DISCIPLINE COMMITTEE

OF THE ONTARIO COLLEGE OF TEACHERS

Citation: Ontario College of Teachers v Boyle 2023 ONOCT 75

Date: 2023-10-06

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

Brian Joseph Boyle, a member of the Ontario College of Teachers.

BETWEEN:

ONTARIO COLLEGE OF TEACHERS

– and –

BRIAN JOSEPH BOYLE (REGISTRATION #213724)

PANEL: Kirby Chown, OCT, Chair

Lois Figg

Alain Martel, OCT

HEARD: September 19, 2023

Zirka Jakibchuk, for the Ontario College of Teachers

No one appearing for Brian Joseph Boyle

Julie Maciura, Independent Legal Counsel

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

By order of Justice J. Fiorucci 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 September 19, 2023, in accordance with rule 8.01 of the Rules of Procedure of the Discipline Committee and of the Fitness to Practise Committee.

2Brian Joseph Boyle (the “Member”) did not attend the hearing and did not have legal representation. The Panel was advised at the outset of the hearing that the parties had entered into an agreement with respect to the hearing.

A. PUBLICATION ban

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

4The Panel also received a certified copy of the court information from the Member’s criminal proceeding before Justice J. Fiorucci before the Ontario Court of Justice dated December 6, 2021 (Exhibit 2 at Appendix B). In these proceedings, 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 and so does uphold it. 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 24, 2023 (Exhibit 1) are as follows:

IT IS ALLEGED that the Brian Joseph Boyle 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 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;

(c) he abused a student or students, verbally, contrary to Ontario Regulation 437/97, subsection 1(7);

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

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

(f) 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;

(g) 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);

(h) he contravened a law, the contravention of which has caused or may cause a student who is under the member’s professional supervision to be put at or to remain at risk, contrary to Ontario Regulation 437/97, subsection 1(18);

(i) he engaged in conduct unbecoming a member, contrary to Ontario Regulations 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. Brian Joseph Boyle is a member of the Ontario College of Teachers. He obtained a Temporary Letter of Standing on January 14, 1994. Subsequenty, [sic] he obtained an Interim Certificate of Qualification and Registration on May 20, 1997 and a Certificate of Qualification and Registration on May 30, 2001. His status was changed to “Inactive/Non-Practising” on May 6, 2022.

2. 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 Hamilton-Wentworth Catholic District School Board (the “Board”) as a teacher at the [XXX] School (the “School”) in Hamilton, Ontario.

Student 1

4. Between September 1, 2014 and November 1, 2015, Student 1 was a [XXX] year-old female student at the School. Student 1 attended Member’s [XXX] class.

5. During this time, the Member made comments to Student 1 about her being beautiful and having a beautiful body.

6. On numerous occasions, the Member tickled Student 1’s midsection as she passed him.

7. On other occasions, when Student 1 was standing in class, the Member walked behind her and brushed up against her with his groin area against Student 1’s buttocks, claiming it was an accident.

8. The Member’s conduct had a negative impact on Student 1’s emotional and psychological well-being.

Student 2

9. Between 1999 and 2003, Student 2 was a female student at the School and attended the Member’s classes.

10. At the beginning of Student 2’s [XXX] school time, the Member regularly rubbed Student 2’s arms and shoulders in the hallway and classroom.

11. The Member flirted with Student 2 and commented on her appearance regularly.

12. At the beginning of the school year in 2002, the Member gave Student 2 his phone number. They began text messaging each other on a regular basis.

13. In November 2002, when Student 2 stayed behind after class, the Member closed the room door, asked Student 2 to sit on the desk and began to rub Student 2’s legs and thighs. The Member’s hand went up her thigh stopping just before her genitals. The Member told Student 2 how much he wanted to have sex with her and could not wait until she turned 18 years old.

14. In December 2002, the Member sat beside Student 2 at a theatre, placed his coat over his and her laps, placed her hand on his penis, and had her rub him while he rubbed her vagina over her pants.

15. In January 2003, the Member engaged in sexual intercourse with Student 2. The sexual relationship continued during the school day while both the Member and Student 2 were on breaks. Sometimes, the Member drove Student 2 back to the area of the School in his personal vehicle.

16. The Member’s conduct had a negative impact on Student 2’s emotional and psychological well-being.

Student 3

17. Between June 1, 2002 and March 31, 2005, Student 3 was a female student at the School. In 2002, the Member was Student 3’s teacher.

18. The Member was playful with Student 3 and made inappropriate sexual jokes with Student 3.

19. On one occasion, when Student 3 was [XXX] years old and alone in the classroom, the Member came up behind Student 3, grabbed her by the hips and pulled her into him, pushing his body against Student 3.

20. The Member regularly chatted with Student 3 via MSN Messenger online. Their conversation included sexual content.

21. On one occasion, the Member approached Student 3 in the stairwell of the School. The Member put his arm out, stopped Student 3 from going past him and tried to kiss Student 3.

22. In the spring or summer of 2005, as requested by Student 3, the Member attended the home of Student 3’s friend and brought alcohol. When Student 3 was exiting the washroom, the Member was standing outside of the door blocking her. The Member pulled Student 3 into him by the hips, untied her bikini top which she was wearing under her t-shirt, and tried to kiss her.

23. The Member’s conduct had a negative impact on Student 3’s emotional and psychological well-being.

Student 4

24. Between 2002 and 2003, Student 4 was a female student at the School. The Member was Student 4’s teacher for Grade [XXX] [XXX].

25. When Student 4 was [XXX] years old, the Member was flirty with Student 4. The Member engaged in electronic communication with Student 4 and talked to her about anal sex and how his wife would not let him do that.

26. On one occasion, the Member gave Student 4 a ride home. The Member pulled over into a parking lot, kissed Student 4, rubbed her breasts, and touched her vaginal area over her clothing.

27. On one occasion, the Member put movies on in class and sat beside Student 4 while the lights were off. During these movies, the Member rubbed Student 4’s back and arms and another student saw this happening.

28. On one occasion, Student 4 saw the Member and his friends on a patio at a bar. The Member and his friends called Student 4 and her friend into the bar. Student 4 and her friend used a fake I.D. to gain entry into the bar. The Member danced with Student 4 and grabbed her by the hips. When Student 4 was exiting the bathroom, the Member confronted Student 4, pushed her against the wall and kissed her.

29. Student 4 realized that she needed to distance herself from the Member and stopped attending the Member’s class, including the final exam. The Member still gave Student 4 a passing grade.

30. The Member’s conduct had a negative impact on Student 4’s emotional and psychological well-being.

Criminal Proceedings/Conviction

31. On November 3, 2021, the Member was arrested and charged with:

(a) On or about the 1st day of September in the year 2014 and the 1st day of November in the year 2015, at the City of Hamilton in the said region did sexually assault Student 1, contrary to the provisions of Section 271 of the Criminal Code of Canada;

(b) On or about the 1st day of September in the year 2014 and the 1st day of November in the year 2015 at the City of Hamilton in the said region did for a sexual purpose touch, directly or indirectly Student 1, a person under the age of sixteen with an object, to wit: their body, contrary to the provisions of Section 151 of the Criminal Code of Canada;

(c) On or about the 1st day of April in the year 2003 and the 30th day of June in the year 2004 at the City of Hamilton in the said region did sexually assault Student 2, contrary to the provisions of Section 271 of the Criminal Code of Canada;

(d) On or about the 1st day of April in the year 2003 and the 30th day of June in the year 2004 at the City of Hamilton in the said region being in a position of trust or authority towards Student 2, a young person, with whom he was in an exploitative relationship, did for a sexual purpose, touch directly or indirectly the body of Student 2 with a part of his body to wit: his hands, contrary to the provisions of Section 153(1) of the Criminal Code of Canada;

(e) On or about the 1st day of June in the year 2002 and the 31st day of March in the year 2005 at the City of Hamilton in the said region did sexually assault Student 3, contrary to the provisions of Section 271 of the Criminal Code of Canada;

(f) On or about the 1st day of June in the year 2002 and the 31st day of March in the year 2005 at the City of Hamilton in the said region being in a position of trust or authority towards Student 3, a young person, with whom he was in an exploitative relationship, did for a sexual purpose, touch directly or indirectly the body of Student 3 with a part of his body to wit: his hands, contrary to the provisions of Section 153(1) of the Criminal Code of Canada;

(g) On or about the 1st day of September in the year 2002 and the 30th day of June in the year 2003 at the City of Hamilton in the said region being in a position of trust or authority towards Student 4, a young person, with whom he was in an exploitative relationship, did for a sexual purpose, touch directly or indirectly the body of Student 4 with a part of his body to wit: his hands, contrary to the provisions of Section 153(1) of the Criminal Code of Canada; and

(h) On or about the 1st day of September in the year 2002 and the 30th day of June in the year 2003 at the City of Hamilton in the said region did sexually assault Student 4, contrary to the provisions of Section 271 of the Criminal Code of Canada.

32. On September 15, 2022, the Member pleaded guilty to one count of sexual interference involving Student 1, one count of sexual exploitation involving Student 3 and one count of sexual assault involving Student 4. The remainder of the charges were withdrawn at the request of the Crown.

33. The Member was sentenced to 30 months’ incarceration to be served concurrently on each of the three counts for which the Member had entered guilty pleas. The Member was also made subject to several ancillary orders, including but not limited to a lifetime prohibition against seeking, obtaining or continuing any employment, whether nor 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 16 years.

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

35. Attached hereto and marked as Appendix “B” is a certified copy of the Court Information sworn on November 4, 2021, including the appearances/adjournments and disposition in the criminal proceeding.

36. Attached hereto and marked as Appendix “C” is a certified copy of the Prohibition Order and Prohibition Order Imposed at Sentencing, dated September 15, 2022.

37. Attached hereto and marked as Appendix “D” is a certified copy of the Non-Communication Order, dated November 1, 2022.

38. Attached hereto and marked as Appendix “E” is a certified transcript of Guilty Plea before the Honourable Justice J. Fiorucci of the Ontario Court of Justice, on September 15, 2022, at Hamilton, Ontario.

39. Attached hereto and marked as Appendix “F” is a certified transcript of Reasons for Sentence by the Honourable Justice J. Fiorucci of the Ontario Court of Justice, on September 15, 2022, at Hamilton, Ontario.

GUILTY PLEA

40. By this document, the Member admits the truth of the facts and appendices referred to in paragraphs 1-39 above (the “Admitted Facts”).

41. The Member hereby acknowledges that the conduct set out at paragraphs 5-8, 10-16, 18-23, 25-33, 35-39 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(7) (pre-2008), 1(7) (post-2008), 1(7.1), 1(7.2), 1(7.3) 1(16), 1(17), 1(18) and 1(19). The Member further acknowledges that the Admitted Facts constitute conduct which is sexual abuse of a student as defined in section 1 of the Ontario College of Teachers Act, 1996.

42. 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.

43. 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 September 19, 2023, finding that the Member engaged in acts of professional misconduct as alleged, contrary to Ontario Regulation 437/97, subsections 1(5), 1(7) (pre-2008), 1(7) (post-2008), 1(7.1), 1(7.2), 1(7.3), 1(16), 1(17), 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

8As noted in the Agreed Statement of Facts, the Member admitted the truth of the facts and exhibits referred to in paragraphs 1 to 39 of the Agreed Statement of Facts and Guilty Plea and admitted the allegations of professional misconduct against him. The Member acknowledged, and the Panel accepts, that paragraphs 5-8, 10-16, 18-23, 25-33 and 35-39 of the Admitted Facts constitute professional misconduct under the heads of misconduct set out above. The Admitted Facts demonstrate that the Member engaged in a pattern of inappropriate behaviour by subjecting several young female students to unwanted sexual touching and comments about their appearance. In the case of Student 2, these comments and touching escalated to an inappropriate sexual relationship. The Member pleaded guilty and was ultimately convicted in the Ontario Court of Justice of one count of sexual interference involving Student 1, one count of sexual exploitation involving Student 3 and one count of sexual assault involving Student 4.

9The Panel finds that the Member failed to maintain the standards of the profession contrary to the Ontario Regulation 437/97, subsection 1(5). Expert evidence regarding the standards of the profession is not required to prove that the standards were breached when the nature of the misconduct committed by a member is “so offside what is acceptable as to be self-evidently misconduct”.¹ In this case, the Member engaged in unwanted sexual touching of multiple female students and had a sexual relationship with one of his students. Professional misconduct involving sexual abuse, especially that committed against students, is the most egregious breach of the standards of the profession. As such, the Panel finds that the Member failed to maintain the standards of the profession in this case.

10The Admitted 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]. In this case, the Panel finds that the Member abused the students in all of the forms mentioned in subsection 1(7) [pre-May 2008 amendments]. The Member sexually abused Student 2, Student 3 and Student 4 by engaging in sexual touching and by having sexual intercourse with Student 2. By engaging in such conduct, the Member also physically abused Student 2, Student 3 and Student 4 by violating their bodily integrity. The Member verbally abused Student 2 by flirting with her and regularly commenting on her appearance. The victim impact statements of Student 2, Student 3 and Student 4 clearly indicate, and the Member acknowledges, that his conduct had a negative impact on their emotional and psychological well-being. As such, the Panel finds that the Member sexually, physically, verbally, psychologically and emotionally abused Student 2, Student 3 and Student 4.

11The Member abused a student verbally contrary to Ontario Regulation 437/97, subsection 1(7) (post-2008). The Member verbally abused Student 1 by making inappropriate comments of a sexual nature relating to her body and appearance. These comments were inappropriate, unprofessional, and abusive.

12The Member abused a student physically contrary to Ontario Regulation 437/97, subsection 1(7.1). The Member was responsible for the safety and physical well-being of Student 1. By tickling student 1 as he walked by her in the hallway, and by brushing up against Student 1’s buttocks, the Member violated Student 1’s bodily integrity, and engaged in physical abuse of Student 1.

13The Member abused a student psychologically or emotionally contrary to Ontario Regulation 437/97, subsection 1(7.2). The Member psychologically and emotionally abused Student 1. Student 1’s victim impact statement clearly indicates, and the Member acknowledges, that his conduct had a negative effect on her emotional and psychological well-being. The Panel therefore finds that the Member’s conduct constitutes emotional and psychological abuse.

14The Member abused a student sexually contrary Ontario Regulation 437/97, subsection 1(7.3) and/or engaged in sexual abuse of a student as defined in section 1 of the Act. The definition of sexual abuse under section 1 of the Act includes touching, of a sexual nature, of the student by the member or any behaviour or remark of a sexual nature towards a student. The Member’s behaviour included making remarks of a sexual nature to Student 1 and unwanted sexual touching of Student 1 on numerous occasions. The Panel therefore finds that the Member’s conduct meets the definition of sexual abuse of a student as set out in section 1 of the Act.

15The Member contravened subsections 1(16) and 1(17) of the Ontario Regulation 437/97 by contravening a law relevant to his suitability to hold a certificate of qualification and registration, and by contravening a law, the contravention of which put a student under the Member’s professional supervision to be at risk. It is noted that in criminal proceedings in the Ontario Court of Justice the Member was convicted of one count of sexual interference involving Student 1, one count of sexual exploitation involving Student 3 and one count of sexual assault involving Student 4. Sexual offences involving children are reprehensible and cast a serious doubt on a member’s ability to ensure the safety and well-being of students. The Member’s criminal conduct demonstrates that he put students under his professional supervision at risk. This is reflected, in part, through his criminal sentence which prohibits him from holding any employment or volunteer position that places him in the position of trust or authority over anyone under the age of 16 years.

16The Member committed an act or omission 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 repeated inappropriate behaviour towards Student 1, Student 2, Student 3 and Student 4 demonstrates a significant moral failing and a flagrant disregard for his professional obligations. The Member should have maintained appropriate professional boundaries with all his students, and he ought to have known that his actions fell well below the standards of the profession. Sexual offences, especially those committed against children, are abhorrent and demonstrate depravity of the Member. Such conduct demonstrates a lack of morality and professionalism by the Member and can therefore be characterized as disgraceful, dishonourable, and unprofessional.

17Finally, the Member’s conduct was unbecoming a member, contrary to Ontario Regulation 437/97, subsection 1(19). Members of the teaching profession are entrusted with the care of children and are expected to protect and respect students. The Member failed to exercise good judgment and care of his students by disrespecting their bodily integrity and personal boundaries. The Member’s conduct has undermined the reputation of the teaching profession and breaches the trust that members of the public in the teaching profession.

F. PENALTY Decision

18The parties entered into a Joint Submission on Penalty (Exhibit 3), which was presented to the Panel. In an oral decision rendered on September 19, 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

19The Member’s professional misconduct consisted of or included the sexual abuse of a student 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 as follows: (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.

20The 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 in light of the high threshold that must be met before rejecting a joint submission on penalty.

21The Panel denounces the Member’s misconduct in the strongest terms.

Footnotes

1. 1Novick v Ontario College of Teachers, 2016 ONSC 508, at para 71.