Ontario College of Teachers v. Burnet, 2021 ONOCT 51

DISCIPLINE COMMITTEE OF THE ONTARIO COLLEGE OF TEACHERS

Citation: Ontario College of Teachers v Burnet 2021 ONOCT 51

Date: 2021-05-20

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

Geoffrey William Burnet, a member of the Ontario College of Teachers.

BETWEEN:

ONTARIO COLLEGE OF TEACHERS

– and –

GEOFFREY WILLIAM BURNET (REGISTRATION #441064)

PANEL: Wanda Percival, Chair Kevin McCarthy Claudette Rutherford, OCT

HEARD: May 14, 2021

Jean-François Schaan, for the Ontario College of Teachers No one appearing for Geoffrey William Burnet 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 orders of the Superior Court of Justice and the Ontario Court of Justice, there are also publication bans on any information that could identify the victims or witnesses in Mr. Burnet’s prior criminal proceedings, 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 May 14, 2021, in accordance with rule 8.01 of the Rules of Procedure of the Discipline Committee and of the Fitness to Practise Committee.

2Geoffrey William Burnet (the “Member”) did not attend the hearing and did not have 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 and Student 2, 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 and Student 2.

5The Panel also received a certified copy of the transcript of the Reasons for Sentence from the Member’s criminal proceedings before Justice A. Goodman dated January 11, 2019 (Exhibit 2 at Appendix C) and the Reasons for Judgment of Justice F. O’Donnell dated February 22, 2019 (Exhibit 2 at Appendix E). In these proceedings before the Superior Court of Justice and the Ontario Court of Justice, orders restricting publication were made pursuant to section 486.4 of the Criminal Code of Canada. The Panel is required to uphold these publication bans. Accordingly, any information that could identify the victims or witnesses involved in these matters 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 June 19, 2020 (Exhibit 1) are as follows:

IT IS ALLEGED that Geoffrey William Burnet 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, sexually, verbally, psychologically or emotionally, contrary to Ontario Regulation 437/97, subsection 1(7)¹ and/or engaged in sexual abuse of a student or students as defined in sections 1 and 40(1.1)² of the Act;

(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).

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:

1. Geoffrey William Burnet is a member of the Ontario College of Teachers whose Certificate of Qualification and Registration is currently suspended for non-payment of fees. Attached hereto and marked as Appendix “A” is a copy of the Ontario College of Teachers Registered Member Information with respect to the Member.

First Set of Charges and Convictions

2. At all material times, the Member was employed by the Hamilton Wentworth Catholic District School Board, the Upper Grand District School Board and/or the Toronto District School Board. The Member was also employed by the [XXX](the “School”) in Hamilton, Ontario.

3. At all material times, Student 1 was a female student in Ontario under [XXX] years of age. The Member did not teach Student 1.

4. At all material times, Student 2 was a female student in Ontario under [XXX] years of age. Student 2 participated in [XXX] with the Member at the Member’s home.

5. On or about September 20, 2016, the Member was arrested and charged with a number of offences against Student 1 alleged to have occurred between January 1, 2007 and December 31, 2008.

6. In or about October 2016, Student 2 came forward with allegations against the Member. The Member was subsequently charged with one offence against Student 2, alleged to have occurred between January 1, 2003 and December 31, 2004.

7. The Member was charged with:

(a) Two counts of sexual interference against Student 1, contrary to s. 151 of the Criminal Code (Canada);

(b) One count of sexual assault against Student 1, contrary to s. 271 of the Criminal Code (Canada);

(c) Two counts of invitation to sexual touching towards Student 1, contrary to s. 152 of the Criminal Code (Canada);

(d) Two counts of exposing his genital organs for a sexual purpose to Student 1, contrary to s. 173(2) of the Criminal Code (Canada);

(e) One count of exposing his genital organs for a sexual purpose to Student 2, contrary to s. 173(2) of the Criminal Code (Canada);

8. On October 16, 2018, the Member pleaded not guilty to the criminal charges set out at paragraph 7 of this document and proceeded to trial before the Honourable Justice Goodman of the Superior Court of Justice of Ontario.

9. On October 26, 2018, Justice Goodman found that the Member exposed his genital organs to Student 1 and Student 2 for a sexual purpose. The Member was found guilty and convicted of exposing his genital organs for a sexual purpose to Student 1 (one count) and to Student 2 (one count), contrary to s. 173(2) of the Criminal Code (Canada). The Member was found not guilty of the other charges involving Student 1.

10. On January 11, 2019, the Member was sentenced to a six-month custodial sentence followed by two years’ probation, and was made the subject of a number of conditions and ancillary orders.

11. The Member did not appeal his convictions or sentence, and the appeal period for the Member’s convictions under s. 173(2) of the Criminal Code (Canada) has lapsed.

12. Attached hereto and marked as Appendix “B” is a certified transcript of Justice Goodman’s reasons for judgment, dated October 26, 2018.

13. Attached hereto and marked as Appendix “C” is a certified transcript of Justice Goodman’s reasons for sentence, dated January 11, 2019.

14. Attached hereto and marked as Appendix “D” are certified court documents setting out the charges against the Member involving Student 1 and Student 2 and their disposition, as well as the Member’s probation order.

Second Set of Charges and Finding of Guilt

15. On or about September 17, 2016, the Member was charged with possession of child pornography, contrary to s. 163.1(4) of the Criminal Code (Canada), and transmitting child pornography, contrary to s. 163.1(3) of the Criminal Code (Canada). These offences were alleged to have occurred between August 12, 2016 and September 6, 2016.

16. On or about February 27, 2017, the Member was charged with possession of child pornography, contrary to s. 163.1(4) of the Criminal Code (Canada) and accessing child pornography, contrary to s. 163.1(4.1) of the Criminal Code (Canada). These offences were alleged to have occurred on or about September 16, 2016.

17. On February 22, 2019, the Member pled guilty to one count of possession of child pornography, contrary to s. 163.1(4) of the Criminal Code (Canada).

18. Attached hereto and marked as Appendix “E” is a certified transcript of the reasons for judgment of the Honourable Justice O’Donnell of the Ontario Court of Justice, dated February 22, 2019.

19. Attached hereto and marked as Appendix “F” are certified court documents setting out the charges involving child pornography against the Member, the Member’s plea and the court’s finding pursuant to that plea.

20. The Member’s sentencing regarding the plea of guilt to one count of possession of child pornography, contrary to s. 163.1(4) of the Criminal Code (Canada), is pending.

GUILTY PLEA

21. By this document, the Member admits the truth of the facts and appendices referred to in paragraphs 1-20 above (the “Admitted Facts”).

22. 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(7.2), 1(7.3), 1(15), 1(16), 1(17), 1(18) and 1(19). The Member further acknowledges that his conduct constitutes sexual abuse of a student as defined in sections 1 and 40(1.1) of the Ontario College of Teachers Act, 1996.

23. 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 having had the opportunity to obtain the advice of legal counsel.

24. 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 May 14, 2021, finding that the Member engaged in acts of professional misconduct as alleged, contrary to Ontario Regulation 437/97, subsections 1(5), 1(7)³ [sexual and psychological or emotional abuse only], 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 a student of a nature defined in sections 1 and 40(1.1)⁴ of the Act.

E. REASONS FOR DECISION

9The Member admitted the truth of the facts and exhibits referred to in paragraphs 1 to 20 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 exposed his penis to Student 1 and Student 2. The Member was convicted of exposing his genital organs for a sexual purpose to Student 1 and to Student 2, contrary to subsection 173(2) of the Criminal Code (Canada). The Member subsequently pled guilty and was found guilty of possession of child pornography, contrary to subsection 163.1(4) of the Criminal Code.

10The 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 sexually abused Student 1 and Student 2. The Member was also in possession of child pornography. Sexual abuse of students and possession of child pornography are serious breaches 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 to prove the breach of professional standards.

11The Panel finds that the Member sexually and psychologically or emotionally abused Student 1 and Student 2. While watching pornographic images, the Member exposed his penis to Student 1, continued masturbating and ejaculated onto himself in the presence of Student 1. Similarly, while Student 2 [XXX] during her [XXX] at the Member’s home, Student 2 observed the Member watching pornographic images on TV and saw the tip of the Member’s penis and “then the white, sticky substance” (see Exhibit 2, Appendix B at pages 24-25). In her victim impact statement in the criminal proceedings, Student 1 described how the Member’s sexually abusive conduct caused her significant [XXX] emotional harm. She felt angry at being violated, experienced trauma, increased sadness, feelings of guilt, [XXX] emotional disconnect as she [XXX] and [XXX]. In relation to Student 2, the Panel finds that although Student 2 did not provide a victim impact statement in the criminal proceedings, it can be properly inferred that her mental well-being was adversely affected by the Member’s actions given that she was so young (under [XXX] years old) at the time of the Member’s conduct. She was vulnerable by virtue of her age. The Panel finds that by sexually abusing Student 1 and Student 2, the Member showed a complete disregard for their well-being.

12The above facts give rise to findings of professional misconduct under allegations (b), (c) and (d) of the Notice of Hearing for the following reasons.

13Paragraph (b) of the Notice of Hearing contains allegations from previous versions of Ontario Regulation 437/97 and the Act. Subsection 1(7) [pre-May 2008 amendment] included the physical, sexual, verbal, psychological or emotional abuse of students. The Panel can make a finding of any of these types of abuse in relation to the Member’s conduct which occurred before May 4, 2008, but it only makes findings of sexual and psychological or emotional abuse in this case because the parties’ evidence and the College’s oral submissions related only to these two types of abuse. By exposing his genitals to Student 1 and Student 2 before May 4, 2008, the Member breached subsection 1(7) of Ontario Regulation 437/97.

14The Member similarly engaged in sexual abuse of students as defined in section 1 and section 40(1.1)⁵ of the Act. Section 40(1.1) of the Act provided that the definition of “professional misconduct” was deemed to include sexual abuse of a student and section 1 of the Act defines “sexual abuse”. The definition of sexual abuse at section 1 of the Act includes behaviour or remarks of a sexual nature by a Member towards a student. The parties agreed that Student 1 and Student 2 were students under [XXX] years of age at all material times. Regardless of whether the Member taught the students, the Panel accepts the College’s submission that they would still have been considered students for the purposes of a finding under section 1 of the Act (see e.g., Ontario College of Teachers v. Sperling, 2019 ONOCT 40).

15In relation to paragraphs (c) and (d) of the Notice of Hearing, the Panel finds that the Member sexually, and psychologically or emotionally abused Student 1. These findings are limited to the Member’s conduct in relation to Student 1 that occurred on or after May 4, 2008 (i.e., under the current version of Ontario Regulation 437/97).⁶ By masturbating and ejaculating in the presence of Student 1, who was under [XXX] years of age, the Member’s conduct clearly constituted sexual and psychological or emotional abuse. The Member engaged in behaviour of a sexual nature in front of a student and this behaviour caused Student 1 lasting emotional harm as set out in her victim impact statement and described above.

16The 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 truth, justice and humanity. Essentially, teachers are expected to serve as positive role models. Sexual abuse and child pornography cause significant harm to the well-being of young and vulnerable children and negatively affect their formative years. Child pornography also perpetuates a market which thrives on the abuse of children. As described above, the Member’s conduct included the sexual abuse of Student 1 and Student 2 and the possession of child pornography. By engaging in such immoral and abhorrent conduct, the Member demonstrated a fundamental breach of his duties as a teacher.

17The Panel finds that the Member’s criminal convictions for exposing his genital organs to Student 1 and Student 2, contrary to subsection 173(2) of the Criminal Code and his finding of guilt for possession of child pornography, contrary to section 163.1(4) of the Criminal Code demonstrate that he contravened laws relevant to his suitability to hold a Certificate of Qualification and Registration and which have caused students to be put at risk, contrary to subsections 1(16) and 1(17) of Ontario Regulation 437/97. Exposure of genital organs to children for a sexual purpose and possession of child pornography are serious crimes that call into question a member’s suitability to hold the unique position of trust and authority that teachers possess.

18The Member breached subsection 1(18) of Ontario Regulation 437/97. It was disgraceful, dishonourable and unprofessional for the Member to sexually abuse Student 1 and Student 2, who were under [XXX] years old at all material times. The Member’s sexually abusive conduct had a negative impact on their psychological or emotional well-being. It was equally disgraceful, dishonourable and unprofessional for the Member to possess child pornography, which objectifies and exploits children. Members of the teaching profession are expected to be upstanding members of society and to safeguard the well-being of students. The Member did the opposite. The teaching profession does not tolerate such reprehensible conduct.

19The 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 Regulations 437/97. The public’s trust in the teaching profession is eroded when members of the profession sexually abuse students and possess child pornography.

F. PENALTY DECISION

20The parties agreed to a Joint Submission on Penalty (Exhibit 3), which was presented to the Panel. In an oral decision rendered on May 14, 2021, the Panel accepted the Joint Submission on Penalty and made the following order:

1. The Member is directed to receive a reprimand, in writing, and the fact of the reprimand is to be recorded on the Register of the Ontario College of Teachers; and

2. 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

21The Member’s professional misconduct consisted of or 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.⁷ The Panel notes that it has no discretion in this regard. In relation to the form of the reprimand, the Panel finds that a written reprimand is appropriate in the circumstances, given that the parties agreed to this form for the reprimand in their joint submission on penalty. The Panel recognizes that it may also order costs or a fine in accordance with subsection 30(5) of the Act but finds it reasonable not to make these additional orders in light of the Member’s guilty plea and joint submission on penalty.

22The Panel denounces the Member’s misconduct in the strongest terms.

Footnotes

1. 1Pre-May 2008 amendments to Ontario Regulation 437/97, in which subsection 1(7) included physical, sexual, verbal, psychological or emotional abuse, unlike the current regulation which addresses each type of abuse in a separate subsection.
2. 2This section of the Act has been repealed but was in force at the time of the Member’s conduct in relation to Student 1 and Student 2.
3. 3Pre-May 2008 amendments to Ontario Regulation 437/97, in which subsection 1(7) included physical, sexual, verbal, psychological or emotional abuse, unlike the current regulation which addresses each type of abuse in a separate subsection.
4. 4This section of the Act has been repealed but was in force at the time of the Member’s conduct in relation to Student 1 and Student 2.
5. 5This section of the Act has been repealed but was in force at the time of the Member’s misconduct in relation to Student 1 and Student 2.
6. 6Because the Member’s conduct in relation to Student 2 occurred between January 1, 2003 and December 31, 2004 (i.e., before the legislative amendments to Ontario Regulation 437/97), the Panel makes no finding in relation to Student 2 under the current version of the Professional Misconduct regulation.
7. 7Although this mandatory penalty provision was not in force at the time of the Member’s sexual abuse of Student 1 (i.e., between January 1, 2007 and December 31, 2008) and Student 2 (i.e. between January 1, 2003 and December 31, 2004), 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.