DISCIPLINE COMMITTEE OF THE ONTARIO COLLEGE OF TEACHERS

Citation: Ontario College of Teachers v Jacquemain 2022 ONOCT 116

Date: 2022-12-15

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

Kevin Matthew Jacquemain, a member of the Ontario College of Teachers.

BETWEEN:

ONTARIO COLLEGE OF TEACHERS

– and –

KEVIN MATTHEW JACQUEMAIN (REGISTRATION #529272)

PANEL: Rebecca Forte, OCT, Chair Rachelle Coleman Stefano Fornazzari, OCT

HEARD: November 14, 2022

Zirka Jakibchuk, for the Ontario College of Teachers Chris Reid, for Kevin Matthew Jacquemain Julie Maciura, Independent Legal Counsel

PUBLICATION BAN: Pursuant to subsections 32.1(1) and 32.1(3) of the Ontario College of Teachers Act, 1996, no person shall publish or broadcast the identity of, or any information that could disclose the identity of Student 1 and 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 November 14, 2022, in accordance with rule 8.01 of the Rules of Procedure of the Discipline Committee and of the Fitness to Practise Committee.

2Kevin Matthew Jacquemain (the “Member”) did not attend the hearing but had legal representation. The Member attended immediately after the hearing for the delivery of his reprimand, as agreed to by the parties. 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.

4The subsection 32.1(3) publication ban does not apply to Student 1, who was older than 18 years old at the time of the hearing. College Counsel further indicated that she had not received instructions from Student 1 as to whether or not she requested that a publication ban pursuant to subsection 32.1(4) of the Act be ordered to protect her identity. The Panel cannot therefore order such a ban under subsection 32.1(4), which applies only “on the request of” a person of any age, who was allegedly sexually abused or the subject or sexual misconduct, a prohibited act involving child pornography or a prescribed sexual act.

5Wishing nonetheless to protect the identity of Student 1, and upon the request of College Counsel and the advice of Independent Legal Counsel, the Panel ordered a publication ban under subsections 32(7) and 32.1(1) of the Act. Subsection 32(7) gives the Panel authority to make an order that the public, including members of the College, be excluded from a hearing if, in the Panel’s opinion, the possibility of serious harm or injustice to any person justifies a departure from the general principle that hearings should be open to the public. Subsection 32.1(1) allows the Panel to order a publication ban in circumstances in which the test for closing the hearing under subsection 32(7) is met. The Panel found that given the nature and seriousness of the allegations, which included the Member’s sexual abuse of Student 1 from when she was [XXX]-years old, any disclosure of information that could identify Student 1 could potentially harm her and have devastating impact on her life.

6There are other details included in the Notice of Hearing and Statement of Uncontested Facts and Plea of No Contest that could identify Student 1, including but not limited to the school being named, the Member’s class that Student 1 took, her interaction with the Member’s family and role with her peers while she was attending school. Publishing these identifying details could risk Student 1’s emotional integrity and well-being. As the Panel finds that the possibility or serious harm or injustice to Student 1 justifies a departure from the general principle that hearings should be open to the public, the Panel finds it appropriate to exercise its discretion to ban the publication of these and any other pieces of identifying information. The Panel notes that this publication ban is discretionary and is being ordered here given the specific details included in the materials, the gravity of the allegations, and the possibility of injustice and harm that could result to Student 1. However, in balancing the public interest in having open hearings, the Panel used its discretion to keep the hearing open and allowed public observers to attend.

7The Panel understands that it would also be appropriate to give Student 1 the agency to make her own decisions, should she choose to do so. There is an option for Student 1 to issue an appeal seeking to lift the publication ban ordered under subsections 32(7) and 32.1(1). At the hearing, the Panel asked College Counsel to notify Student 1 of her right to make such an appeal and the steps involved in doing so, should Student 1 avail herself of that opportunity.

B. THE ALLEGATIONS

8The allegations against the Member in the Notice of Hearing dated August 15, 2022 (Exhibit 1) are as follows:

IT IS ALLEGED that the Kevin Matthew Jacquemain 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 psychologically or emotionally, contrary to Ontario Regulation 437/97, subsection 1(7.2);

(c) 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;

(d) 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);

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

C. Statement of Uncontested FACTS

9College Counsel presented the Panel with the parties’ Statement of Uncontested Facts and Plea of No Contest (Exhibit 2), which provides the following:

1. Kevin Matthew Jacquemain is a member of the Ontario College of Teachers.

2. The Member obtained a Certificate of Qualification and Registration on June 27, 2008. On May 7, 2022, the Member’s membership status with the College was changed to “Inactive/Non-Practicing.” Attached hereto and marked as Appendix “A” is a copy of the Ontario College of Teachers Registered Member Information with respect to the Member.

3. At all material times, the Member was employed by the Simcoe County District School Board (the “Board”) as a Grade [XXX] to [XXX] Teacher at [XXX] School (the “School”) in Barrie, Ontario.

4. Student 1 was a female student who attended the School between September [XXX] and June [XXX].

5. The Member was Student 1’s [XXX] teacher in the [XXX]- [XXX], [XXX]- [XXX] and [XXX]- [XXX] academic years. Student 1 also [XXX] on one occasion during this time.

6. During the [XXX]- [XXX] and [XXX]- [XXX] academic years, when Student 1 was [XXX] to [XXX] years old, the Member engaged in an inappropriate personal relationship with Student 1, which included:

(a) purchasing gifts for Student 1 on her birthday (e.g., keychains);

(b) purchasing lunch for Student 1;

(c) eating lunch alone with Student 1;

(d) frequently spending time alone with Student 1, including over lunch hour and after school, on school grounds. Some of the meetings after school were in relation to Student 1’s role as a [XXX];

(e) exchanging personal and professional text messages with Student 1, including outside of school time;

(f) engaging in inappropriate personal conversations with Student 1, which included discussing:

(i) intimate details of the Member’s life; and

(ii) intimate details of Student 1’s life, including her sexual relationship with her then boyfriend; and

(g) making sexual remarks to Student 1, including:

(i) comments to the effect of, “Just come kiss me, nobody is going to know, it’s worth it”;

(ii) sexual jokes such as, “I could rock your world”;

(iii) telling Student 1, “You’re the only student I’ve ever had this kind of connection with”;

(iv) telling Student 1, “You’re so sexy”; and

(v) comments to the effect of, “Your ass looks amazing”.

7. After Student 1 graduated from the School, in or around June [XXX], the Member and Student 1 continued to see each other. Student 1 returned to the School to see the Member on several occasions. The Member also continued to text Student 1, including on her birthday and around holidays.

8. On one occasion, in or about June [XXX], when Student 1 was [XXX] years old:

(a) the Member took Student 1 out for dinner and drinks, which the Member purchased;

(b) during the dinner, Student 1 became intoxicated;

(c) while walking back to the Member’s home, where Student 1 had intended to call an Uber, the Member took Student 1 to the side of the road and “made out” with her.

9. On or about March 5, 2020, the Board initiated an investigation into the Member’s conduct. The Member was removed from his teaching duties pending the outcome of the Board’s investigation.

10. On July 2, 2021, the Member resigned from his employment with the Board before it had completed its investigation.

PLEA OF NO CONTEST

11. By this document, the Member pleads no contest, for the purposes of this proceeding only, to the truth of the facts and appendices referred to in paragraphs 1 to 10 above (the “Uncontested Facts”).

12. The Member hereby acknowledges that paragraphs 6-8 of the Uncontested Facts constitute conduct that is professional misconduct and pleads no contest to the allegations of professional misconduct made against him being more particularly breaches of Ontario Regulation 437/97 (Professional Misconduct) subsections 1(5), 1(7.2), 1(7.3), 1(18) and 1(19). The Member further acknowledges that the Uncontested Facts at paragraph 6 constitute sexual abuse of a student as defined in section 1 of the Ontario College of Teachers Act, 1996.

13. 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 (including the Appendices) 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 Discipline 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 him, or his legal counsel, and the College with respect to the penalty does not bind the Discipline Committee; and

(g) he understands and acknowledges that he is executing this document voluntarily, unequivocally, and with the advice of legal counsel or the opportunity to have obtained legal advice.

14. The Member provides this plea of no contest pursuant to Rule 3.02 of the Rules of Procedure of the Discipline Committee and Fitness to Practise Committee under protection of the Evidence Act, R.S.O. 1990, chapter E. 23, for the purposes of this proceeding under the Ontario College of Teachers Act, 1996, 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.

15. In light of the Uncontested Facts and circumstances and the plea of no contest, the Ontario College of Teachers and the Member submit that the Discipline Committee find the Member guilty of professional misconduct.

D. DECISION

10Having considered the Statement of Uncontested Facts and Plea of No Contest and the submissions of the parties, the Panel rendered an oral decision on November 14, 2022, finding that the Member engaged in acts of professional misconduct as alleged, contrary to Ontario Regulation 437/97, subsections 1(5), 1(7.2), 1(7.3), 1(18) and 1(19). The Panel also found that the Member engaged in sexual abuse of a student of a nature defined in section 1 of the Act.

E. REASONS FOR DECISION

11The Member did not contest the facts and appendices referred to in paragraphs 1 to 10 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 paragraphs 6-8 of the Uncontested Facts constitute professional misconduct under the heads of misconduct set out above. The Uncontested Facts demonstrate that the Member engaged in inappropriate behaviour and an inappropriate personal relationship in which the Member made various remarks of a sexual nature to Student 1 while she was a student. After Student 1 graduated, the Member continued to spend time with her and, on one occasion when she was [XXX] years old, took her out for dinner and drinks and “made out” with her on the side of the road.

12The Panel found that the Member breached the standards of the profession, contrary to subsection 1(5) of Ontario Regulation 437/97. College Counsel submitted and the Panel accepts that misconduct of the nature committed by the Member (i.e., making remarks of a sexual nature to a student) is so notorious and offside of what is acceptable that expert evidence regarding the standards is not required to prove that the standards were breached.¹

13The Member psychological or emotionally abused Student 1, contrary to Ontario Regulation 437/97, subsection 1(7.2). Student 1 was not only the Member’s student, but also interacted with his family. The Member was not only initially Student 1’s teacher, but he also assumed a significant role in her life in spending time with her outside of school and in personal settings. Given the unequal power dynamic in their relationship, it was psychologically or emotionally abusive for the Member to engage in a personal relationship with Student 1, and even more so abusive given the Member’s actions whilst engaged in this relationship. Not only did he spent time alone with Student 1, but he bought her gifts and discussed intimate details about their lives, including her sexual relationship with her then-boyfriend. He also made various sexual remarks to her about her body and pressured her to kiss him. The Panel finds that this kind of behaviour coupled with the unequal power dynamic would have negative impact on Student 1’s psychological or emotional development. Instead of ensuring Student 1’s safety and thereby upholding his responsibilities as a teacher, the Member engaged in an abhorrent breach of trust that was abusive to Student 1, who was vulnerable to such influence.

14The Panel also finds that the Member sexually abused Student 1, contrary to subsection 1(7.3) of Ontario Regulation 437/97 and as defined in section 1 of the Act. The Act defines sexual abuse as including behaviour or remarks of a sexual nature by the member towards the student. The Member made various remarks of a sexual nature to Student 1. He discussed intimate details of her sexual relationship with her then boyfriend; he asked her to kiss him; he made sexual jokes; and he told her “you’re so sexy” and “your ass looks amazing.” Sexual comments of this nature from a teacher to a student constitute sexual abuse as defined in the Act.

15The Panel finds that the Member has engaged in conduct that would reasonably be regarded by members as disgraceful, dishonourable or unprofessional, contrary to Ontario Regulation, subsection 1(18). The Member demonstrated a complete lack of integrity and abused his power over Student 1 by engaging in a personal and sexual relationship with her, that continued after the student graduated. The Member bought Student 1 dinner and alcoholic drinks to the point that she got intoxicated and then kissed her. His conduct was clearly not a momentary lapse in judgment. He intentionally built a relationship with her as a student. The Member engaged in an inappropriate relationship with Student 1 while she was a student by buying Student 1 gifts and food and engaging in inappropriately personal and sexual conversations with her. The Member then continued to engage with her inappropriately after she had graduated continued to pursue his inappropriate relationship with Student 1 after she had graduated, including by continuing to see her and to text her, and on one occasion, by taking her out to dinner, buying her alcoholic drinks, and kissing her. In so doing, the Member showed a blatant disregard for Student 1’s well-being and very poor moral and professional judgment.

16Finally, the Panel found that the Member’s conduct was unbecoming a member, contrary to subsection 1(19) of Ontario Regulation 437/97. Teachers are entrusted with the care of students and one of their fundamental responsibilities is to ensure students’ safety and well-being. Public confidence in teachers is undermined when members engage in acts of abuse, especially sexual abuse, of students. The Member’s behaviour seriously erodes the reputation of the teaching profession, as it is a clear example of a member abusing their position of power, trust and authority over a vulnerable student, by engaging with a student into what eventually developed into an inappropriately personal and sexual relationship.

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 November 14, 2022, the Panel accepted the Joint Submission on Penalty and made the following order:

1. 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; 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

18The 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. These mandatory penalty provisions apply retrospectively in this case pursuant to section 63.2 of the Act.²

19The 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 plea of no contest and joint submission on penalty, particularly given the high threshold that must be met before rejecting a joint submission on penalty.

20The Panel denounces the Member’s misconduct in the strongest terms.

Footnotes

1. 1Novick v. Ontario College of Teachers, 2016 ONSC 508, established that the College should generally present expert evidence on the standards of the profession, unless the conduct is so notorious and so manifestly contrary to the standards that expert evidence is not required.
2. 2Although this mandatory penalty provision was not in force at the time of the Member’s sexual abuse of Student 1, 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.