Ontario College of Teachers v. Muldoon, 2022 ONOCT 95

Discipline Committee of the Ontario College of Teachers

Citation: Ontario College of Teachers v Muldoon 2022 ONOCT 95

Date: 2022-10-14

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 Geoffrey Matthew Muldoon, a member of the Ontario College of Teachers.

Between:

Ontario College of Teachers

– and –

Geoffrey Matthew Muldoon (Registration #461902)

Panel: Emma Rhodes, Chair Stefano Fornazzari, OCT Damienne Lebrun-Reid

Heard: October 6, 2022

Counsel: Zirka Jakibchuk, for the Ontario College of Teachers No one appearing for Geoffrey Matthew Muldoon Ahmad Mozaffari, 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 the Territorial Court of Yukon, 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 October 6, 2022, in accordance with rule 8.01 of the Rules of Procedure of the Discipline Committee and of the Fitness to Practise Committee.

2Geoffrey Matthew Muldoon (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 transcript of the Proceedings at Sentencing from the Member’s criminal proceeding before Justice Caldwell dated September 27, 2021 (Exhibit 2 at Appendix C). In these proceedings before the Territorial Court of Yukon, 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 July 27, 2022 (Exhibit 1) are as follows:

IT IS ALLEGED that Geoffrey Matthew Muldoon is guilty of professional misconduct as defined in the Act in that:

(a) he abused a student or students physically, contrary to Ontario Regulation 437/97, subsection 1(7.1);

(b) he abused a student or students psychologically or emotionally, contrary to Ontario Regulation 437/97, subsection 1(7.2);

(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 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. 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. Geoffrey Matthew Muldoon is a member of the Ontario College of Teachers (the “College”).

2. The Member obtained an Interim Certificate of Qualification and Registration with the College on February 11, 2003, and a Certificate of Qualification and Registration on April 17, 2008. On May 28, 2021, 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 as the head referee for the [XXX] Association [XXX] ") in [XXX], Yukon Territory. In this role, the Member provided training to minor-aged [XXX] referees both during designated courses as well as following [XXX]games which were held at the [XXX] Center ("[XXX]") or the [XXX].

4. At all material times, Student 1, Student 2, Student 3, Student 4 and Student 5 were male [XXX]referee trainees with the [XXX], who were all under the age of 16.

5. At all relevant times, there existed a policy stipulating that adults working for the [XXX] were not to be alone with any child unless with another adult. During each of the incidents described below, the Member was alone with each of Student 1, Student 2, Student 3, Student 4 and Student 5 in a changeroom either at the [XXX] or the [XXX].

Student 1

6. After refereeing a game at the [XXX] on November 30, 2019, Student 1 returned to the changeroom with a fellow [XXX] referee. The Member was also in the changeroom, so when the other referee left, Student 1 was left alone with the Member.

7. Student 1 and the Member were sitting on different sides of the room when the Member said, "time for the rookie treatment", which Student 1 believed the Member only did to his best referees. At the time, Student 1 was wearing a regular T-shirt and under-gear, but did not have shoes or socks on.

8. The Member walked over and picked Student 1 up and tickled Student 1’s feet. As the Member was walking towards the shower with Student 1 on his shoulders, Student 1’s mother entered the room. The Member put Student 1 down and left the room.

9. Student 1 felt uncomfortable about the incident and found it to be “weird”.

Student 2

10. Student 2 took the [XXX] referee training course in September 2019.

11. On two occasions, the Member asked Student 2 to do the "rookie treatment," picked Student 2 up, put him over his shoulder, turned the shower on, put Student 2's feet in the shower, and tickled Student 2’s feet.

12. Prior to picking Student 2 up, the Member explained what the "rookie treatment" was, describing it as picking someone up and putting their feet in the shower.

Student 3

13. In the Fall of 2019, Student 3 was taking the [XXX] referee course.

14. On one occasion, the Member asked Student 3 to push a dime across the floor with his nose. Although Student 3 did not want to, Student 3 gave in as the Member was being pushy.

15. The Member put a dime on the floor of the changeroom and Student 3 pushed the dime about six feet across the floor with his nose while the Member watched from behind.

16. Student 3 remembers the Member referring to this activity as something that all the best referees do and that it is part of a secret referee brother club. The Member believes that he may have told Student 3 that refereeing is like a brotherhood, but states that he did not suggest this group be a secret.

17. Further, following a game that Student 3 refereed, when the Member and Student 3 were alone in the changeroom, the Member lifted Student 3 up over his shoulders by grabbing his legs and hips. Student 3 told the Member, "No, no, put me down." The Member put Student 3 down and laughed.

18. Student 3 felt violated and creeped out as these were not typical fun [XXX] locker room pranks.

Student 4

19. Student 4 took the [XXX] referee training course in September and October of 2019.

20. There were four or five incidents where the Member tickled Student 4 without his consent. Each time, the Member and Student 4 were alone, and Student 4 felt uncomfortable.

21. On one occasion, the Member tickled Student 4 on his legs and toes while Student 4 was in the changeroom putting on his gear. Student 4 was clothed in long johns and shin pads when the Member tickled him.

22. Another time, the Member tickled Student 4 on his feet for approximately 10 seconds, and on his abdomen over his shirt for 10 to 15 seconds. The Member then picked Student 4 up, held him upside down, brought him to the showers, and told Student 4 he was going to soak his feet. Student 4 told the Member that he did not have spare socks, so the Member put him down and did not turn the shower on.

Student 5

23. Student 5 took the [XXX] referee course in the Fall of 2019, and then began working as a referee.

24. In November of 2019, Student 5 refereed his first game at the [XXX]. After this game, he returned to the changeroom with another minor referee. The other referee left, leaving Student 5 alone with the Member.

25. The Member began providing Student 5 with feedback about his refereeing, and then picked Student 5 up, put him on his lap (without Student 5’s consent), and tickled his feet. This happened on one occasion.

Criminal Proceeding/Guilty Finding

26. On October 27, 2020, the Royal Canadian Mounted Police charged the Member with five counts of assault, one count relating to each of Student 1, Student 2, Student 3, Student 4 and Student 5 respectively, contrary to section 266 of the Criminal Code (Canada) (“Criminal Code”).

27. On September 27, 2021, the Member pled guilty to and was found guilty of one count of assault relating to Student 1, Student 2, Student 3, Student 4 and Student 5 collectively, contrary to section 266 of the Criminal Code. The remaining charges were withdrawn at the request of the Crown.

28. On September 27, 2021, the Member was sentenced to a conditional discharge and three years’ probation. The conditions of the Member’s probation included, among other things, that he not have contact, directly or indirectly, with any individual under the age of 16 unless an adult third party is in the Member’s direct presence, and that he not participate in any capacity in sports involving those under the age of 18.

29. The Member was also ordered to pay a victim surcharge pursuant to section 737 of the Criminal Code.

30. The Member did not appeal his guilty finding and/or his sentence.

31. Attached hereto and marked as Appendix “B” is a certified copy of the Court Information and disposition in the criminal proceeding.

32. Attached hereto and marked as Appendix “C” is a certified transcript of the Proceedings at Sentencing before the Honourable Justice Caldwell on September 27, 2021, at [XXX], Yukon Territory.

33. Attached hereto and marked Appendix “D” is a copy of the Agreed Statement of Facts entered as an exhibit at the Proceedings at Sentencing, dated September 27, 2021.

34. Attached hereto and marked as Appendix “E” is a copy of the Reasons for Sentence of the Honourable Justice Caldwell dated September 27, 2021.

35. Attached hereto and marked as Appendix “F” is a copy of the Member’s Probation Order dated September 27, 2021.

36. Attached hereto and marked as Appendix “G” is a copy of the Member’s Victim Surcharge Order dated September 27, 2021.

GUILTY PLEA

37. By this document, the Member admits the truth of the facts and appendices referred to in paragraphs 1-36 above (the “Admitted Facts”).

38. The Member hereby acknowledges that the conduct set out at paragraphs 5-36 of the Admitted Facts constitutes professional misconduct and pleads guilty to the allegations of professional misconduct against him, being more particularly that he breached Ontario Regulation 437/97 subsections 1(7.1), 1(7.2), 1(16), 1(18), and 1(19).

39. 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.

40. 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 October 6, 2022, finding that the Member engaged in acts of professional misconduct as alleged, contrary to Ontario Regulation 437/97, subsections 1(7.1), 1(7.2), 1(16), 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 36 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 outlined at paragraphs 5 to 36 of Exhibit 2 constitute professional misconduct under the heads of misconduct set out above. The Admitted Facts demonstrate that the Member made inappropriate physical contact with five students.

9The Member abused students physically, contrary to subsection 1(7.1) of Ontario Regulation 437/97, by making inappropriate and unwanted physical contact with five students. Among other things, the Member picked the students up, tickled their feet, tickled their legs, put them over his shoulders, lifted Student 3 up over his shoulders by grabbing Student 3 by his legs and hips, and put Student 5 on his lap. The Panel finds that by doing so, the Member violated the students’ bodily integrity. The Member’s conduct therefore constitutes physical abuse. This finding is further supported by the fact that the Member was found guilty of one count of assault relating to the five students, in his prior criminal proceeding.

10The Member abused students psychologically or emotionally, contrary to subsection 1(7.2) of Ontario Regulation 437/97. The Member made unwanted physical contact with the five students and asked Student 3 to push a dime across the floor with his nose. Although Student 3 did not want to, Student 3 gave in as the Member was being pushy. The Member engaged in such conduct while he was alone with each student in the changeroom and while some of them were dressed in their undergear, and potentially in a vulnerable position. Given the power imbalance that exist between the Member and the students, the Member’s conduct in such circumstances would reasonably have had a negative psychological or emotional impact on the students. Indeed, the Panel has received evidence that Student 1 and Student 4 felt uncomfortable, and Student 3 felt violated and creeped out by the Member’s conduct. The Panel therefore finds that the Member psychologically or emotionally abused students.

11The Member contravened a law, the contravention of which is relevant to his suitability to hold a certificate of qualification and registration, contrary to subsection 1(16) of Ontario Regulation 437/97. In his role as the head referee for the [XXX], the Member provided training to minor-aged [XXX] referees. The Member abused his position of responsibility as the head referee by assaulting five referee trainees under the age of 16 in the program. Based on this conduct, the Member was found guilty of one count of assault, contrary to section 266 of the Criminal Code. Although the Member’s conduct occurred outside of the school setting, it is nevertheless relevant to his suitability to hold a teaching certificate, as both positions (teacher and minor-aged [XXX] referee trainer) require adults to work closely with children. Through his abusive conduct, the Member has proven to be untrustworthy when working with children. He repeatedly failed to provide a physically and emotionally safe space for children under his care. This finding is further supported by the fact that the conditions of the Member’s probation included, among other things, that he does not have contact, directly or indirectly, with any individual under the age of 16 unless an adult third party is in the Member’s direct presence, and that he does not participate in any capacity in sports involving those under the age of 18.

12The Member committed acts that having regard to all the circumstances would reasonably be regarded by members as disgraceful, dishonourable or unprofessional, contrary to subsection 1(18) of Ontario Regulation 437/97. Members are expected to always maintain appropriate professional boundaries with students. The Member did the opposite by assaulting five students. Such conduct demonstrates significant moral failing and a concerning lack of professional judgment by the Member.

13The Member engaged in conduct unbecoming a member, contrary to subsection 1(19) of Ontario Regulation 437/97. Members of the teaching profession who assault students tarnish the reputation of the teaching profession and breach the trust that parents, students and the public place in teachers.

F. Penalty Decision

14The parties entered into a Joint Submission on Penalty (Exhibit 4), which was presented to the Panel. In an oral decision rendered on October 6, 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;

2. The Registrar is directed to suspend the Certificate of Qualification and Registration of the Member for a period of ten (10) months commencing on the 15th calendar day following the date of the Decision and Order of the Discipline Committee in this matter, and the fact of the suspension is to be recorded on the Register; and

3. The Registrar is directed to impose the following terms, conditions or limitations on the Member's Certificate of Qualification and Registration, the fact of such terms, conditions or limitations to be recorded on the Register until such time as they are fulfilled:

(a) prior to commencing or returning to a teaching position or to any position for which a Certificate of Qualification and Registration is required, the Member shall enrol in and successfully complete at his own expense, a course of instruction on professional boundaries and appropriate interactions with young people. The course shall be pre-approved by the Registrar and be subject to the following conditions:

(i) the Member will provide to a course practitioner approved by the Registrar a copy of the Agreed Statement of Facts and Guilty Plea and Joint Submission on Penalty documents made exhibits at the hearing of this matter, and the Decision, Reasons for Decision and Order of the Discipline Committee; and

(ii) upon review of the documents noted at paragraph (i) above, the course practitioner will provide to the Registrar, for approval, a syllabus for the proposed course which specifically addresses the Discipline Committee's concerns regarding the Member's professional misconduct. The syllabus proposed by the course practitioner shall also specify the length of the course to be undertaken by the Member, and the assignments to be completed by the Member; and

(b) within 30 days of his completion of the course outlined in (a) above, the Member shall provide to the Registrar a written certificate from the course practitioner stating that the Member has successfully completed the course and reporting on the progress of the Member with respect to addressing the outlined goals of the course.

G. Reasons for Penalty Decision

15The Panel was concerned that the jointly proposed penalty (and, in particular, the 10-month suspension) was too lenient given the circumstances of this case, but ultimately accepted it because it did not find that the high threshold for rejecting a joint submission has been met. These concerns were not raised during the hearing because the Panel ultimately decided to accept the jointly proposed penalty. If the Panel was inclined to reject the jointly proposed penalty, it would have first provided the parties with an opportunity to make additional submissions with respect to the Panel’s concerns with the duration of the proposed suspension. 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. In R. v. Anthony-Cook, 2016 SCC 43, [2016] 2 S.C.R. 204, at para. 34, the Supreme Court of Canada explained the public interest test in the following manner:

…[A] joint submission should not be rejected lightly […]. Rejection denotes a submission so unhinged from the circumstances of the offence and the offender that its acceptance would lead reasonable and informed persons, aware of all the relevant circumstances, including the importance of promoting certainty in resolution discussions, to believe that the proper functioning of the justice system had broken down. This is an undeniably high threshold — and for good reason […].

16In Bradley v. Ontario College of Teachers, 2021 ONSC 2303, the Divisional Court held that the public interest test referred to in Anthony-Cook applies to disciplinary bodies.

17The Panel carefully weighed the aggravating and mitigating circumstances of this case, as these factors informed the Panel’s decision with respect to penalty, and its ultimate decision not to reject the parties’ joint submission. There are several aggravating factors in the Member’s case. First, the Member engaged in similar misconduct after having previously been disciplined by the College for violating professional boundaries with students (see Exhibit 3). Second, the Member’s conduct was not a momentary lapse of judgment. The Member assaulted five students, for which he was found guilty in his prior criminal proceeding. Third, the Member exploited his position of power over the students by violating their bodily integrity while they were alone with him in the changeroom. Finally, the Member’s conduct caused significant emotional harm to the students.

18In terms of mitigating factors, the Member admitted his misconduct, saving the time and expense of a contested hearing. Moreover, the Member’s conduct, while certainly inappropriate and disturbing to the students and their families, falls at the lower end of the spectrum of physical abuse. The Member lifted students up and tickled their feet, among other things, without their consent. His actions, however, did not involve aggression or violence, they did not cause physical injury, and they were not sexual in nature, which is the type of conduct that might fall at the higher end of the physical abuse spectrum. After weighing these factors, the Panel accepts that the penalty proposed would not bring the administration of the discipline process into disrepute.

19The Panel finds that the Member’s inappropriate conduct with students warrants a reprimand. Members are expected to always maintain professional boundaries and interact appropriately with students. The Member failed to do so by assaulting five students and asking a student to push a dime across the floor with his nose. Such conduct is unacceptable. 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.

20The Panel finds that, although the length of the suspension proposed in the joint submission is shorter than what the Panel would have ordered in a contested hearing, a 10-month suspension is not so unreasonable that accepting it would bring the administration of the discipline process into disrepute. The Panel considered the following cases presented by College Counsel, which establish a range of suspensions between six and ten months for conduct of a similar nature: Ontario College of Teachers v. Baker, 2021 ONOCT 59, Ontario College of Teachers v. Boyce, 2021 ONOCT 112, Ontario College of Teachers v. Hundal, 2021 ONOCT 39, and Ontario College of Teachers v. MacAdam, 2019 ONOCT 3. While the cases are factually distinct from this case, the misconduct represented in those cases is of a similar underlying nature and the cases confirm that a 10-month suspension is justified. The suspension 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 misconduct the Member exhibited is unacceptable. In accordance with the parties’ joint submission, the Member’s suspension will begin on October 21, 2022, which is 15 days after the Panel’s Decision and Order.

21The Panel finds that the course of instruction on professional boundaries and appropriate interactions with young people will assist in the rehabilitation of the Member. The coursework will remind the Member of his obligations as a member of the teaching profession and will help him to make better decisions in any future interactions with students. The coursework should provide the Member with a clear understanding of how to maintain appropriate boundaries with students and it must be completed before the Member commences or returns to a position that requires him to hold a Certificate of Qualification and Registration.

22The Panel is satisfied that, in the circumstances of this case, the penalty meets the principle of serving and protecting the public interest and it does not meet the high threshold for rejecting a joint submission.