DISCIPLINE COMMITTEE

OF THE ONTARIO COLLEGE OF TEACHERS

Citation: Ontario College of Teachers v Desson 2023 ONOCT 58

Date: 2023-08-18

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

Robert Desson, a member of the Ontario College of Teachers.

BETWEEN:

ONTARIO COLLEGE OF TEACHERS

– and –

ROBERT DESSON (REGISTRATION #213839)

PANEL: Linda Staudt, OCT, Chair

Marlène Marwah

Victoria Romero

HEARD: August 10, 2023

Ava Arbuck, for the Ontario College of Teachers

Austen Metcalfe, for Robert Desson

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.

1This proceeding was heard electronically before a panel of the Discipline Committee (the “Panel”) of the Ontario College of Teachers (the “College”) on August 10, 2023, in accordance with rule 8.01 of the Rules of Procedure of the Discipline Committee and of the Fitness to Practise Committee.

2Robert Desson (the “Member”) did not attend the hearing but had legal representation. The Member attended immediately after the hearing to receive his oral reprimand. 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.

4Additionally, a publication ban was ordered pursuant to subsection 32.1(4) of the Act at the request of Counsel for the College for Student 1, Student 2 and Student 3 who were allegedly sexually abused. Accordingly, no person shall publish the identity of, or any information that could disclose the identity of Student 1, Student 2 and Student 3.

B. THE ALLEGATIONS

5The allegations against the Member in the Notice of Hearing dated July 20, 2022 (Exhibit 1) are as follows:

IT IS ALLEGED that Robert Desson is guilty of professional misconduct as defined in the Act in that:

(a) he abused a student or students physically, sexually, verbally, psychologically or emotionally, contrary to Ontario Regulation 437/97, subsection 1(7) and/or engaged in sexual abuse of a student or students as defined in section 1 of the Act;¹

(b) he abused a student or students physically, contrary to Ontario Regulation 437/97, subsection 1(7.1);²

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

(d) 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;

(e) he failed to comply with the Act or the regulations or the by-laws, specifically section 26 of the by-laws, contrary to Ontario Regulation 437/97, subsection 1(14);

(f) 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);

(g) 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);

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

C. STATEMENT OF UNCONTESTED FACTS

6College Counsel presented the Panel with the parties’ Statement of Uncontested Facts and Plea of No Contest (Exhibit 2), which provides the following:

1. Robert Desson is a member of the Ontario College of Teachers in the Inactive/Non-Practising status. Attached hereto and marked as Exhibit “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 District School Board of Niagara (the “Board”) as a teacher and/or coach at [XXX]School (“[XXX]”) in Welland, Ontario or [XXX]School (“[XXX]”) in[XXX], Ontario.

Student 1

3. Student 1 was a female student at[XXX]. Student 1 graduated from [XXX]in June [XXX].

4. From approximately September [XXX] to June[XXX], the Member engaged in a personal relationship with Student 1 which included hugging Student 1.

5. During a [XXX]school seminar, when Student 1 was in Grade[XXX], the Member squeezed Student 1’s shoulder and rubbed her thigh and stated, “You know you like it, you know you do.” This made Student 1 feel very uncomfortable.

6. The Member began sending Student 1 emails of a personal nature in June [XXX] while she was still a student at[XXX]. The Member continued the electronic communication with Student 1 after her graduation until October [XXX]. In his messages to Student 1, the Member repeatedly suggested that Student 1 should continue to communicate with him and see him in person and expressed concern when she failed to do so. Attached hereto and marked as Exhibit “B” is a copy of a selection of email communications between the Member and Student 1.

7. In September[XXX], when Student 1 began her degree at [XXX] University, the Member attended a barbeque with Student 1. The Member left the barbeque with Student 1. The Member held Student 1’s hand as they walked along through a parking lot. When Student 1 tried to pull her hand away from the Member, the Member told Student 1, “Don’t pull you’re your hand away” and tried to bite Student 1’s ear. This made Student 1 very uncomfortable.

8. In October[XXX], Student 1’s mother reported the Member’s relationship with Student 1 to the Principal of[XXX]. An investigation was conducted into the Member’s behaviour with Student 1. Subsequently, the Member was given a written letter of warning by the Principal of [XXX]in December 2004 and was instructed to take a boundaries course. The Member completed the boundaries course regarding maintaining appropriate boundaries with students in February 2005. Attached hereto and marked as Exhibit “C” is a copy of the written letter of warning dated December 14, 2004 and a copy of the letter of completion of the boundaries course dated February 25, 2005.

Student 2

9. Student 2 was a female student at[XXX]. Student 2 graduated from [XXX]in June [XXX].

10. From approximately September [XXX] to June [XXX], the Member engaged in a personal relationship with Student 2.

11. The Member coached the [XXX] team at [XXX]and Student 2 was a member of the team. During stretching sessions, the Member touched Student 2’s body and manipulated her hips and legs which made Student 2 feel uncomfortable.

12. During Student 2’s Grade [XXX] year, Student 2 was listening to music in the presence of the Member and Student 2 asked the Member if he would like to listen to music as well and offered him an earphone. The Member replied, “we should probably wait until after grad for that.”

13. The Principal of [XXX]asked Student 2 to get a year end gift for the Member. Student 2 got a silver engraved whistle for the Member on behalf of the graduating class. At the year-end school banquet/graduation ceremony, Student 2 gave the gift to the Member. While Student 2 was waiting to be called to receive her diploma, the Member came up behind her and rubbed her shoulders and thanked her for the gift and stated, “I have to repay you, with dinner.” This made Student 2 feel extremely uncomfortable.

14. The personal relationship and electronic communications with Student 2 continued after Student 2’s graduation into the summer of [XXX] and into[XXX].

15. During the summer of [XXX] and continuing into[XXX], the Member sent inappropriate electronic communications to Student 2 that were sexual in nature, including sending her photographs of his naked back.

16. While Student 2 attended [XXX]University, the Member asked her whether her roommate would ever leave because he wanted to “come up” and visit her.

17. Student 2 stopped communicating with the Member after her first year of university because she felt uncomfortable.

18. In August 2018, Student 2 initiated communication with the Member again. Student 2 had just ended a long-term relationship and was feeling bored.

19. From approximately August 2018 to October 2018, the Member engaged in explicit sexual communications with Student 2. Attached hereto and marked as Exhibit “D” is a copy of the text messages between the Member and Student 2.

20. Student 2 began to feel uncomfortable again and ended all communication with the Member.

Student 3

21. Student 3 was a female student at [XXX]. Student 3 graduated from [XXX]in June 2014. The Member was also Student 3’s[XXX] and [XXX]coach.

22. From approximately September 2012 to June 2014, the Member engaged in a personal relationship with Student 3 while he was also engaged in a personal relationship and electronic communication with Student 2.

23. While Student 3 was stretching before attending [XXX]games, [XXX]events, and practices, the Member placed his hands on Student 3’s body. The Member helped Student 3 stretch by putting her leg up while pushing her leg into her body and leaning his whole body against her leg. This made Student 3 feel extremely uncomfortable.

24. During a [XXX] when Student 3 was in Grade [XXX], the Member slapped Student 3 on her lower back and/or buttocks to wake her up because she had fallen asleep.

25. The Member invited Student 3 to private training sessions with him. She declined to attend.

26. The Member asked Student 3 questions of a personal nature which included questions about her dating life and sex life.

27. From in or about the summer of 2014 to the fall of 2014, after Student 3’s graduation, the Member began texting Student 3 and invited her to go shopping and to go out for sushi with him. She declined the invitations and said she had to work.

Student 4

28. During the 2014-2015 academic year, Student 4 was a female student at[XXX]. Student 4 graduated [XXX]in June 2015. Student 4 returned as a student to [XXX]during the 2015-2016 academic year.

29. From approximately September 2014 to June 2016, the Member engaged in a personal relationship with Student 4. Student 4 felt that the Member was her teacher, her coach as well as her mentor.

30. The Member took a personal interest into Student 4 in that he:

(a) spent time alone with Student 4;

(b) asked Student 4 to try on the school’s “spirit wear” and asked her to change in the bathroom in his office. He also asked her to show him the track pants and sweaters.

31. The Member and Student 4 would regularly spend time alone in the lower gym area doing inventory and during those occasions, he asked Student 4 questions of a personal nature including questions about her dating life.

32. The Member responded to a Twitter post that Student 4 made in regard to pierced nipples. The Member wrote, “I can see how that’s attractive.”

33. In the fall 2016, when Student 4 was no longer a student at[XXX], Student 4 stayed in touch with the Member and communicated with him regularly. During Student 4’s first year of university, she texted the Member that she was going to have [XXX]and was celebrating her last day of [XXX] at a water park. The Member responded to Student 4 and wrote, “What are you wearing? Are you wearing a bikini? Can you send me pictures of what you’re wearing?.” The Member also wrote, “Show me your picture – 1 piece? 2 piece?.” Student 4 was upset with the Member after reading those messages because she had been very close with the Member and told him personal things about her relationships and family. Student 4 felt betrayed by the Member.

34. The Board conducted an investigation regarding the information that was brought forth by the students. The Member resigned from the Board effective August 6, 2020.

Current Status

35. The Member is not teaching in any capacity and has no intention of returning to teaching.

PLEA OF NO CONTEST

36. By this document, the Member agrees that the Discipline Committee can accept as correct the facts and the exhibits referred to the paragraphs above (the “Uncontested Facts”).

37. The Member hereby acknowledges that the Uncontested Facts constitute conduct which is professional misconduct and pleads no contest to the allegations of professional misconduct against him being more particularly breaches of Ontario Regulation 437/97 subsections 1(7- pre May 2008), 1(7.2), 1(7.3), 1(14), 1(15), 1(18), and 1(19). The Member further acknowledges that the Uncontested Facts constitute sexual abuse as defined in Section 1 of the Act.

38. 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 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 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 counsel for the College and himself with respect to the penalty proposed does not bind the Discipline Committee;

(g) he understands and acknowledges that he is executing this Agreement voluntarily, unequivocally, and with the advice of legal counsel.

39. The Member provides this plea of no contest pursuant to Rule 3.02 of the Rules of Procedure of the Discipline Committee under protection of the Evidence Act, R.S.O. 1990, chapter E. 23, for the purpose of this proceeding under the Ontario College of Teachers Act 1996, chapter 12, 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.

D. DECISION

7At the outset of the hearing, counsel for the College requested that the allegation of professional misconduct outlined in paragraph (b) of the Notice of Hearing, namely that the Member contravened subsection 1(7.1) of Ontario Regulation 437/97, be withdrawn. The Panel granted the request.

8Having considered the Statement of Uncontested Facts and Plea of No Contest and the submissions of the parties, the Panel rendered an oral decision on August 10, 2023, finding that the Member engaged in acts of professional misconduct as alleged, contrary to Ontario Regulation 437/97, subsections 1(7) [pre May 2008], 1(7.2), 1(7.3), 1(14), 1(15), 1(18), and 1(19). The Member also engaged in sexual abuse of a student of a nature defined in section 1 of the Act.

E. REASONS FOR DECISION

9The Member did not contest the facts and exhibits referred to in paragraphs 1 to 35 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 the Uncontested Facts constitute professional misconduct under the heads of misconduct set out above. The Uncontested Facts demonstrate that the Member engaged in inappropriate communication of a sexual nature with students and had inappropriate personal relationships with multiple students. . The Member failed to maintain professional boundaries with students by overtly violating the bodily integrity of multiple female students.

10The Uncontested facts demonstrate that the Member abused a student physically, sexually, verbally, psychologically or emotionally, contrary to subsection 1(7) [pre-May 2008 amendments] of Ontario Regulation 437/97, and that he engaged in sexual abuse of a student as defined in section 1 of the Act. Given the use of the disjunctive “or” in the drafting of this subsection, any one of the above forms of abuse is sufficient to ground a finding under subsection 1(7) [pre-May 2008 amendments]. The Uncontested Facts demonstrate that the Member sexually and emotionally abused Student 1. The definition of sexual abuse under section 1 of the Act includes any behaviour or remark of a sexual nature by a member towards a student. The Member engaged in a personal relationship with Student 1 and crossed professional boundaries on several occasions. In particular, the Member hugged Student 1 and sent her personal emails in which he called her pet names, suggested that they meet outside of school, and expressing concern when Student 1 did not communicate with him. On another occasion, the Member squeezed Student 1’s shoulders and rubbed her thigh, while making a sexually suggestive comment by stating, “You know you like it, you know you do”. The Member’s conduct made Student 1 feel very uncomfortable. As such, the Panel finds that the Member’s conduct constitutes emotional and sexual abuse.

11The Member abused a student or students psychologically or emotionally contrary to Ontario Regulation 437/97, subsection 1(7.2). In particular, the Member engaged in a personal relationship with Student 2 and Student 3. After Student 2 delivered the Member a gift on behalf of the graduating class, the Member thanked Student 2 for the gift, and came up behind her, rubbed her shoulders and stated “I have to repay you, with dinner”, which made Student 2 feel extremely uncomfortable. Furthermore, while acting as coach to the school’s sports teams, the Member touched Student 2 and Student 3’s bodies during stretching sessions. The Member touched Student 2’s body by manipulating her hips and legs. The Member touched Student 3’s body by putting her leg up while pushing her leg into her body and leaning his whole body against her leg. This conduct can have detrimental emotional and psychological effects on young female students as this behaviour made both students extremely uncomfortable. As a teacher and a coach, the Member is in a position of trust and authority and is expected to ensure a safe space for students by maintaining professional boundaries. This is always the responsibility of the teacher, and not the students. The Member took advantage of his position as a coach and touched Student 2 and Student 3 inappropriately on more than one occasion, thus, violating their bodily integrity and sense of security. Taking all of this into account, the Panel finds that the Member’s conduct constitutes psychological and emotional abuse.

12The Member 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. The Member inappropriately touched Student 2 and Student 3’s bodies on multiple occasions. On one occasion, Student 2 asked the Member if he would like to listen to music and offered him an earphone, the Member made a sexually suggestive remark and replied “we should probably wait until after grad for that”, implying intimate conduct between himself and Student 2. Additionally, during a [XXX], the Member slapped Student 3 on her lower back and/or buttocks. The Member further engaged in inappropriate communication of a sexual nature with Student 3 in asking questions related to her dating life and sex life. Given the power imbalance between students and teachers the Member’s conduct was abhorrent. The Panel finds that the Member’s behaviour towards Student 2 and Student 3 included behaviour or remarks of a sexual nature and therefore constitutes sexual abuse of a student.

13The Panel finds that the Member failed to comply with the Act or the regulations or the by-laws, specifically section 26 of the by-laws, contrary to Ontario Regulation 437/97, subsection 1(14). Members of the teaching profession must always uphold the standards of practice and the ethical standards. The Member inappropriately leveraged his position as a teacher and a coach to develop and pursue personal relationships with Student 1, Student 2, Student 3 and Student 4. In particular, the Member breached the ethical standards of “Care,” “Respect,” “Trust” and “Integrity.” The standard of “Care” requires members to express their commitment to students’ well being through positive influence and empathy. The standard of “Respect” requires members to honour human dignity, emotional wellness and cognitive development. The Member failed to demonstrate the ethical standards of “Care” and “Respect” by engaging in inappropriate touching of the students, making sexual remarks and asking questions of a personal nature, including about their dating life and sex life. In doing so, the Member disregarded the students’ emotional wellness and well being. The Member failed to maintain the ethical standard of “Trust”, as he breached the trust of students by engaging in personal relationships with Student 1, Student 2, Student 3 and Student 4, which was done in the Member’s personal interest and not in the best interest of the students. Furthermore, the standard of “Integrity” requires members to conduct themselves with honesty, reliability, and moral action. The member breached this ethical standard by disregarding warnings from the Board, continuing an egregious pattern of behaviour and fostering personal relationships with multiple students.

14The Member has failed to comply with the Education Act or the regulations made under that Act 1(15), by failing to comply with section 264(1) of the Education Act, which sets out the duties of a teacher. Paragraph 264(1)(c) provides that it is the duty of a teacher to “inculcate by precept and example […] the highest regard for […] all […] virtues.” Simply put, teachers are expected to exemplify moral virtues and serve as positive role models, including when they are outside of the classroom. By repeatedly failing to maintain professional boundaries with female students and making them uncomfortable, the Member demonstrated morally repugnant behaviour.

15The Panel finds that the Member committed acts that, having regard to all the circumstances, would reasonably be regarded by members as disgraceful, dishonourable and unprofessional, contrary to Ontario Regulation 437/97, subsection 1(18). As adults who hold a privileged position of trust and authority with students and the community, teachers hold a moral and professional duty to respect students’ dignity and protect their well-being. The Member’s pattern of establishing individual and personal relationships with students while at school as their teacher and their coach and making remarks of a sexual nature was disgraceful, dishonourable and unprofessional. The Panel finds that the Member’s behaviour had some elements of a grooming – building a close relationship with a student in order to lay the groundwork for a future sexual relationship. The Member sent his students personal emails, engaged them in discussions of a sexual and personal nature, invited them to meet him privately, and touched them inappropriately. By engaging in such grooming behaviour with Student 1 and Student 2 the Member demonstrated abhorrent and morally repugnant conduct for a teacher. The Panel therefore finds the Member’s conduct was disgraceful, dishonourable and unprofessional.

16The Panel finds that the Member engaged in conduct unbecoming a member, contrary to Ontario Regulation 437/97, subsection 1(19). Students, parents, guardians and the public expect that members of the teaching profession will exercise good judgment when caring for their children and take proper action to protect and respect them. The Member’s failure to protect and respect the bodily integrity and boundaries of young female students undermines the reputation of the teaching profession and breaches the trust that members of the public have in teachers.

F. PENALTY Decision

17The parties entered into a Joint Submission on Penalty (Exhibit 3), which was presented to the Panel. In an oral decision rendered on August 10, 2023, the Panel accepted the Joint Submission on Penalty and made the following order:

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

2. 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 (the “Register”).

G. REASONS FOR PENALTY DECISION

18The Member’s professional misconduct consisted of or included the sexual abuse of multiple students, 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.

19The Panel recognizes that it may also order costs or a fine in accordance with subsection 30(5) of the Act but notes that the parties are jointly asking it to confine its order to the mandatory penalties. The Panel 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.

Date: August 18, 2023

Linda Staudt, OCT Chair, Discipline Panel

Marlène Marwah Member, Discipline Panel

Victoria Romero Member, Discipline Panel

Footnotes

1. 1Prior to the May 5, 2008 amendments to Ontario Regulation 437/97, subsection 1(7) grouped together physical, sexual, verbal, psychological or emotional abuse. Since the May 2008 amendments, these forms of abuse have been broken into separate subsections (i.e., for each distinct form of abuse).
2. 2Allegation withdrawn.