Ontario College of Teachers v. Nesbitt, 2023 ONOCT 73

DISCIPLINE COMMITTEE OF THE ONTARIO COLLEGE OF TEACHERS

Citation: Ontario College of Teachers v Nesbitt 2023 ONOCT 73

Date: 2023-10-28

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 Weston Thomas Matthew Nesbitt, a member of the Ontario College of Teachers.

BETWEEN:

ONTARIO COLLEGE OF TEACHERS

– and –

WESTON THOMAS MATTHEW NESBITT (REGISTRATION #485955)

PANEL: Rachelle Coleman, Chair Sandra Pizzuti, OCT Victoria Romero

HEARD: October 13, 2023

Dominic Bell, for the Ontario College of Teachers No one appearing for Weston Thomas Matthew Nesbitt Julie Maciura, Independent Legal Counsel

PUBLICATION BAN: Pursuant to subsection 32.1(3) of the Ontario College of Teachers Act, 1996, no person shall publish the identity of, or any information that could disclose the identity of any person who is under 18 years old and is a witness in a hearing or is the subject of evidence in a hearing.

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

1This proceeding was heard electronically before a panel of the Discipline Committee (the “Panel”) of the Ontario College of Teachers (the “College”) on October 13, 2023, in accordance with rule 8.01 of the Rules of Procedure of the Discipline Committee and of the Fitness to Practise Committee.

2Weston Thomas Mathew Nesbitt (the “Member”) did not attend the hearing and did not have legal representation. The Panel accepts that the Member was duly served with all appropriate documents, as per the Affidavit of Kelly Reeves, signed and commissioned on September 28, 2023 (Exhibit 2).¹ The Panel was advised at the outset of the hearing that the parties had entered into an agreement with respect to the hearing.

A. PUBLICATION ban

3The Panel ordered a publication ban pursuant to subsection 32.1(3) of the Ontario College of Teachers Act, 1996 (the “Act”), which makes such an order mandatory. Accordingly, no person shall publish the identity of, or any information that could disclose the identity of, any person who is under 18 years old and is a witness in a hearing or is the subject of evidence in a hearing.

4The Panel also received a certified copy of the transcript of the Proceedings at Guilty Plea and Reasons for Sentence from the Member’s criminal proceeding before the Honourable Justice F.C. O’Donnell dated January 3, 2023 (Exhibit 3 at Tab C). In these proceedings before the Ontario Court of Justice, an order restricting publication was made pursuant to section 486.4 of the Criminal Code of Canada. The Panel is required to uphold this publication ban. Accordingly, any information that could identify the victim or a witness involved in this matter shall not be published in any document or broadcast or transmitted in any way.

B. THE ALLEGATIONS

5The allegations against the Member in the Notice of Hearing dated May 30, 2023 (Exhibit 1) are as follows:

IT IS ALLEGED that Weston Thomas Matthew Nesbitt is guilty of professional misconduct as defined in the Act in that:

(a) he failed to maintain the standards of the profession, contrary to Ontario Regulation 437/97, subsection 1(5);

(b) he 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);

(c) 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);

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

(e) he engaged in a prohibited act involving child pornography as defined in section 1 of the Act.

C. AGREED STATEMENT OF FACTS

6College Counsel presented the Panel with the parties’ Agreed Statement of Facts and Guilty Plea (Exhibit 3), which provides the following:

1. Weston Thomas Matthew Nesbitt is a member of the Ontario College of Teachers.

2. The Member obtained a Certificate of Qualification (Provisional) on June 2, 2005, and a Certificate of Qualification and Registration on June 13, 2006. Attached hereto and marked as Appendix “A” is a copy of the Ontario College of Teachers Registered Member Information with respect to the Member.

3. At all material times, the Member was employed by the District School Board of Niagara as a teacher at Forestview Public School in Niagara Falls, Ontario.

4. On or about October 22, 2021, the Member had an online conversation with a couple (the “Couple”), searching for a sexual encounter. The Member told the Couple that he wanted to bring a 16-year-old person (the “Young Person”) with him so that the male in the Couple could have sex with her, take her virginity and impregnate her. The Member proceeded to tell the Couple that the Young Person is a nudist. The Member sent a series of photographs of a nude Caucasian female whom the police in their investigation described as “age difficult”.

Criminal Proceedings/Conviction

5. On October 23, 2022, the Niagara Regional Police charged the Member with:

(a) On or about the 22nd day of October in the year 2021 at the City of Niagara Falls in the Central West Region did, without lawful excuse, make child pornography in the form of digital images, contrary to Section 163.1, subsection (2) of the Criminal Code of Canada;

(b) On or about the 22nd day of October in the year 2021 at the City of Niagara Falls in the Central West Region did, without lawful excuse, possess child pornography in the form of written words, contrary to Section 163.1, subsection (4) of the Criminal Code of Canada; and

(c) On or about the 22nd day of October in the year 2021 at the City of Niagara Falls in the Central West Region did, without lawful excuse, make available child pornography in the form of digital images, contrary to Section 163.1, subsection (3) of the Criminal Code of Canada.

6. On January 3, 2023, the Member pleaded guilty to and was convicted of one count of possessing child pornography, in the form of written words. The remainder of the charges were withdrawn at the request of the Crown.

7. The Member was sentenced to a six-month conditional sentence, followed by a period of probation of three years. The Member was also made subject to a number of ancillary orders. The following conditions are relevant to the Member’s eligibility to teach for a period of ten years. The Member is:

(a) Prohibited from attending a public park or public swimming area where persons under the age of sixteen years are present or can reasonably be expected to be present, or a daycare centre, school ground, playground or community centre except in the direct and continuous company of a responsible and informed adult at least 21 years old.

(b) Prohibited from seeking, obtaining or continuing any employment, whether or not the employment is remunerated, or becoming or being a volunteer in a capacity that involves being in a position of trust or authority towards persons under the age of sixteen years.

(c) Prohibited from using a computer within the meaning of Subsection 342.1(2) of the Criminal Code of Canada for the purpose of communicating with a person under the age of 16 years except with the permission of the parent or guardian of that person.

8. The following conditions are relevant to the Member’s eligibility to teach for a period of three years during his probation:

(a) Do not be in the company of or communicate, directly or indirectly, by any physical, electronic or other means, with males or females under the age of 18 years, except with informed consent and while under the supervision of that person’s parent/guardian or another informed adult over 21 years of age, or except with immediate family members with parental consent and in advance by the probation officer.

9. The Member did not appeal his conviction or sentence and the time for an appeal has expired.

10. Attached hereto and marked as Appendix “B” is a certified copy of the Court Information sworn on October 24, 2021, appearances/adjournments, and disposition in the criminal proceeding.

11. Attached hereto and marked as Appendix “C” is a certified copy of the transcript of the Proceedings at Guilty Plea and Reasons for Sentence, remotely before the Honourable Justice F.C. O’Donnell on January 3, 2023, for a St. Catharines, Ontario Proceeding.

12. Attached hereto and marked as Appendix “D” is a certified copy of the Adult Conditional Sentence Order, dated January 3, 2023.

13. Attached hereto and marked as Appendix “E” is a certified copy of the Adult Probation Order, dated January 3, 2023.

14. Attached hereto and marked as Appendix “F” is a certified copy of the Prohibition Order, dated January 3, 2023.

15. Attached hereto and marked as Appendix “G” is a certified copy of the Forfeiture Order, dated January 3, 2023.

GUILTY PLEA

16. By this document, the Member admits the truth of the facts and appendices referred to in paragraphs 1-15 above (the “Admitted Facts”).

17. The Member hereby acknowledges that the conduct set out at paragraphs 4-8 and 10-15 of the Admitted Facts constitutes professional misconduct and pleads guilty to the allegations of professional misconduct against him, being more particularly breaches of Ontario Regulation 437/97, subsections 1(5), 1(16), 1(18) and 1(19). The Member also acknowledges that that he engaged in a prohibited act involving child pornography as defined in section 1 of the Ontario College of Teachers Act, 1996.

18. 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; and

(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.

19. 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 13, 2023, finding that the Member engaged in acts of professional misconduct as alleged, contrary to Ontario Regulation 437/97, subsections 1(5), 1(16), 1(18) and 1(19). The Member also engaged in a prohibited act involving child pornography as defined in section 1 of the Act.

E. REASONS FOR DECISION

8The Member admitted the truth of the facts and exhibits referred to in paragraphs 4-8 and 10-15 of the Agreed Statement of Facts and Guilty Plea and admitted the allegations of professional misconduct against him. He acknowledged and the Panel accepts that the Admitted Facts constitute professional misconduct under the heads of misconduct set out above. The Admitted Facts demonstrate that the Member engaged in abhorrent conduct by sending a series of photographs of a nude Caucasian female whom the police described as “age difficult” for the purpose of searching for a sexual encounter with the Couple. The Member plead guilty and was ultimately convicted in the Ontario Court of Justice of one count of possessing child pornography, in the form of written words.

9The Member engaged in a prohibited act of child pornography as defined in section 1 of the Act. The Admitted Facts indicate that the Member was convicted of possession of child pornography in the form of written words contrary to subsection 163.1(4) of the Criminal Code, which therefore gives rise to a finding under section 1 of the Act. The Panel further accepts the Member’s admission that he engaged in such an act, as defined in section 1 of the Act.

10The Admitted Facts demonstrate that the Member failed to maintain the standards of the profession, contrary to Ontario Regulation 437/97, subsection 1(5). The Panel accepts College Counsel’s submission that the nature of the misconduct committed by the Member is so notorious and offside of what is acceptable that expert evidence is not required to prove that the standards were breached.² The Member plead guilty to the allegations against him in this proceeding and the Admitted Facts demonstrate that he engaged in online communications, namely searching for a sexual encounter for the purpose of taking the Young Person’s virginity and impregnating her. Such conduct is an egregious breach of the standards of the profession, which require teachers to be dedicated in their care and commitment to all students. As such, the Panel finds that the Member failed to maintain the standards of the profession.

11The Member contravened a law 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). The Admitted Facts demonstrate that the Member contravened subsection 163.1(4) of the Criminal Code, possession of child pornography in the form of written words. Members of the teaching profession hold a unique position of authority and are entrusted with the safety and well-being of children. Members who engage in criminal activities that exploit and objectify the Young Person, as did the Member, are not suited to the teaching profession. The Member is subject to a number of ancillary orders imposed by the Ontario Court of Justice, as outlined in the Agreed Statement of Facts and Guilty Plea (Exhibit 3, paragraphs 5-8) that reflect the fact that the Member is not suitable to hold a teaching certificate. The Panel therefore makes a finding under this head of misconduct.

12The Member 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). The Member’s conduct, namely sending a series of photographs of a nude Caucasian female whom the police described as “age difficult” for the purpose of arranging a sexual encounter, was abhorrent and demonstrated significant moral, ethical and professional failings. The Member’s conduct demonstrated a lack of integrity, abuse of power and disregard for the safety and care of the Young Person. The Panel finds that the Member’s conduct would therefore be reasonably regarded as disgraceful, dishonourable and unprofessional.

13Similarly, the Member’s egregious conduct is unbecoming a member, contrary to subsection 1(19) of the Ontario Regulation 437/97. Public confidence in teachers, and the teaching profession as a whole is eroded when members possess child pornography. It is similarly eroded when members potentially endanger young people by communicating online for the purpose of arranging sexual encounters for a young person, as the Member did in this case.

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 13, 2023, the Panel accepted the Joint Submission on Penalty and made the following order:

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

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

G. REASONS FOR PENALTY DECISION

15The Member’s professional misconduct included a prohibited act involving child pornography, 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.

16The 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 ones. The Panel finds it reasonable not to make these additional orders in light of the Member’s guilty plea and Joint Submission on Penalty, particularly given the high threshold that must be met before rejecting a joint submission on penalty.

17The Panel denounces the Member’s misconduct in the strongest terms.

Footnotes

1. 1The Panel recognizes that the date indicated at paragraph 4 of Exhibit 2 (May 26, 2023) is an error. The correct date on which the Member downloaded or accessed the document is September 26, 2023. The error in date does not impact the outcome of the case, as the Member accessed the served documents prior to the hearing date.
2. 2Novick v Ontario College of Teachers, 2016 ONSC 508 at para 71.