DISCIPLINE COMMITTEE OF THE ONTARIO COLLEGE OF TEACHERS

Citation: Ontario College of Teachers v Grimstead 2022 ONOCT 53

Date: 2022-05-13

REINSTATEMENT 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 an application for reinstatement by Jeremy Peter Grimstead.

BETWEEN:

ONTARIO COLLEGE OF TEACHERS

– and –

JEREMY PETER GRIMSTEAD (REGISTRATION #464291)

PANEL: Rebecca Forte, OCT, Chair Rachelle Coleman Damienne Lebrun-Reid

HEARD: February 25, 2022

Jordan Stone, for the Ontario College of Teachers Jerry Raso, for Jeremy Peter Grimstead Erica Richler, 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 sexual misconduct, a prohibited act involving child pornography, or a prescribed sexual act.

By order of the Honourable Justice N. Karam of the Superior Court of Justice, there is also a publication ban on any information that could identify a victim or a witness in this matter, pursuant to subsection 486.4 of the Criminal Code.

1This is an application for reinstatement by Jeremy Peter Grimstead (the “Member”) pursuant to subsection 33(1) of the Ontario College of Teachers Act, 1996 (the “Act”).

2The Member’s application for reinstatement was heard electronically before a panel of the Discipline Committee (the “Panel”) of the Ontario College of Teachers (the “College”) on February 25, 2022, in accordance with rule 8.01 of the Rules of Procedure of the Discipline Committee and of the Fitness to Practise Committee. The Member attended the hearing and had legal representation. The College opposed the application.

3After considering the evidence and the submissions of the parties, the Panel denies the Member’s application for reinstatement. The Panel directs the Registrar to immediately revoke the Member’s Certificate of Qualification and Registration (“Certificate”). The following are the Panel’s reasons for its decision.

A. PUBLICATION ban

4The Panel ordered a publication ban pursuant to subsection 32.1(3) of 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.

5Additionally, a publication ban was ordered pursuant to subsection 32.1(4) of the Act at the request of College Counsel on behalf of the Student (as she was referred in the Notice of Hearing dated January 11, 2008), who was sexually abused by the Member.

6The Panel also received a certified copy of the transcript of the Proceedings at Trial from the Member’s criminal proceeding before the Honourable Justice N. Karam of the Superior Court on May 26, 2008 (Exhibit 5) which indicated that Justice Karam made an order restricting publication pursuant to section 486.4 of the Criminal Code (Canada). The Panel is required to uphold this publication ban. Accordingly, any information that could identify a victim or a witness involved in this matter shall not be published in any document or broadcast or transmitted in any way.

7Accordingly, no person shall publish the identity of, or any information that could disclose the identity of the Student.

B. BACKGROUND

8The Member was granted his initial Certificate on June 23, 2003. On or about November 23, 2006, the Member was charged criminally with sexual exploitation, contrary to section 153(a) of the Criminal Code (Canada). On May 26, 2008, the Member pled not guilty to this charge, and instead pled guilty to the charge of common assault, contrary to section 266 of the Criminal Code (Canada). The Member was convicted of common assault, given a suspended sentence, and placed on probation for 12 months. On April 15, 2009, a panel of the College’s Discipline Committee (“2009 Panel”) found that the Member had engaged in professional misconduct contrary to Ontario Regulation 437/97, subsections 1(5), 1(7) – sexual abuse only, 1(14), 1(15), 1(16), 1(17), 1(18), and 1(19). The 2009 Panel also held that the Member had engaged in sexual abuse of a student contrary to sections 1 and 40(1.1) of the Act¹ for having engaged in conduct that included the sexual touching of a female grade [XXX] student during the 2005-2006 academic year.

9On July 9, 2009, the 2009 Panel ordered the following penalty, reported in Ontario College of Teachers v. Grimstead, 2009 ONOCT 22:

1. The Registrar is directed to suspend the Member’s certificate of qualification and registration for a period of two (2) years commencing from the date of this written decision;

2. The Member is directed to attend before the Committee at a date to be determined, following the hearing of the matter to receive a reprimand, which reprimand is to be recorded on the public register of the Ontario College of Teachers;

3. The Registrar is directed to place the following terms, conditions and limitations on the Member’s certificate of qualification:

(a) prior to returning to employment where a certificate of qualification and registration is required, the Member shall complete a course of instruction at his expense by a practitioner, pre-approved by the Registrar, regarding maintaining appropriate boundaries in student-teacher relations and within (30) days of his completion of this course, he shall provide evidence to the Registrar in writing, of his successful completion of same;

(b) prior to the Member returning to employment, he shall also provide to the Registrar a written certificate from a psychologist indicating that he or she has reviewed a copy of the Decision and Reasons of the Discipline Committee relating to this matter and that he or she has examined the Member, at the Member’s expense, no earlier than sixty (60) days before the intended date of return to work, and found that the Member is able to return to full-time classroom duties without causing risk of harm or injury to students or the school community;

(c) prior to the commencement of his employment, the Member shall provide a copy of the Decision and Reasons of the Discipline Committee relating to this matter to his employer and he shall request that his employer conduct a performance appraisal each school year for two (2) years. The Member shall provide copies of the reports of such performance appraisals to the Registrar within thirty (30) days of their completion of his receipt of same, whichever is the later. If two assessments of the Member’s performance are not carried out within the two years, the Member shall inform the Registrar.

4. Pursuant to section 30(5)(3) of the Act, the findings and order of the Committee shall be published in summary, with the name of the Member in the official publication of the College, Professionally Speaking/Pour parler profession.

10The Member’s Certificate was suspended on July 9, 2009 in accordance with the 2009 Panel’s order. It was reinstated on July 9, 2011, subject to the terms, conditions, and limitations ordered by the 2009 Panel.

11The Member’s Certificate was subsequently revoked on December 8, 2020 when section 30.3 of the Act came into force. Section 30.3 provides the following:

30.3 A member’s certificate of qualification and registration is deemed to be revoked as of the day this section comes into force if, before that day, an order was made by the Discipline Committee under subsection 30(4) or (5) in which the member was found guilty of an act of professional misconduct consisting of or including sexual abuse of a student or a prohibited act involving child pornography and,

(a) the Discipline Committee did not order a revocation of the Member’s certificate of qualification and registration; or

(b) the Discipline Committee ordered a revocation but the member’s certificate of qualification and registration was later reinstated under subsection 33(6) or 34(1).

Because the Member’s Certificate was not revoked on July 9, 2009, following the Discipline Committee’s finding of professional misconduct which included the sexual abuse of a student, it was deemed to be revoked on December 8, 2020 when section 30.3 came into force.

12The Member provided the College with proof of his pardon (Exhibit 12) which was granted on January 4, 2019 (Exhibit 10). The Member’s Certificate was therefore reissued on January 11, 2021 in accordance with subsection 33(4.3) of the Act. Subsection 33(4.3) of the Act provides the following:

33(4.3) With respect to a person referred to in subsection (4.2) whose certificate of qualification and registration was deemed revoked pursuant to section 30.3, if the conviction was overturned on appeal or the person was granted a pardon under the Criminal Code (Canada) before the day this section comes into force and the person makes an application under subsection (1) of this section within 60 days of the revocation under section 30.3 and provides proof that the conviction was overturned or the pardon was granted,

(a) the Registrar shall issue a certificate to the applicant immediately upon receiving the application and proof; and

(b) the member may hold the certificate until the Discipline Committee has made an order under subsection (6) of this section.

13On September 30, 2021, following the Member’s application for reinstatement, the Registrar issued a Notice of Hearing of Reinstatement Application that gave rise to this proceeding.

C. THE EVIDENCE

(1) The Member’s Evidence Presented at the Reinstatement Hearing

14The Member testified at the Reinstatement Hearing. The Member provided the Panel with his Curriculum Vitae (Exhibit 4) and testified that, following the 2009 Panel’s Decision and Order, the Member went back to school to pursue further studies and a career in the biological sciences. He obtained two diplomas from Sir Sandford Fleming College in Fish and Wildlife Technology, as well as a Master of Science in Geography with Environment and Sustainability degree from the University of Western Ontario. The Member has received several awards and grants related to his studies; participated in various conferences, seminars, and associations in his field; was a teaching assistant and active volunteer in his field; obtained numerous certificates; and published an article in an academic journal. The Member has worked continuously through various work contracts since 2012 onward (Exhibit 3) without any issues and has not been terminated for cause from any of these positions. He started working with the Ontario Public Service in 2018; has worked with the land and water division of the Ontario government since 2019; and as of January 10, 2022, obtained full-time permanent work with the Ministry of Northern Development, Mines, Natural Resources and Forestry.

15The Member provided the Panel with six letters in support of his reinstatement application (Exhibit 13), including from a former teacher colleague who was his department head between 2003 and 2006 and from a former professor in the Bachelor of Education program he completed at Nipissing University in 2003. The referees have known the Member for periods ranging between five years and over 40 years.

16The Member noted that the trial judge in the criminal proceedings had accepted his plea of guilt as an indication of the Member’s remorse (Exhibit 5) and testified during his reinstatement hearing that he was indeed remorseful then and is still remorseful for his actions. The Member advised that he completed all the terms of his probation ordered by the court and applied for and was pardoned in 2019 (Exhibit 10). The Member explained that he was only able to apply for a pardon in 2019 and not earlier, because of a change in the law that doubled the amount of time he had to wait to be granted a pardon.

17The Member acknowledged that he is not entitled to reinstatement; he understands that teaching is a privilege. He testified that he has done everything in his power to co-operate with the College and is proud of all the steps he has taken towards rehabilitation. He completed a boundaries course in 2010 (Exhibit 7) in accordance with the order of the Discipline Committee. The Member also completed the College’s Sexual Abuse Prevention Program in January 2022 (Exhibit 9) and has completed mandatory courses and certification in workplace and sexual harassment through his work with the Ontario government. The Member testified that he understands that it was his sole responsibility to ensure that a relationship did not develop with a student and that he needs to do all that he can to ensure it never happens again. He has become hyper-sensitive as a result of all that he has experienced, has gained strong clarity on professional boundaries, and understands that he is not to engage in relationships with students and their families outside of these boundaries.

18The Member provided the Panel with a psychological assessment report dated October 2, 2020, authored by Dr. Jeffrey Phillips (Exhibit 8). The Member also provided the Panel with names of psychotherapists and psychologists that either he or his counsel contacted, attempted to contact since November 2021, or intend to contact in the future to seek ongoing counselling (Exhibits 15 and 16) in accordance with the recommendations made by the 2009 Panel in their decision. None of the counsellors contacted were able to accept him as a client; however, the Member stated he made these efforts because he was considering a return to the teaching profession and was interested in doing what he could to support his reinstatement application. The Member testified that he has fostered mentorship relationships with several teacher colleagues and that he consulted with a counsellor at Sir Sanford Fleming for career guidance. The Member conceded to College Counsel’s suggestions that talking with colleagues and fostering mentorship relationships are not psychological therapy; and that he has not provided documentary evidence to support or substantiate what he discussed with his mentors.

19The Member stated his relationship with the Student began in an “organic” way during the 2005-2006 school year as a result of his getting to know her and her family as a [XXX] coach for her younger [XXX]. He would go to her house regularly on the weekend to play [XXX] with her family in their [XXX], and eventually entered into a “healthy” relationship with the Student and subsequently cohabited with her in a common law relationship. The relationship lasted until the Student ended it in 2011.

20At first, the Member stated that he did not know the Student well at school but when College Counsel presented him with the agreed statement of facts from his criminal proceedings (Exhibit 5), he agreed that he had worked closely with the Student including as the teacher advisor to the student [XXX] (of which the Student was [XXX]). When questioned by College Counsel, the Member agreed with College Counsel that the way the relationship began was wrong and he also acknowledged that it is a violation of a teacher’s position of trust and authority to enter into a romantic or sexual relationship with a student. The Member conceded that his criminal conviction and the subsequent discipline proceedings before the College in 2009, did not prompt him to end his relationship with the Student. In fact, he continued to engage in a relationship with the Student contrary to a court order prohibiting their contact and was arrested, in 2007, for breach of recognizance. Under cross-examination, the Member further stated that he did not think it was ethically wrong to continue dating the Student once she had graduated from high school and turned 18 years old.

D. The College’s Evidence

21College Counsel opposed the application for reinstatement and relied on the original hearing record (Exhibit 14) and their cross-examination of the Member in support of the College’s position.

E. SUBMISSIONS OF the Member

22Member’s Counsel reminded the Panel that the Member currently possesses an interim Certificate pending the outcome of this Reinstatement Hearing. As a result, Member’s Counsel submitted there is a presumption of reinstatement. Further, Member’s Counsel submitted that reinstatement is appropriate, considering the factors set out in Ontario College of Teachers v. Lamarche (14 August 2019, unreported, “Lamarche”):

1. the nature of the professional misconduct;

2. the character of the applicant at the time of the application;

3. the time elapsed since the misconduct;

4. the applicant’s efforts at rehabilitation;

5. whether there is a likelihood of the applicant repeating the misconduct;

6. the effect of reinstatement on the public trust in the profession;

7. whether the original penalty has served its purpose; and

8. whether the applicant possesses the skills and competence necessary to teach.

23Member’s Counsel made submissions about how each of the factors in Lamarche supported the Member’s reinstatement application. Member’s Counsel distinguished the circumstances of the Member’s case from that of Mr. Lamarche, noting in particular that Mr. Lamarche’s Certificate had been revoked by the Discipline Committee, whereas the Discipline Committee had determined that a suspension was appropriate in the Member’s case. Member’s Counsel also made submissions with respect to the appropriateness of the conditions proposed by College Counsel in the College’s alternative position.

F. submissions of college counsel

(a) Grounds for Denial

24College Counsel agreed with Member’s Counsel that the Panel should be guided by the factors set out in Lamarche; however, the College disagreed with the submission of Member’s Counsel that there is a presumption of reinstatement. Rather, College Counsel submitted that the burden of proof rests on the Member seeking reinstatement and asserted that the Member has failed to prove that reinstatement is appropriate. College Counsel submitted that the most significant factor weighing against the Member’s application was the nature of his underlying misconduct, which included sexual abuse of a student. Apart from the narrow exceptions set out in subsections 33(4.2) and 33(4.3) of the Act, the legislature has required the mandatory and permanent revocation of the Certificates of members who have been found to engage in sexual touching of a student, which indicates how seriously the legislature views the need to protect students from the sexually abusive conduct of members. The College also submitted that the evidence before the Panel, including the Member’s testimony during the reinstatement hearing, illustrated a lack of insight into his misconduct and insufficient efforts at rehabilitation. College Counsel urged the Panel to consider whether it is appropriate to accept even a low risk of recidivism, when balancing that risk against the need to ensure the protection of students and the public interest.

(b) Terms, Conditions and Limitations

25While the College opposed the reinstatement application, in the alternative, College Counsel asked the Panel to impose the following conditions on the Member’s Certificate if reinstatement were granted, namely that the Member:

(1) take a course on professional boundaries prior to starting a teaching position or any position that requires a Certificate;

(2) for a period of five years, provide copies of the 2009 Panel’s original decision and reinstatement decision to prospective employers prior to starting a teaching position or any position that requires a Certificate;

(3) undergo a yearly performance appraisal for a period of two years after obtaining a teaching position or any other position that requires a Certificate; and

(4) undergo therapy or counselling for a period of one year, with a minimum of six sessions with the treating professional.

College Counsel submitted that should the Panel reinstate the Member’s Certificate, these conditions would be necessary to ensure that the Member is up to date on the standards expected of members of the profession; that employers are fully aware of the Member’s misconduct and monitor him appropriately to protect students; to fulfil the original condition in the 2009 Panel’s order for performance appraisals; and to help the Member gain more insight into his misconduct and provide him with strategies to ensure that a similar incident will not reoccur. College Counsel encouraged the Panel to order any additional terms, conditions, or limitations it finds necessary to protect students.

G. advice of independent legal counsel

26Independent Legal Counsel (“ILC”) reviewed the reinstatement process set out in section 33 of the Act, and in particular how it applies to individuals whose Certificates were revoked for acts of misconduct of a sexual nature. ILC confirmed the Member is entitled to apply for reinstatement in accordance with subsections 33(4.2) and 33(4.3) of the Act and that the Panel can make any order provided in subsection 33(6) of the Act. ILC also confirmed that the appropriate test on a reinstatement application is the one set out in Lamarche. ILC noted that the conditions ordered by the 2009 Panel are currently on the public register and stated that they may need to be complied with if reinstatement is granted. ILC reminded the Panel of the criteria for assessing the credibility of the Member’s testimony and that the burden of proof in establishing that reinstatement is appropriate lies with the Member.

H. MEMBer’s response to ILC’s advice

27Member’s Counsel agreed with ILC’s advice that the burden of proof lies with the Member, and that Lamarche should guide the Panel’s determination of the Member’s reinstatement application, which was properly brought before the Panel. Member’s Counsel reiterated that the Member is amenable to the imposition of terms, conditions or limitations on the Member’s Certificate requiring him to complete courses on professional boundaries and to undergo counselling, but that he opposes the other two conditions sought in College Counsel’s alternative submissions.

I. College’s response to iLC’s advice

28The College did not have any further submissions or comments in response to ILC’s advice.

J. DECISION

29The Member bears the burden of demonstrating that reinstating his Certificate is appropriate and that it is in the public interest in accordance with the standard of proof set out in F.H. v. McDougall, 2008 SCC 53, [2008] 3 S.C.R. 41, which is proof on a balance of probabilities.

30Having carefully considered the evidence and the submissions of the parties, and having weighed the Lamarche factors, the Panel finds that the Member has not successfully proven, on a balance of probabilities, that the reinstatement of his Certificate is in the public interest. In accordance with section 33(6) of the Act, the Panel denies the application and directs the Registrar to revoke the Member’s Certificate with immediate effect.

K. REASONS FOR DECISION

(i) The Nature of the Member’s Professional Misconduct Weighs Against his Reinstatement

31The Panel agrees with College Counsel that the nature of the Member’s professional misconduct weighs heavily against his application for reinstatement. The Member was found guilty of professional misconduct, which included the sexual abuse of a student. His misconduct is, on its face, more egregious than that in Lamarche. Mr. Lamarche was found to have engaged in boundary violations with a student, and while there were concerns that he had engaged in grooming behaviour, there was no finding of sexual abuse in that case. The Member, on the other hand, sexually abused the Student by engaging in a relationship with her that involved sexual touching while she was a student at his school, and subsequently developed a romantic relationship with her that continued after she graduated. While grooming may lay the foundation for future sexual contact between a member and a student, there is no question that the sexual abuse itself is more serious than the boundary violations that might lead to the sexual abuse. Moreover, unlike in Lamarche, the Member’s misconduct led to a criminal conviction. The Member was charged with sexual exploitation, but eventually pled to and was found guilty of common assault.

32Sexual abuse is among the most serious forms of misconduct that a teacher can commit. As noted in the agreed statement of facts from the Member’s criminal proceedings (Exhibit 5), teachers hold a position of trust and authority over students. Their position is inviolable. It vitiates any consent by a student to sexual touching. As the trial judge stated in his reasons for sentence, “romantic relationships, particularly involving sexual conduct, between teachers and their students are very serious matters and must be prevented in all circumstances” (Exhibit 5).

33The Panel agrees with College Counsel’s submissions that the legislature has indicated the seriousness of sexual abuse of students by enacting legislation (i.e., section 30.3 of the Act) in 2020 requiring the mandatory revocation of the Certificates of members who have been previously found guilty of professional misconduct for sexual abuse, including sexual touching of a student, but whose Certificates were not previously revoked. In the majority of cases, an individual whose Certificate has been revoked for sexual touching cannot apply for reinstatement (per subsection 33(1.1) of the Act).

34The Member’s case falls into a narrow category provided in subsections 33(4.2) and 33(4.3) of the Act, as an individual whose revocation related to a matter that led to a criminal conviction; but whose conviction was pardoned before section 30.3 came into force and who provided the College with proof of his pardon and made an application for reinstatement within a prescribed time period. As a result of the combination of subsections 33(4.2) and 33(4.3) of the Act, the Member is permitted to apply for reinstatement and he was, accordingly, granted an interim Certificate pending the outcome of the reinstatement hearing. If the Member had not been convicted criminally and subsequently pardoned, but nevertheless had been found guilty of sexual abuse by the 2009 Panel for his sexual touching of the Student, his Certificate would be mandatorily revoked without an opportunity for reinstatement.

35The unique and limited nature of subsection 33(4.2) of the Act underscores the seriousness of sexual touching of a student by members. Sexual abuse involving physical contact of a sexual nature of a student demands the most severe outcome possible.

(ii) The Member’s Character at the Time of his Application does not Weigh in favour of Reinstatement

36The Panel finds that the Member has not produced sufficient evidence of his good character to demonstrate that public confidence would be preserved by his reinstatement.

37The Panel recognizes that the Member has made significant efforts with respect to his new career in the biological sciences. It is clear from his Curriculum Vitae (Exhibit 3) that the Member has been dedicated in his pursuit of continued education including by obtaining his diplomas and a Master’s degree, and has actively contributed to his new field as, among other things, a volunteer and speaker at various conferences and associations. He has had continuous employment since 2012 through various work contracts, without any employment issues and he now has full-time permanent employment with the Ontario government in his new field. The Panel also recognizes that the six references provided by the Member (Exhibit 13) spoke highly of him as an educator and friend. The Panel does not question the genuineness of these individuals’ support for the Member.

38The issue for the Panel, however, is not whether the Member is able to pursue and succeed in a new field, whether he is a loyal and trustworthy friend, or whether he is passionate about education and is a talented teacher. In so far as assessing his good character, the Panel considered whether the Member “demonstrated awareness that his behaviour was reprehensible, he expressed sincere remorse, and he accepted responsibility for his prior misconduct” (Lamarche at paragraph 42).

39On the one hand, the Member testified that he was remorseful for his actions in 2008 and continues to be hyper-sensitive and clear on what it means to maintain appropriate boundaries with students. Additionally, several of the reference letters characterized the Member as being, among other things, “a highly moral person”, “ethical”, a “role model”, a “man of honour and conviction” and stated that the Member has taken responsibility for his misconduct (Exhibit 13).

40However, the Member told Dr. Phillips in 2020, that the Student “was not ever taught by [the Member] and he only came to know her outside of any school context” and that their relationship “developed in a natural and organic fashion” (Exhibit 8). The Member initially made the same statements during the reinstatement hearing, until College Counsel presented him with the agreed statement of facts from his criminal proceedings (Exhibit 5) which state that: the Member had been the Student’s [XXX] teacher when she was in grade [XXX]; the Student was student [XXX] [XXX] in 2005-2006 and the Member was a teacher advisor to student [XXX] at that time; and the Student worked closely with the Member under his guidance and supervision. The Member also maintained during cross-examination, that his relationship with the Student developed naturally and that while he acknowledged that it would be a violation of his position of trust and authority to engage in a relationship with a student, he did not think that it was ethically wrong to continue his relationship with the Student once she graduated. The Member also admitted that he was arrested in 2007 and charged with breach of recognizance for attending a [XXX] with the Student, notwithstanding a court order that prohibited their contact.

41The Member’s statements to Dr. Phillips and his testimony during the reinstatement hearing call into question the Member’s credibility and character, as well as his current insight into his misconduct and his understanding of the ethical standards for the teaching profession. The Member’s lack of insight into the deeply concerning nature of his misconduct has been repeatedly demonstrated since his criminal proceedings in 2008, at which point his (then) counsel submitted that the Member’s sexual relationship with the Student was “something that he didn’t plan for, he didn’t seek out, but it literally, as he describes it, literally happened” (Exhibit 5). Similarly, the Member expressed to Dr. Pollock in 2009 that, “He is not sure if the relationship is wrong. From an ethical standpoint he is undecided but he understands that ‘from a teacher’s perspective it’s one of those known things – not to get involved with students.’ He does not feel their age difference is a problem” (Exhibit 14 at Tab 9).

42The Panel finds that the Member has not met his burden of proving that his character at the time of the application was at a level that he could be trusted as a member of the teaching profession.

(iii) The Time Elapsed Since the Member’s Professional Misconduct does not Weigh in favour of Reinstatement

43The mere passage of time does not necessarily mean that a member’s Certificate should be reinstated. It may weigh in favour of a member’s application, as was the case in Lamarche, where Mr. Lamarche was credited for having waited 18 years to bring his reinstatement application and did not hastily apply (see Lamarche at paragraph 30). However, in the Member’s case, the Panel does not believe that the significant passage of time has afforded the Member any new insight into the concerning nature of his misconduct nor has the Member used the passage of time to engage in counselling or to take any active steps towards rehabilitation. Despite testifying that he has reflected upon his actions, accepts that it was his sole responsibility to ensure that a relationship did not develop with the Student, and understands that it is a privilege to hold an Ontario teaching certificate, the Member also testified or made statements (as described above) which indicate that he did not see himself as an active participant in the formation and continuation of a relationship which was unethical, unprofessional, and illegal. The Panel, therefore, does not find, on a balance of probabilities, that the Member has engaged in self-reflection such that he appreciates the gravity and wrongful nature of his actions, despite the significant passage of time since the underlying misconduct.

(iv) The Member’s Efforts at Rehabilitation do not Weigh in favour of Reinstatement

44The Panel recognizes that the Member has been successful at finding new employment, and that similar behaviour was one indication of successful rehabilitation in Lamarche (see Lamarche at paragraph 46). However, in the Panel’s opinion, the fact that Mr. Lamarche was successful in finding new employment was secondary to his having made significant efforts to address the problems that were a major contributing factor to his prior misconduct. Mr. Lamarche committed himself to rehabilitation, growing his support network, seeking help with the issues that contributed to his misconduct, getting counselling, and continuing with treatment from the same clinic for many years.

45In contrast, the Member has had ample time in the 12 years since the discipline decision to take steps to ensure he understands the underlying motivations for his misconduct and to address the factors that contributed to his misconduct but has not done so.

46The Panel recognizes that the Member admitted his conduct during the criminal proceedings and pled guilty to the criminal offence of common assault. He also did not contest the allegations of professional misconduct during his discipline proceedings. The Panel notes the Member has also complied with the term, condition or limitation ordered by the 2009 Panel that he successfully completed a course on maintaining appropriate boundaries in student teacher relations, which he did by completing a course called Relationships: Appropriate and Professional on January 8, 2010 (Exhibit 7).

47However, the Panel is not satisfied that the Member has sought sufficient help to identify and address the issues that contributed to the misconduct. While it was not ordered, the 2009 Panel recommended “ongoing counseling as the Member needs to explore more fully the psychological dynamics which lead [sic] him to jeopardize his career” considering “public protection and the potential risk of harm to future students” (Exhibit 6). Dr. Pearce, in his report dated April 19, 2008, notes that the Member “indicated his willingness to participate actively in any treatment as recommended by either myself or his licensing body” (Exhibit 14 at Tab 7). Dr. Pearce suggested that the Member participate in “psychological therapy, to enable him to gain more insight into his offending behaviour. Such therapy may also reduce his risk of recidivism” (Exhibit 14 at Tab 7). As well, Dr. Pollock, in his report dated February 9, 2009, noted that the Member is “willing to accept direction from his governing body” and opined that the Member “needs to explore more fully in counselling the psychological dynamics which led him to jeopardize his career by becoming involved with [the Student]” (Exhibit 14 at Tab 9). Yet, despite the professional opinions of both Dr. Pearce and Dr. Pollock, and the recommendations of the 2009 Panel, the Member has not undertaken psychological counselling in the past 12 years.

48The Member did recently complete the College’s Sexual Abuse Prevention Program in January 2022 (Exhibit 9). He also testified that he has sought mentorship from teacher colleagues and sought counselling while he was pursuing one of his college diplomas. The Member did not provide additional evidence to support this testimony. He also provided some evidence of having contacted several psychologists and psychotherapists for counselling since November 2021 (Exhibits 15 and 16) but testified he has not yet been accepted as a client by any counsellor.

49Apart from these most recent events, which the Member indicated was done to support his reinstatement application, the Panel did not receive any evidence that the Member has undertaken any significant efforts since 2010 toward gaining insight into his misconduct and addressing his misconduct in a meaningful way. If the Member was serious about rehabilitation, he would have made serious attempts at receiving counselling early on, before November 2021.

(v) The Likelihood of the Member Repeating the Behaviour does not Weigh in favour of Reinstatement

50Given the serious nature of the Member’s misconduct, the risk of recidivism is an important consideration for the Panel. The reports of Dr. Pearce (Exhibit 14 at Tab 7) and Dr. Pollock (Exhibit 14 at Tab 9) from the original proceedings, and more recently from Dr. Phillips in 2020 (Exhibit 8) suggest there is a low risk of recidivism. Given the current legislative framework under the Act, which was recently amended to make it very difficult for members to return to the teaching profession after engaging in the type of sexual abuse at issue in this case (i.e., sexual touching), the Panel finds that it is in the public interest to only grant the reinstatement of such members in the narrowest of circumstances. Certainly, the Member had a right to apply for reinstatement given the unique circumstances of his case in which he received a pardon for his past conviction; however, the risk analysis remains an important consideration because the Panel plays a central role in ensuring the safety of students through its orders.

51Despite the medical reports that indicate that the member is at low risk of reoffending, the Panel finds that the Member’s lack of insight, accountability or efforts to understand and address his original conduct through counselling, create some risk that he might reoffend. The Member had years to remediate his behaviour but took limited steps during the decade before his application for reinstatement. He has not demonstrated that he has gained significant insight into the dynamics, psychological or otherwise, that contributed to his misconduct. In the circumstances, and given the legislature’s clear intent to protect students and to not allow members who have engaged in sexual abuse to maintain their teaching certificates or, generally, to return to the profession, the Panel finds that the Member has not demonstrated that risk to students has been displaced. Reinstatement of the Member’s Certificate would create an unacceptable level of risk to students in these circumstances.

(vi) Reinstatement would Negatively Affect the Public’s Trust in the Profession

52The Panel finds that reinstatement of the Member’s Certificate would negatively affect the trust and confidence of the public in the teaching profession. The Member sexually abused a student, which is among the most egregious forms of professional misconduct. He has not demonstrated that he has undertaken significant introspection. He maintained, even during his reinstatement hearing, that his relationship with the Student developed in a natural way and that it was not unethical to continue a relationship with her. Moreover, given that he intentionally continued his relationship in the face of a court order prohibiting their contact, and despite criminal and discipline proceedings against him, the Panel is not confident that terms, conditions, or limitations would sufficiently address the public interest and public safety considerations at hand. The public and the profession hold teachers to high professional and ethical standards. In the circumstances of this case, it would not promote public confidence in the profession to allow a member, who has previously sexually abused a student, to return to the profession.

(vii) The Original Penalty has not sufficiently Served its Purpose

53The original penalty in the Member’s 2009 discipline proceeding included a reprimand, a two-year suspension, and the imposition of terms, conditions or limitations, which included the successful completion of coursework regarding appropriate professional boundaries, a psychological assessment, and employer reporting and performance appraisal requirements. The 2009 Panel also recommended the Member undergo counselling. The purpose of the Member’s penalty and the panel’s recommendation in 2009 was to allow for rehabilitation and to serve both as a specific deterrent to the Member and a general deterrent for the profession. As noted above, the Member has not proven to the Panel, on a balance of probabilities, that he has made sufficient efforts at rehabilitation. Additionally, the Panel is not satisfied that the Member has gained sufficient insight into his misconduct following his completion of the professional boundaries course, or that he fully appreciates the importance of maintaining appropriate professional boundaries with students. Notably, the evidence presented in this case demonstrated that the Member still believes that the development of his relationship with the Student was natural, and that it was not ethically wrong to continue their relationship once the Student graduated. As such, the Panel does not find that the original purpose of the penalty has been achieved, which weighs against the reinstatement of the Member’s Certificate.

(viii) The Member’s Skills and Competence

54The College did not take issue with the Member’s teaching abilities and competence and the Panel considers this a neutral factor. The underlying misconduct was not about teaching or competence in the classroom, but rather the Member’s ability to conduct himself in an ethical manner and to maintain appropriate professional boundaries with students.

L. Conclusion

55It is a privilege to be a member of the College. The consequences of abusing that privilege are grave, especially when a member engages in a serious breach of their position of trust and authority by engaging in the sexual touching of a student. Such misconduct constitutes sexual abuse under the Act, and now requires the mandatory revocation of a member’s Certificate; generally, without the opportunity to apply for reinstatement. The legislature has allowed a narrow exception to this restriction on reinstatement in subsection 33(4.2) of the Act. This is a second chance that must not be granted lightly, but it should also not be impossible to attain where the individual circumstances support reinstatement.

56The Panel has a duty in accordance with section 16(1) of the Act, to serve and protect the public interest. Having considered the parties’ submissions, the evidence presented by the Member, and the totality of the circumstances in this case, the Panel finds that the reinstatement of the Member’s Certificate is not appropriate. The Member has not shown sufficient insight into and responsibility for his actions such that the public confidence in the teaching profession would be maintained if the Member’s reinstatement application were granted.

Footnotes

1. 1At the time of the Member’s misconduct and when the Notice of Hearing for the discipline proceedings was issued, sexual abuse was addressed in subsection 1(7) of Ontario Regulation 437/97 and sections 1 and 40(1.1) of the Act. Subsection 1(7) of Ontario Regulation 437/97 (at that time) referred to any or all of the following forms of abuse committed by a member against a student: verbal, physical, psychological or emotional, and sexual abuse. The Member was found guilty of sexual abuse only.