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 Andrew James Philbrook, a member of the Ontario College of Teachers.
BETWEEN:
ONTARIO COLLEGE OF TEACHERS
– and –
ANDREW JAMES PHILBROOK (REGISTRATION #649763)
PANEL: Nicola Powadiuk, OCT, Chair Andrew Glenny Pauline Smart
HEARD: June 21, 2021
Jean-François Schaan, for the Ontario College of Teachers No one appearing, for Andrew James Philbrook Renée Kopp, 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 Justice I. F. Leach 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 June 21, 2021, in accordance with rule 8.01 of the Rules of Procedure of the Discipline Committee and of the Fitness to Practise Committee.
2Andrew James Philbrook (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 June 15, 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 communications with the Member, and 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, sections 31.01 and 31.02 of the College Bylaws require that members keep their contact information up to date with the College.
6In this case, although the documents which were sent to the Member by mail and courier were returned to the College, the Member 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 registered mail and courier to the Member’s last known address, after having retained a third-party service provider to verify the Member’s address. The Member was also sent the documents by email at his last known email address. In addition, Exhibit 3 indicates that the College in fact established communication with the Member in May 2021, that the Member was made aware of his June 21, 2021 hearing date, and that the Member then provided the College with updated contact information and assurances that agreement documents would be signed and returned to the College (although those documents were never received). It is clear to the Panel that the Member was aware of his hearing date, and 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 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.
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, who was allegedly sexually abused, or the subject of sexual misconduct or a prohibited act involving child pornography. Accordingly, no person shall publish the identity of, or any information that could disclose the identity of Student 1.
9Additionally, the Panel received a certified copy of the transcript of the Member’s Arraignment and Plea from his criminal proceedings before Justice I.F. Leach dated November 29, 2017 (Exhibit 4 at Tab 2). 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 August 30, 2018 (Exhibit 1) are as follows:
IT IS ALLEGED that Andrew James Philbrook 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, verbally, contrary to Ontario Regulation 437/97, subsection 1(7);
(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);1
(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); and
(i) he engaged in conduct unbecoming a member, contrary to Ontario Regulation 437/97, subsection 1(19).
PARTICULARS OF THESE ALLEGATIONS ARE AS FOLLOWS
Andrew James Philbrook was at all material times a member of the Ontario College of Teachers (the “College”).
At all material times, the Member was employed as a Grade [XXX] and Grade [XXX] teacher at the [XXX] (the “School”), a [XXX] school in London, Ontario.
At all material times, Student 1 was a [XXX]-year-old student. Student 1 did not attend the School.
On or about March 31, 2017, the Member verbally communicated with Student 1 for the purpose of obtaining sexual services for consideration. Student 1 reported this interaction to the police.
On or about April 1, 2017, the Member was arrested and charged him with one count of communication for the purpose of obtaining for consideration the sexual services of a person under the age of 18, contrary to section 286.1(2) of the Criminal Code of Canada.
On November 29, 2017, the original indictment was amended and the Member pled guilty to one count of communication for the purpose of obtaining for consideration the sexual services of a person, contrary to section 286.1(1) of the Criminal Code of Canada.
On December 8, 2017, the Member was sentenced to a fine and 2 years’ probation. The Member is also the subject of a number of ancillary orders.
The Member did not appeal his conviction or sentence.
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 Andrew James Philbrook (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 - Her Majesty the Queen v. Andrew Philbrook (Exhibit 4), which contains the following documents:
Certified Copies of Court Documents;
Certified Copy of the Transcript of the Member’s Arraignment and Plea before Justice I.F. Leach in the Superior Court of Justice, dated November 29, 2017;
Certified Copy of Transcript of the Sentencing Hearing before Justice I.F. Leach in the Superior Court of Justice, dated December 8, 2017;
Certified Prohibition Order dated December 8, 2017; and
Certified Adult Probation Order dated January 16, 2018.
13The evidence presented in Exhibit 4 establishes that on November 29, 2017, in the Superior Court of Justice, the Member pled guilty to and was found guilty of one count of communication for the purpose of obtaining for consideration the sexual services of a person, contrary to section 286.1(1) of the Criminal Code. On December 8, 2017, the Member was sentenced to a fine and 2 years’ probation. The Member was also made subject to a number of ancillary orders. The Member did not appeal his criminal finding of guilt or sentence.
E. SUBMISSIONS ON FINDING
14College Counsel described the incident which led to the Member’s criminal charge and submitted that the Member was found guilty in his prior criminal proceedings for having verbally communicated with Student 1 for the purpose of obtaining for consideration the sexual services of a person. According to College Counsel, the Member’s conduct, as detailed in the record of the criminal proceedings (see Exhibit 4) and the resultant finding of guilt in relation to the criminal offence, provided a sufficient basis to justify a finding of professional misconduct. The Member had legal representation during his criminal proceedings.
F. DECISION ON FINDING
15Counsel for the College requested that the allegation of professional misconduct outlined in paragraph (g) of the Notice of Hearing, namely that the Member contravened subsection 1(17) of Ontario Regulation 437/97, be withdrawn. College Counsel sought the Panel’s permission to withdraw the subsection 1(17) allegation because Student 1 was not under the Member’s professional supervision and there was insufficient evidence to show that the Member ever posed a risk to students under his supervision. College Counsel further submitted that the Member’s conduct is better captured under the other heads of misconduct. The Panel granted the withdrawal request.
16Having considered the evidence, onus and standard of proof, and the submissions made by College Counsel, the Panel rendered an oral decision on June 21, 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(7.2), 1(7.3), 1(15), 1(16), 1(18) and 1(19). The Member also engaged in sexual abuse of a student 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 Copies of the Court Documents from the criminal proceedings as proof, in this case, that the Member committed the criminal offence outlined therein. The Member was found guilty of a criminal offence 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 Documents, the findings of fact contained in the Certified Copy of Transcript of the Sentencing Hearing before the Superior Court of Justice involving the Member. The Panel further admits as incidental to the Certified Copies of the Court Documents, the Certified Copy of Transcript of the Member’s Arraignment and Plea, for the purposes of explaining the finding of guilt.
19Based on the evidence contained within the Brief of Court Documents, the College has proven, on a balance of probabilities, that on March 31, 2017, the Member verbally communicated with Student 1 for the purpose of obtaining sexual services for consideration. The Member drove up to Student 1, who was walking. He asked Student 1 if she wanted to “make some easy money” and if she would like to give him a “blow job for $200”. Student 1 refused and reported the matter to the police (see Exhibit 4, Tab 2, page 10). The Panel recognizes that at the time of the offence, the Member did not know Student 1 and he did not know that she was a student.
20The Member was charged with one count of communication for the purpose of obtaining for consideration the sexual services of a person under the age of 18, contrary to section 286.1(2) of the Criminal Code of Canada. On November 29, 2017, the original indictment was amended and the Member pled guilty to and was found guilty of one count of communication for the purpose of obtaining for consideration the sexual services of a person, contrary to section 286.1(1) of the Criminal Code of Canada. The parties to the criminal proceeding agreed that, although Student 1 was under the age of 18, the Member did not know that at the time of his offence and the Member did not acknowledge that he should have known Student 1’s age at the time (see Exhibit 4, Tab 2, page 10-11). The Panel accepts these facts as evidence in this proceeding.
21The Member was subsequently sentenced to a fine and two years’ probation. He was also made subject to a number of ancillary orders.
(2) Legal Conclusions
22The Panel finds that the Member’s conduct was a clear breach of each of the following heads of professional misconduct set out in the Notice of Hearing: subsections 1(5), 1(7), 1(7.2), 1(7.3), 1(15), 1(16), 1(18) and 1(19) of Ontario Regulation 437/97. The Member also engaged in sexual abuse of a student as defined in section 1 of the Act.
23The 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 abused Student 1 by asking her to provide him with sexual services in exchange for money. The sexual abuse of a student is misconduct which is so notorious that expert evidence is not required to prove the breach of professional standards.
24The Member breached subsection 1(7) of Ontario Regulation 437/97 by asking Student 1 to provide him with oral sex in exchange for $200. Although the Member did not know that Student 1 was a student at the time, his awareness of this fact is not necessary to prove that he verbally abused a student. The fact remains that Student 1 was a student at the time, and it is entirely inappropriate and offensive for a member to ask a student for sexual services in exchange for money. The Member’s conduct was therefore verbally abusive.
25The Member breached subsection 1(7.2) of Ontario Regulation 437/97. The Panel accepts Justice Leach’s finding that, although Student 1 did not provide a victim impact statement in the criminal proceedings, it can be reasonably inferred that her mental well-being was adversely affected by the Member’s conduct. It would have been a traumatic and shocking experience for an adolescent, under [XXX] years of age, to be approached by a stranger on the street and asked for sexual services in exchange for money (see Exhibit 4, Tab 3 at pages 14-15). As such, the Panel finds that Member psychologically or emotionally abused Student 1.
26The Member’s conduct constitutes sexual abuse of a student 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 behaviour or remarks of a sexual nature by a member towards a student. The Panel recognizes that there was no direct student-teacher relationship between Student 1 and the Member; however, Student 1 met the definition of “student” for the purposes of a sexual abuse finding. Subsection 1(2) at paragraph 3 of the Act provides that a “student” includes, “Any other child who, at the time the behaviour, remarks or conduct occurred or were made, was under 18 years old or, in the case of a child who had special needs, was under 22 years old.” The evidence is that Student 1 was under [XXX] years old at the time of the Member’s conduct and as such she met the definition of student. The Panel finds that the Member sexually abused Student 1 by asking her to give him a “blow job” in exchange for money. Such conduct constitutes behaviour or remarks of a sexual nature and meets the definition of sexual abuse under the Act. This finding is further supported by the fact that the Member was found guilty of communicating for the purpose of obtaining for consideration the sexual services of a person, in his prior criminal proceedings.
27The 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, humanity and purity. Essentially teachers are expected to serve as positive role models. Given the important role that they play in their communities, a teacher’s duties are not limited to the time that they are in the classroom. Teachers hold a unique position of trust and authority, and they serve as role models to many students. They must therefore conduct themselves morally and with integrity both inside and outside of the classroom. By engaging in the criminal conduct described above, the Member demonstrated a fundamental breach of his duties as a teacher.
28The Panel finds that the Member’s criminal finding of guilt for having breached section 286.1(1) of the Criminal Code, demonstrates that he contravened a law relevant to his suitability to hold a Certificate of Qualification and Registration, contrary to subsection 1(16) of Ontario Regulation 437/97. Asking a person for sexual services for consideration is a criminal offence that calls into question a member’s suitability to hold the unique position of trust and authority that teachers have the privilege of holding. Members of the profession must be trusted to work closely with students and ensure their safety and well-being. Those who engage in this type of criminal conduct cast doubt on their suitability to safely work with children and youth.
29The Member breached subsection 1(18) of Ontario Regulation 437/97. It was disgraceful, dishonourable and unprofessional for the Member to ask Student 1 for sexual services for consideration. Disgraceful and dishonorable conduct includes conduct which casts doubt on a member’s moral fitness to practise the profession. It is immoral for a teacher, who is expected to be an upstanding member of the community, to ask a young person for oral sex in exchange for money. By engaging in such conduct, the Member also demonstrated a failure to exercise good judgment and hence his conduct can also be characterized as “unprofessional”. As a teacher, the Member was expected to behave honourably both inside and outside of the classroom and safeguard the well-being of students. The Member did the opposite and as such his conduct was disgraceful, dishonourable and unprofessional.
30Finally, the Panel finds that the Member’s criminal conduct, as described above, is also unbecoming a member, contrary to subsection 1(19) of Ontario Regulation 437/97. By engaging in criminal conduct of a sexual nature, the Member severely compromised the reputation of the profession and undermined the trust and confidence that the public places in its members.
H. SUBMISSIONS ON PENALTY
31College 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. The College did not seek costs or a fine against the Member given the circumstances of this case.
I. PENALTY DECISION
32On June 21, 2021, the Panel made the following order as to penalty:
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.
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
33The Member’s professional misconduct consisted of or included the sexual abuse of a student, 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 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. The 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 did not seek costs or a fine against the Member.
34The Panel denounces the Member’s misconduct in the strongest terms.
Date: July 7, 2021
Nicola Powadiuk, OCT Chair, Discipline Panel
Andrew Glenny Member, Discipline Panel
Pauline Smart Member, Discipline Panel