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
Barbara Jean Organ, a member of the Ontario College of Teachers.
BETWEEN:
ONTARIO COLLEGE OF TEACHERS
– and –
BARBARA JEAN ORGAN (REGISTRATION #197966)
PANEL: Irene Dembek, OCT, Chair Ann Ciaschini, OCT Wanda Percival
HEARD: December 3 and December 11, 2020
Danielle Miller, for the Ontario College of Teachers Naomi Greckol-Herlich, for Barbara Jean Organ Julie Maciura, Independent Legal Counsel
PUBLICATION BAN: Pursuant to subsection 32.1(3) of the Ontario College of Teachers Act, 1996, no person shall publish the identity of, or any information that could disclose the identity of any person who is under 18 years old and is a witness in a hearing or is the subject of evidence in a hearing.
1This proceeding was heard electronically before a panel of the Discipline Committee (the “Panel”) of the Ontario College of Teachers (the “College”) on December 3, 2020 and December 11, 2020, in accordance with rule 8.01 of the Rules of Procedure of the Discipline Committee and of the Fitness to Practise Committee.
2Barbara Jean Organ (the “Member”) did not attend the hearing but had legal representation. The Panel was advised at the outset of the hearing that the parties had entered into an agreement with respect to the hearing.
A. PUBLICATION ban
3The Panel ordered a publication ban pursuant to subsection 32.1(3) of the Ontario College of Teachers Act, 1996 (the “Act”), which makes such an order mandatory. Accordingly, no person shall publish the identity of, or any information that could disclose the identity of, any person who is under 18 years old and is a witness in a hearing or is the subject of evidence in a hearing.
B. THE ALLEGATIONS
4The allegations against the Member in the Notice of Hearing dated February 1, 2019 (Exhibit 1) are as follows:
IT IS ALLEGED that Barbara Jean Organ is guilty of professional misconduct as defined in the Act in that:
(a) she failed to maintain the standards of the profession, contrary to Ontario Regulation 437/97, subsection 1(5);1
(b) she abused a student psychologically or emotionally, contrary to Ontario Regulation 437/97, subsection 1(7.2);
(c) she abused a student sexually, contrary to Ontario Regulation 437/97, subsection 1(7.3) and/or engaged in sexual abuse of a student as defined in section 1 of the Act;
(d) she failed to comply with the Act or the regulations or the by-laws, contrary to Ontario Regulation 437/97, subsection 1(14);
(e) she 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) she 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) she 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) she 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) she engaged in conduct unbecoming a member, contrary to Ontario Regulation 437/97, subsection 1(19).
C. AGREED STATEMENT OF FACTS
5College Counsel presented the Panel with the parties’ Agreed Statement of Facts and Guilty Plea (Exhibit 2), which provides the following:
Barbara Jean Organ, previously known as Barbara Jean Doull, 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 Lambton Kent District School Board (the “Board”) as an [XXX], and [XXX], teacher at [XXX] School (the “School”) in Sarnia, Ontario.
At all material times, the Student was a female student at the School. The Member was the Student’s teacher in 2009-2010, 2010-2011, and 2011-2012.
In the spring of 2011, when the Student was in Grade [XXX], the Member and the Student began an inappropriate personal relationship.
In July 2011, the relationship between the Member and the Student developed into a sexual relationship.
The Member and the Student discussed the fact that their relationship was inappropriate, and the consequences to the Member if anyone found out about it. They agreed to keep the relationship secret.
In December 2011, when the Student was in Grade [XXX], the Student moved in with the Member. They lived together as a couple until October 2017.
On November 27, 2017, the Board reassigned the Member home with pay, pending its investigation into allegations of an inappropriate relationship with the student. On November 29, 2017, the Board notified the Member by letter that, as a result of having been charged with criminal offences in connection with a student, she was suspended without pay, pending the disposition of the criminal proceedings and the Board’s investigation.
The Member retired from the Board, effective April 25, 2019.
On November 25, 2019, in the Ontario Court of Justice, the Member pleaded guilty to, and was found guilty of, one count of sexual exploitation, contrary to section 153(1)(a) of the Criminal Code. Attached hereto and marked as Exhibit “B” is a copy of the Transcript of the Guilty Plea Proceedings, Ontario Court of Justice, dated November 25, 2019.
On February 14, 2020, the Member was sentenced to 75 days of intermittent incarceration, 18 months of probation, and ancillary orders. Attached hereto and marked as Exhibit “C” is a copy of the Reasons for Sentence, Ontario Court of Justice, dated February 14, 2020.
GUILTY PLEA
By this document, the Member admits the truth of the facts and exhibits referred to in the paragraphs above (the “Admitted Facts”).
The Member hereby acknowledges that the Admitted Facts constitute conduct which is professional misconduct and pleads guilty to the allegations of professional misconduct against her, being more particularly breaches of Ontario Regulation 437/97 subsections 1(7.2), 1(7.3), 1(14), 1(15), 1(16), 1(17), 1(18), 1(19). The Member further admits that the alleged conduct constitutes sexual abuse as defined in section 1 of the Act.
By this document the Member states that:
(a) she understands fully the nature of the allegations against her;
(b) she understands that by signing this document she is consenting to the evidence as set out in the Admitted Facts being presented to the Discipline Committee;
(c) she understands that by pleading guilty to the allegations, she is waiving the right to require the College to otherwise prove the case against her and the right to have a hearing;
(d) she 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 her name, shall be published in the official publication of the College;
(e) she understands that any agreement between her and counsel for the College with respect to the penalty proposed does not bind the Discipline Committee;
(f) she understands and acknowledges that she is executing the Agreed Statement of Facts and Guilty Plea voluntarily, unequivocally, and having had the opportunity to obtain the advice of legal counsel.
- In light of the Admitted Facts and the circumstances and the plea of guilt, the Ontario College of Teachers and the Member submit that the Discipline Committee find the Member guilty of professional misconduct.
D. DECISION
6Counsel for the College requested that the allegation of professional misconduct outlined in paragraph (a) of the Notice of Hearing, namely that the Member contravened subsection 1(5) of Ontario Regulation 437/97, be withdrawn. College Counsel stated that the Panel’s permission to withdraw the allegation was being sought as proceeding under both subsections 1(5) and 1(14) would be duplicative based on the facts outlined in the Agreed Statement of Facts and Guilty Plea. The Panel granted the request.
7Having considered the Agreed Statement of Facts and Guilty Plea and the submissions of the parties, the Panel rendered an oral decision on December 11, 2020, finding that the Member engaged in acts of professional misconduct as alleged, contrary to Ontario Regulation 437/97, subsections 1(7.2), 1(7.3), 1(14), 1(15), 1(16), 1(17), 1(18) and 1(19). The Member also engaged in sexual abuse of a student as defined in section 1 of the Act.
E. REASONS FOR DECISION
8The Member admitted the truth of the facts and exhibits referred to in paragraphs 1 to 11 of the Agreed Statement of Facts and Guilty Plea and admitted the allegations of professional misconduct against her. She 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 had an inappropriate personal relationship with the Student and a sexual relationship with the Student. The Member pleaded guilty to and was found guilty of sexual exploitation of the Student, contrary to section 153(1)(a) of the Criminal Code.
9The Member’s conduct constitutes psychological or emotional abuse of a student contrary to subsection 1(7.2) of Ontario Regulation 437/97. The victim impact statement (see Exhibit 2, Exhibit B at page 22), shows that there was an age difference of approximately 26 years between the Member and the Student, which was exploited over a period of time, and furthermore, that the relationship between the Member and the Student had an emotional and psychological impact on the Student. The Panel therefore finds that the conduct of the Member constitutes psychological or emotional abuse of the Student. By engaging in an inappropriate personal relationship and a sexual relationship with the Student, the Member showed a complete disregard for the Student’s psychological or emotional well-being.
10The 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 touching and behaviour or remarks of a sexual nature by a member towards a student. The Member kissed the Student and held the Student (see Exhibit 2, Exhibit B at page 15, and Exhibit 2, Exhibit C at pages 3-4), 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 exploitation of the Student in her prior criminal proceedings.
11The 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 outs the professional and ethical standards for the teaching profession. By sexually abusing the Student, the Member failed to comply with these standards. Misconduct of this nature is so notorious that expert evidence of the standard is not required.
12The 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 justice, humanity and purity. Members are expected to serve as positive role models as they are responsible for the well-being and safety of students. By having an inappropriate personal relationship with the Student, living together as a couple with the Student when the Student was in Grade [XXX], discussing with the Student the consequences which the Member would face if anyone found out about their inappropriate relationship, agreeing with the Student to keep their inappropriate relationship a secret and kissing the Student, the Panel finds that the Member’s conduct was entirely at odds with her obligations as a teacher.
13The Panel finds that the Member’s prior finding of guilt for sexually exploiting the Student demonstrates that she contravened a law relevant to her suitability to hold a Certificate of Qualification and Registration contrary to subsection 1(16) of Ontario Regulation 437/97. The teaching profession does not tolerate the sexual abuse of students by members and this type of criminal conduct clearly relates to a member’s suitability to hold a teaching certificate.
14Similarly, the Panel finds that the Member’s sexual abuse of the Student and resulting finding of guilt in her prior criminal proceedings has caused a student who was under the Member’s supervision to be put at or to remain at risk contrary to subsection 1(17) of Ontario Regulation 437/97.
15The Member’s misconduct is disgraceful, dishonourable or unprofessional contrary to subsection 1(18) of Ontario Regulation 437/97. It is completely unacceptable for members of the teaching profession to abuse their position of trust and authority by engaging in an inappropriate personal and sexual relationship with a student that included living together with the Student as a couple when the Student was in Grade [XXX] and kissing the Student. The Member’s conduct was clearly disgraceful, dishonourable, and demonstrated a lack of professional judgment.
16The Member’s abusive conduct which led to a criminal finding of guilt, as described above, is also 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 sexually abuse students.
F. PENALTY SUBMISSIONS
17The parties agreed to a Joint Submission on Penalty (Exhibit 3) which was presented to the Panel on December 11, 2020. The Joint Submission on Penalty provided for a revocation and a reprimand. Both parties agreed that the penalties set out in the Joint Submission on Penalty were mandatory in the present case, but for different reasons. A summary of the penalty submissions is set out below.
(1) College Counsel’s submission
18College Counsel submitted that, having made a finding of sexual abuse, the Panel is mandated to revoke and reprimand the Member pursuant to section 30.2 of the Act. She submitted that since the sexual abuse occurred between 2011 and 2013, the transitional provision at section 63.2 of the Act makes the current section 30.2 of the Act apply retrospectively to a finding of sexual abuse of a student that occurred prior to April 3, 2019, provided that the Committee has not previously made a subsection 30(4) order in the matter.
(2) Member’s Counsel submission
19Member’s Counsel agreed with College Counsel that revocation was mandatory in the present case but submitted that there was no need to engage the transitional provision of the Act because revocation was the applicable mandatory penalty in the version of the Act which was in force at the time of the conduct. She further submitted that it is unnecessary for the Panel to make a finding at all with respect to whether revocation is mandatory but rather the only question which the Panel should consider is whether the Joint Submission on Penalty is acceptable in the circumstances. She submitted that the Panel should accept the Joint Submission on Penalty presented by the parties since the test for rejecting a joint submission is very stringent.
G. PENALTY DECISION
20In an oral decision rendered on December 11, 2020, the Panel accepted the Joint Submission on Penalty and made the following order:
The Registrar of the Ontario College of Teachers is directed to immediately revoke the Certificate of Qualification and Registration of the Member;
The Member is directed to appear before the Committee, on a date to be arranged by the Member, within 60 days of the date of the Oral Decision and Order of the Discipline Committee, 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 via videoconference, and the fact of the reprimand is to be recorded on the Register of the Ontario College of Teachers (the “Register”).
H. REASONS FOR PENALTY DECISION
21Having considered both parties’ penalty submissions, the Panel finds that section 30.2 of the Act applies to its findings by virtue of section 63.2 of the Act.
22At the outset, the Panel notes that, at the time that the acts of professional misconduct occurred (between 2011 and 2013), a finding of sexual abuse did not attract any mandatory penalties.2 It is the transitional provision at section 63.2 of the current version of the Act (December 8, 2020 version) which provides that section 30.2, in its current form, applies retrospectively to a finding of sexual abuse of a student that occurred before April 3, 2019 provided no subsection 30(4) order has previously been made in respect of the same matter. The Panel finds that since the acts of professional misconduct which include the sexual abuse of the Student occurred between 2011 and 2013 (i.e., before April 3, 2019) and no subsection 30(4) order has been previously made in this matter, section 30.2 of the Act applies to its findings by virtue of section 63.2 of the Act.
23The Member’s professional misconduct 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. 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. The Panel’s order is confined to the parties’ joint submission in this case, given that the stringent test for rejecting a joint submission has not been met.
24The Panel denounces the Member’s misconduct in the strongest terms.
Date: January 25, 2021
Irene Dembek, OCT Chair, Discipline Panel
Ann Ciaschini, OCT Member, Discipline Panel
Wanda Percival Member, Discipline Panel