Ontario College of Teachers v. Ganuelas, 2022 ONOCT 35

DISCIPLINE COMMITTEE OF THE ONTARIO COLLEGE OF TEACHERS

Citation: Ontario College of Teachers v Ganuelas 2022 ONOCT 35

Date: 2022-04-05

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 Anthony Naguit Ganuelas, a member of the Ontario College of Teachers.

BETWEEN:

ONTARIO COLLEGE OF TEACHERS

– and –

ANTHONY NAGUIT GANUELAS (REGISTRATION #516387)

PANEL: Rebecca Forte, OCT, Chair Andrew Glenny Terrence Singh, OCT

HEARD: April 1, 2022

Zirka Jakibchuk, for the Ontario College of Teachers No one appearing for Anthony Naguit Ganuelas Erica Richler, 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.

By order of Justice J. Dawe 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 April 1, 2022, in accordance with rule 8.01 of the Rules of Procedure of the Discipline Committee and of the Fitness to Practise Committee.

2Anthony Naguit Ganuelas (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.

4The Panel also received a certified copy of the transcript of the Guilty Plea from the Member’s criminal proceeding before Justice J. Dawe dated November 18, 2020 (Exhibit 2 at Appendix D). 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

5The allegations against the Member in the Notice of Hearing dated November 26, 2021 (Exhibit 1) are as follows:

IT IS ALLEGED that Anthony Naguit Ganuelas 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 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);

(c) 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);

(d) 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);

(e) 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);

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

C. AGREED STATEMENT OF FACTS

6College Counsel presented the Panel with the parties’ Agreed Statement of Facts and Guilty Plea (Exhibit 2), which provides the following:

1. Anthony Naguit Ganuelas is a member of the Ontario College of Teachers. Attached hereto and marked as Appendix “A” is a copy of the Ontario College of Teachers Registered Member Information with respect to the Member.

2. At all material times, the Member was employed by the York Catholic District School Board (the “Board”) as a teacher at [XXX] School (the “School”) in Richmond Hill, Ontario. The Member also coached [XXX] at the School.

3. At all material times, Person A was a [XXX]-year-old male who formerly attended the School and played [XXX] on a School team coached by the Member.

4. At all material times, Person B was a male who formerly attended the School and played [XXX] on a School team coached by the Member. Person B was a few years older than Person A.

5. For several years, the Member organized alumni [XXX] tournaments for former [XXX] players of the School.

6. On or about December 22, 2018, at a hotel party in [XXX], after one of these alumni [XXX] tournaments, the Member had unwanted sexual contact with Person A. Specifically, the Member removed Person A’s clothing and performed several sexual acts on Person A without his consent, including analingus and digital penetration of Person A’s anus.

7. Person A immediately disclosed what had happened to Person B, who was also present at the party. Person B then revealed to Person A that the Member had had unwanted sexual contact with Person B at the hotel party after the previous year’s alumni [XXX] tournament.

8. On or about December 22, 2018, the Member was arrested and criminally charged with:

(a) one count of sexual assault on Person A, contrary to section 271 of the Criminal Code (Canada) (the “Code”); and

(b) one count of sexual assault on Person B, contrary to section 271 of the Code.

9. On or about November 16, 2020, the Member resigned from his employment with the Board.

10. On November 18, 2020, the Member was found guilty of one count of sexual assault on Person A, contrary to section 271 of the Code. The other count was withdrawn at the request of the Crown.

11. On January 6, 2021, the Member was sentenced to two years’ incarceration and made subject to various ancillary orders.

12. The Member did not appeal his conviction or sentence.

13. Attached hereto and marked as Appendix “B” are certified copies of the Court Information sworn January 4, 2019, the Indictment dated January 28, 2020, appearances/endorsements, and the disposition in the criminal matter.

14. Attached hereto and marked as Appendix “C” are certified copies of the Prohibition Order Imposed on Sentencing and the Non-Communication Order, dated January 6, 2021.

15. Attached hereto and marked as Appendix “D” is a certified transcript of the Guilty Plea before the Honourable Justice J. Dawe dated November 18, 2020.

16. Attached hereto and marked as Appendix “E” is a certified transcript of the Reasons for Sentence before the Honourable Justice J. Dawe dated January 6, 2021.

GUILTY PLEA

17. By this document, the Member admits the truth of the facts and appendices referred to in paragraphs 1-16 above (the “Admitted Facts”).

18. The Member hereby acknowledges that the conduct set out at paragraphs 6, 8 and 10-16 of the Admitted Facts constitutes 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(15), 1(16), 1(17), 1(18) and 1(19).

19. 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.

20. 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

7Having considered the Agreed Statement of Facts and Guilty Plea and the submissions of College Counsel, the Panel rendered an oral decision on April 1, 2022, finding that the Member engaged in acts of professional misconduct as alleged, contrary to Ontario Regulation 437/97, subsections 1(5), 1(15), 1(16), 1(17), 1(18) and 1(19).

E. REASONS FOR DECISION

8The Member admitted the truth of the facts and exhibits referred to in paragraphs 1 to 16 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 had unwanted sexual contact with Person A, a [XXX]-year-old former student. The Member was found guilty of sexual assault of Person A in his prior criminal proceeding.

9The 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 had unwanted sexual contact with Person A. Specifically, the Member removed Person A’s clothing and performed several sexual acts on Person A without his consent, as described above. The Member also climbed on top of Person A, grinded on him and attempted to penetrate him (Exhibit 2, Appendix D at page 39). The Member’s conduct towards Person A constituted sexual assault, for which he was found guilty in his prior criminal proceeding. Engaging in sexual assault is a clear breach of the standards of the profession. In particular, the Member breached the ethical standards of “Integrity” and “Trust”. The Panel notes that Person A was not a student at the time of the sexual assault. However, members hold a unique position of trust and authority. They are thus required to conduct themselves with honesty, reliability and moral action (“Integrity”) both inside and outside of the classroom. Moreover, their relationships with not only students and parents, but also with the public is based on trust. By sexually assaulting Person A, the Member acted unethically and breached the trust which Person A and the public placed in him. College Counsel submitted and the Panel accepts that misconduct of the nature committed by the Member is so notorious and offside of what is acceptable that expert evidence is not required to prove that the standards were breached.¹

10The 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. Section 264(1)(c) provides that it is the duty of a teacher to “inculcate by precept and example […] the highest regard for truth, justice, loyalty, love of country, humanity, benevolence, sobriety, industry, frugality, purity, temperance and all other virtues.” Simply put, teachers are expected to exemplify moral virtues and serve as positive role models, even when they are outside of the classroom. By sexually assaulting Person A, which is abhorrent and morally repugnant conduct, at a hotel party after consuming alcohol, the Member failed to model appropriate behaviour as required by his duties as a teacher.

11The Panel finds that the Member’s criminal finding of guilt for having breached section 271 of the Criminal Code demonstrates that he contravened a law relevant to his suitability to hold a Certificate of Qualification and Registration and which may cause a student who is under the member’s professional supervision to be put at risk, contrary to subsections 1(16) and 1(17) of Ontario Regulation 437/97. Members of the profession must be trusted to work closely with, and ensure the safety and well-being of, students. By engaging in a serious sexual offence towards a person whom the Member had formerly coached at the School, the Member demonstrated a lack of trustworthiness and a complete disregard for the safety and well-being of others. The Member’s criminal conduct and his lack of self-control therefore call into question his suitability to hold a teaching certificate and cast serious doubt on his ability to practise the profession without putting students at risk.

12The Member committed acts that would reasonably be regarded by members as disgraceful, dishonourable or unprofessional, contrary to subsection 1(18) of Ontario Regulation 437/97. It is unacceptable for teachers who are expected to be upstanding members of society to engage in sexual assault. The teaching profession does not tolerate such reprehensible conduct. Sexual assault is egregious conduct which shows moral turpitude and depravity as well as poor judgment by the Member. As such, the Member’s behaviour can be characterized as disgraceful, dishonourable, and unprofessional.

13The Member’s conduct was unbecoming a member, contrary to subsection 1(19) of Ontario Regulation 437/97. Teachers who engage in sexual assault undermine the trust which the public places in the teaching profession and tarnish the reputation of the teaching profession as a whole.

F. PENALTY DECISION

14The parties agreed to a Joint Submission on Penalty (Exhibit 3), which was presented to the Panel. In an oral decision rendered on April 1, 2022, the Panel accepted the Joint Submission on Penalty and made the following order:

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

2. The Registrar is directed to immediately revoke the Certificate of Qualification and Registration of the Member.

G. REASONS FOR PENALTY DECISION

15The 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 confines 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.² 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. Trinchi, 2020 ONOCT 134, Ontario College of Teachers v. Condy, 2021 ONOCT 131, and Ontario College of Teachers v. Bowles, 2021 ONOCT 135.

16The Panel considered the Member’s circumstances in comparison to the cases provided. There are several aggravating factors in the Member’s case as demonstrated by the Admitted Facts (more particularly at Exhibit 2, Appendix D, pages 39 and 58). Firstly, there is the nature and gravity of the Member’s conduct that led to his criminal finding of guilt for sexually assaulting Person A. Secondly, the Member’s conduct towards Person A was not a momentary lapse of judgment. After performing several sexual acts on Person A and attempting to penetrate him, the Member left the bed for a period and then returned, at which time he started touching Person A again. Thirdly, the Member’s conduct involved a former student that the Member coached, and who was only [XXX] years old at the time of the sexual assault. Finally, the Member’s actions caused physical and emotional harm to Person A. As a result of the Member’s digital penetration of Person A’s anus, Person A experienced physical pain. The sexual assault also caused Person A to feel scared and confused, to the point that he pretended to be unconscious during the assault. In terms of mitigating factors, the Member admitted his misconduct, saving the time and expense of a contested hearing, which prevented the victim from having to testify. The Member also has no prior discipline history. After weighing these factors, the Panel accepts that the penalty proposed by the parties is reasonable.

17The Panel finds that the Member’s sexual assault of Person A warrants a reprimand. Members of the teaching profession are expected to act as positive role models and to always adhere to the highest moral standards. The Member did the opposite. 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. In relation to the form of the reprimand, the Panel finds that a written reprimand is appropriate given the parties’ joint submission and the fact that the Member is incarcerated.

18Given the nature and gravity of the Member’s conduct, the Panel finds that the revocation of the Member’s Certificate of Qualification and Registration is appropriate in this case. The Member’s sexual assault of Person A was abhorrent and reprehensible. Although the Member’s conduct occurred outside of the classroom, teachers are held to a high standard even when they are “off duty” by virtue of the unique position of trust and authority that they hold within their communities. By performing sexual acts on Person A, without his consent, the Member violated Person A’s sexual integrity and has demonstrated a complete disregard for the physical and emotional safety of others. Such conduct demonstrates that the Member cannot be trusted to work as a teacher, where he would be responsible for the safety and well-being of children. The revocation 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 criminal misconduct the Member exhibited is unacceptable. In accordance with the parties’ joint submission, the Member’s revocation will take effect immediately.

19The Panel is satisfied that the penalty is appropriate in the circumstances and meets the principle of serving and protecting the public interest.

Footnotes

1. 1Novick v. Ontario College of Teachers, 2016 ONSC 508 established that expert evidence is generally required to prove a breach of 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. 2See R. v. Anthony-Cook, 2016 SCC 43, [2016] 2 S.C.R. 204, and Bradley v. Ontario College of Teachers, 2021 ONSC 2303.