DISCIPLINE COMMITTEE OF THE ONTARIO COLLEGE OF TEACHERS
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
Keith Charlton Baker, OCT, a member of the Ontario College of Teachers.
BETWEEN:
ONTARIO COLLEGE OF TEACHERS
– and –
KEITH CHARLTON BAKER (REGISTRATION #470854)
PANEL: Wanda Percival, Chair William Goldbloom Kimberley Westfall-Connor
HEARD: June 7, 2021
Eli Mogil, for the Ontario College of Teachers Patricia D’Heureux, for Keith Charlton Baker Rebecca Durcan, 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 June 7, 2021, in accordance with rule 8.01 of the Rules of Procedure of the Discipline Committee and of the Fitness to Practise Committee.
2Keith Charlton Baker (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 January 11, 2019 (Exhibit 1) are as follows:
IT IS ALLEGED that Keith Charlton Baker 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 verbally, contrary to Ontario Regulation 437/97, subsection 1(7);
(c) he abused a student or students physically, contrary to Ontario Regulation 437/97, subsection 1(7.1);
(d) he abused a student or students psychologically or emotionally, contrary to Ontario Regulation 437/97, subsection 1(7.2);
(e) 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;2
(f) he engaged in sexual misconduct as defined in section 1 of the Act;
(g) he failed to comply with the Act or the regulations or the by-laws, contrary to Ontario Regulation 437/97, subsection 1(14);
(h) 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);
(i) 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); and
(j) he engaged in conduct unbecoming a member, contrary to Ontario Regulation 437/97, subsection 1(19).
C. STATEMENT OF UNCONTESTED FACTS
5College Counsel presented the Panel with the parties’ Statement of Uncontested Facts and Plea of No Contest (Exhibit 2), which provides the following:
Keith Charlton Baker 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.
At all material times, the Member was employed by the Halton District School Board (the “Board”) as a teacher at [XXX] School (the “School”) in Oakville, Ontario.
During the 2016 – 2017 academic year, the Member was an [XXX] school teacher at the School.
Between September 1, 2016 and December 2, 2016, the Member made inappropriate comments to students including, but not limited to:
(a) Suggesting driving Student 1 home and holding a meeting with Student 1 at the Member’s home and asked the student if that was a “weird” comment;
(b) Joked with Student 1 about playing “footsie” with her and asked Student 1 if that was “weird”;
(c) Made comments to Student 1 about introducing her mother as “Hot Mama”;
(d) Made a comment in class about Student 2 having an intimate relationship with his pencil case;
(e) Commented on Student 3 in a Snapchat photograph and referred to her as “cute”;
(f) Suggested in class that Student 4 may be cutting his private parts with scissors.
- Between September 1, 2016 and December 2, 2016, the Member demonstrated inappropriate behaviour with students, including but not limited to:
(a) Invaded the personal space of one or more female students;
(b) Backed Student 3 into a wall;
(c) Backed Student 3 into a corner;
(d) Stared at a female student, which resulted in the female student feeling uncomfortable;
(e) Touched one or more female students on the back and/or shoulders;
(f) Tied the strings of a female student’s sweater.
The Board, the Halton Regional Police Service Child Abuse and Sexual Assault Unit and the Halton Children’s Aid Society investigated the above complaints.
Following its investigation, the Halton Regional Police Service closed its file without any charges.
Student 1 and Student 3 were interviewed by the Halton Children’s Aid Society. Following its investigation, the Society verified this allegation. Attached hereto and marked as Exhibit “B” is a copy of the Halton Children’s Aid Society’s correspondence dated January 13, 2017.
After reviewing the information collected during the course of its investigation, the Board substantiated the above allegations. Attached hereto and marked as Exhibit “C” is a copy of the Halton District School Board’s correspondence to the Member dated April 26, 2017.
As a result of the Board’s investigation regarding the above incidents, the Member was suspended without pay for 15 instructional days and administratively transferred to another school.
In May 2017, the Member completed a professional boundaries course. Attached hereto and marked as Exhibit “D” is a copy of the Certificate of Participation.
The Member is currently on leave from teaching and will be on said leave until September 30, 2021 at which point his formal retirement from the Board shall commence.
PLEA OF NO CONTEST
By this document, the Member agrees that the Discipline Committee can accept as correct the facts and the exhibits referred to in paragraphs above (the “Uncontested Facts”).
The Member hereby acknowledges that the conduct described in paragraphs 4-5 of the Uncontested Facts constitute conduct which is professional misconduct and pleads no contest to the allegations of professional misconduct against him being more particularly breaches of Ontario Regulation 437/97 subsections, 1(7), 1(7.1), 1(7.2), 1(14), 1(15), 1(18), and 1(19). The Member further does not contest that the Uncontested Facts in paragraph 4 constitute sexual misconduct as defined in section 1 of the Act.
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 Uncontested Facts being presented to the Discipline Committee;
(c) he understands that by pleading no contest 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 Committee can accept the Uncontested Facts as correct, and can accept that those facts constitute professional misconduct;
(e) 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;
(f) he understands that any agreement between counsel for the College and himself with respect to the penalty proposed does not bind the Discipline Committee;
(g) he understands and acknowledges that he is executing this Agreement voluntarily, unequivocally, and with the advice of legal counsel.
The Member provides this plea of no contest pursuant to Rule 3.02 of the Rules of Procedure of the Discipline Committee under protection of the Evidence Act, R.S.O. 1990, chapter E. 23, for the purpose of this proceeding under the Ontario College of Teachers Act 1996, chapter 12, and for no other purpose. The Member’s plea of no contest does not constitute an admission by the Member as to the facts or findings in any other civil, criminal or administrative proceeding.
In light of the Uncontested Facts and circumstances, 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 allegations of professional misconduct outlined in paragraphs (a) and (e) of the Notice of Hearing, namely that the Member contravened subsections 1(5) and 1(7.3) of Ontario Regulation 437/97, and that he engaged in sexual abuse of a student as defined in section 1 of the Act, be withdrawn. College Counsel stated that the Panel’s permission to withdraw the subsection 1(5) allegation was being sought as proceeding under both subsections 1(5) and 1(14) would be duplicative. With respect to the withdrawal of the allegation of sexual abuse, College Counsel submitted that there was insufficient evidence to support such a finding. The Panel granted these requests.
7Having considered the Statement of Uncontested Facts and Plea of No Contest and the submissions of the parties, the Panel rendered an oral decision on June 7, 2021, finding that the Member engaged in acts of professional misconduct as alleged, contrary to Ontario Regulation 437/97, subsections 1(7), 1(7.1), 1(7.2), 1(14), 1(15), 1(18) and 1(19). The Member also engaged in sexual misconduct as defined in section 1 of the Act.
E. REASONS FOR DECISION
8The Member did not contest the facts and exhibits referred to in paragraphs 1 to 12 of the Statement of Uncontested Facts and Plea of No Contest and pleaded no contest to the allegations of professional misconduct against him. He acknowledged and the Panel accepts that the Uncontested Facts constitute professional misconduct under the headings of misconduct set out above. The Uncontested Facts demonstrate that the Member made several inappropriate comments and repeatedly engaged in inappropriate behaviour with students.
9The Panel finds that the Member breached subsection 1(7) of Ontario Regulation 437/97. On multiple occasions, the Member made inappropriate comments to students, including: joking with Student 1 about playing “footsie” with her and asking Student 1 if that was “weird”; making a comment about Student 1’s “Hot Mama”; commenting in class about Student 2 having an intimate relationship with his pencil case; referring to Student 3 as “cute”; and suggesting in class that Student 4 may be cutting his private parts with scissors. The Member’s comments were offensive and highly inappropriate given the power dynamic that exists between teachers and students, and they amount to verbal abuse by the Member.
10The Member breached subsection 1(7.1) of Ontario Regulation 437/97. By making inappropriate physical contact with students. Among other things, the Member touched one or more female students on the back and/or shoulders and tied the strings of a female student’s sweater. The Panel finds that the Member’s conduct constitutes physical abuse of students. Members of the teaching profession must ensure that schools are safe spaces for students, and they must not invade students’ personal space. The Member’s physical contact with students was completely inappropriate and demonstrated his lack of respect for the appropriate professional boundaries which teachers must maintain with their students.
11The Member psychologically or emotionally abused students, contrary to subsection 1(7.2) of Ontario Regulation 437/97. The Member stared at a female student, which made the student feel uncomfortable. Moreover, the Panel finds that it can reasonably be inferred that the Member’s inappropriate comments and invasion of the personal space of one or more female students, would negatively impact the psychological or emotional well-being of students. Teachers hold a unique position of trust and authority, and it is emotionally abusive for them to repeatedly fail to maintain appropriate boundaries with students in a way that makes the students feel uncomfortable. The Member’s conduct therefore amounts to psychological or emotional abuse of students.
12The Panel finds that the Member’s conduct constitutes sexual misconduct as defined in section 1 of the Act. “Sexual misconduct” is defined in the Act as:
inappropriate behaviour or remarks of a sexual nature by the member that is not sexual abuse of a student, where,
(a) one or more students are exposed to the behaviour or remarks, or the member knows or ought to know that one or more students are likely to be exposed to the behaviour or remarks, and
(b) a reasonable person would expect the behaviour or remarks to have the effect of,
(i) causing distress to a student exposed to the behaviour or remarks,
(ii) being detrimental to the physical or mental well-being of a student, or
(iii) creating a negative environment at a school for a student exposed to the behaviour or remarks.
By making comments with sexual undertones in class, such as suggesting that Student 4 may be cutting his private parts with scissors and commenting about Student 2 having an intimate relationship with his pencil case, the Member exposed his students to behaviour or remarks of a sexual nature. The Panel finds that a reasonable person would expect these remarks to be detrimental to the physical or mental well-being of a student and create a negative environment in the classroom. It is not appropriate for teachers to make remarks with sexual undertones in front of their class and by doing so, the Member engaged in sexual misconduct.
13The Panel finds that the Member failed to comply with the Act, regulations, or by-laws contrary to subsection 1(14) of Ontario Regulation 437/97 by contravening section 32 of the College By-Laws, which sets out the professional and ethical standards for the teaching profession. The Member breached the ethical standards of “Care” and “Respect”. Members are expected to demonstrate their commitment to students’ well-being (“Care”) and to honour human dignity, emotional wellness, and cognitive development (“Respect”). By repeatedly making inappropriate comments to students and by invading the personal space of several students, the Member showed a clear disregard for the well-being of his students. He made students feel uncomfortable at school, which is contrary to the standards of the profession and the expectation that teachers will foster safe and supportive learning environments.
14The Panel finds that the Member failed to comply with section 264(1) of the Education Act, R.S.O. 1990, c. E.2, which sets out the duties of a teacher. Section 264(1)(b) provides that it is the duty of a teacher to encourage students in the pursuit of learning and section 264(1)(c) is commonly understood to mean that teachers must act as positive role models. The Member’s conduct described above was at odds with his duties as a teacher. By exposing students to comments of a sexual nature and by making students feel uncomfortable at school because of his behaviour, the Member failed to encourage students in the pursuit of learning and to serve as a positive role model. He created a negative school experience for several students.
15The Panel finds that the Member breached subsection 1(18) of Ontario Regulation 437/97 by engaging in conduct that was disgraceful, dishonourable or unprofessional. By exposing students to several inappropriate comments of a sexual nature, the Member engaged in conduct that was disgraceful and dishonourable. It is immoral for a teacher, who is expected to be a trusted adult and an upstanding member of the community, to make sexual comments to students. Members who engage in sexual misconduct cast doubt on their moral fitness to practice the teaching profession. Teaching is a privilege not a right. Moreover, by invading the personal space of several students and by behaving in a way that made students feel uncomfortable, the Member showed a concerning lack of professional judgment. Members of the profession must prioritize the physical and emotional safety of students. The Member did the opposite and his behaviour can be properly characterized as disgraceful, dishonourable and unprofessional.
16The Panel finds that the Member’s inappropriate conduct as described above, is unbecoming a member contrary to subsection 1(19) of Ontario Regulation 437/97. The public’s trust in the teaching profession is eroded when members of the profession engage in such a pattern of inappropriate behaviour.
F. PENALTY Decision
17The parties agreed to a Joint Submission on Penalty (Exhibit 3), which was presented to the Panel. In an oral decision rendered on June 7, 2021, the Panel accepted the Joint Submission on Penalty and made the following order:
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”);
The Registrar is directed to suspend the Certificate of Qualification and Registration of the Member for a period of 10 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;
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 approved by the Registrar regarding professional boundaries.3
G. REASONS FOR PENALTY DECISION
18The 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 restricts 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. Rosewell, 2016 ONOCT 46, Ontario College of Teachers v. Patry, 2017 ONOCT 73, Ontario College of Teachers v. Derr, 2017 ONOCT 52 and Ontario College of Teachers v. Orton, 2017 ONOCT 100.
19The Panel considered the Member’s circumstances in comparison to the cases provided. There are many aggravating factors in this case. First, there were multiple instances of inappropriate comments by the Member. Second, the Member’s conduct spanned over three months. Third, the Member’s conduct involved several students in [XXX] school. Finally, the Member’s conduct caused emotional harm to students. In terms of mitigating factors, the Member did not contest his misconduct, saving the time and expense of a contested hearing and has not been the subject of discipline proceedings in the past. After weighing these factors, the Panel accepts that the penalty proposed by the parties is reasonable.
20The Panel finds that the Member’s inappropriate conduct warrants a reprimand by his peers. Teachers must demonstrate a commitment to student well-being and learning. The Member’s misconduct included the verbal and physical abuse of students as well as sexual misconduct. The Member’s conduct had a negative emotional impact on students. 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.
21Given the nature and severity of the Member’s conduct, the Panel finds that a ten-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 June 22, 2021, which is 15 days after the Panel’s Oral Decision and Order.
22The Panel takes note that the Member has completed the course of instruction regarding professional boundaries set out at paragraph 3(a) of the Joint Submission on Penalty (see Exhibit 2 at Exhibit D) and as such has fulfilled the terms, conditions or limitations set out in that paragraph. The Panel expects that the coursework has reminded the Member of his obligations as a teacher and will help him to make better decisions in any future interactions with students.
23The Panel is satisfied that the penalty is appropriate in the circumstances and meets the principle of serving and protecting the public interest.
Date: June 16, 2021
Wanda Percival Chair, Discipline Panel
William Goldbloom Member, Discipline Panel
Kimberley Westfall-Connor Member, Discipline Panel