7.2) of Ontario Regulation 437/97. The Member psychologically or emotionally abused Student 1 and Student 2. As set out above and as described in their Victim Impact Statements, the Member’s conduct had a lasting, negative [XXX] impact on both students. By sexually abusing Student 1 and Student 2, the Member showed a complete disregard for their psychological or emotional well-being.

28The Member’s conduct constitutes sexual abuse of students 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. The Panel finds that the Member sexually abused Student 1 and Student 2 by placing his hand on the upper thighs of Student 1 and Student 2, and by touching Student 2’s breast, all of which meet the definition of sexual abuse under the Act. This finding is further supported by the fact that the Member was found guilty of sexual assault of Student 1 and Student 2 in his prior criminal proceedings.

29The Panel finds that the Member contravened subsection 1(15) of Ontario Regulation 437/97 by failing to comply with section 264(1) of the Education Act. Subsection 264(1)(b) of the Education Act requires teachers to encourage students in the pursuit of learning. Subsection 264(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”, which is more commonly understood to mean that teachers must be positive role models for students. The Member certainly failed to meet these professional obligations. Through their Victim Impact Statements, the Panel received evidence that the Member’s conduct made Student 1 feel stressed about being at school and negatively effected her commitment to her studies. Similarly, Student 2 no longer wanted to [XXX] following her sexual assault by the Member. The Member’s sexual assault of these students demonstrated a fundamental breach of his duties a teacher.

30The Panel finds that the Member’s criminal convictions for sexual assault of Student 1 and Student 2, contrary to section 271 of the Criminal Code, demonstrate that he contravened a law relevant to his suitability to hold a Certificate of Qualification and Registration and which has caused students to be put at risk, contrary to subsections 1(16) and 1(17) of Ontario Regulation 437/97. Sexual assault is among the most serious crimes that a member can commit in their interactions with students, and it certainly calls into questions a member’s suitability to hold the unique position of trust and authority that teachers have the privilege of holding.

31The Member breached subsection 1(18) of Ontario regulation 437/97. It was disgraceful, dishonourable and unprofessional for the Member to sexually assault Student 1 and Student 2, who were only [XXX] years old at the time. The Member’s sexually abusive conduct caused Student 1 and Student 2 lasting [XXX] harm and negatively impacted their formative years as adolescents. It was equally disgraceful, dishonourable and unprofessional for the Member to assault Person A, a female colleague. The Member’s actions made Person A feel uncomfortable. At the time of the assault, Person A was just starting her teaching career as a [XXX] teacher. The Member held a position of authority as the head of the [XXX] department. He took advantage of this position by touching and squeezing the Member’s buttocks, which is completely unacceptable. Members of the teaching profession are expected to be upstanding members of their school communities, to safeguard the well-being of students and to behave professionally with colleagues at all times. The Member did the opposite. The teaching profession does not tolerate such reprehensible conduct.

32Finally, the Panel finds that the Member’s egregious conduct which led to his criminal convictions, as described above, is also unbecoming a member, contrary to subsection 1(19) of Ontario Regulation 437/97. Members of the teaching profession who sexually abuse students and assault colleagues severely compromise the reputation of the profession and undermine the trust and confidence that the public places in its members.

H. SUBMISSIONS ON PENALTY

33College Counsel submitted that, having made a finding of sexual abuse, the Panel was required to revoke and reprimand the Member pursuant to section 30.2 of the Act, and that this mandatory penalty provision applied retrospectively pursuant to section 63.2 of the Act. The College did not seek costs or a fine against the Member given the circumstances of this case.

I. PENALTY DECISION

34On April 22, 2021, the Panel made the following order as to penalty:

1. 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;

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

35The Member’s professional misconduct included the sexual abuse of students, 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 these mandatory penalty provisions apply retrospectively in this case pursuant to section 63.2 of the Act.³ The Panel notes that it has no discretion in this regard. In relation to the form of the reprimand, the Panel accepts the College’s submission that a written reprimand is appropriate in the circumstances.

36The Panel recognizes that, pursuant to subsection 30.2(1) of the Act, it may also order costs or a fine under subsection 30(5) of the Act. However, it is reasonable not to make these additional orders given that the College is not seeking costs or a fine against the Member.

37The Panel denounces the Member’s misconduct in the strongest terms.

Date: May 17, 2021

Nicola Powadiuk, OCT Chair, Discipline Panel

Élaine Legault Member, Discipline Panel

Emile Ramlochan Member, Discipline Panel

Footnotes

1. 1Student 1, Student 2 and Student 3 are referred to as Élève 1, Élève 2 and Élève 3 in some of the documents in the Member’s criminal proceedings.
2. 2The Panel noted minor factual discrepancies in the court documents. However, the Panel is primarily relying on the fact that the Member was found guilty of sexual assault (whether it was in relation to one incident or three).
3. 3Although this mandatory penalty provision was not in force at the time of the Member’s sexual abuse of Student 1 and Student 2 (i.e. between January and March 2016), section 63.2 of the Act provides that the mandatory penalty provisions at section 30.2 of the Act apply retrospectively where the sexual abuse occurred before April 3, 2019 and no order has been made under subsection 30(4) of the Act before then. These conditions are met in this case and the Panel must therefore apply the mandatory penalty provisions set out at section 30.2 of the Act.