Ontario College of Teachers v. Shaw, 2024 ONOCT 17

DISCIPLINE COMMITTEE OF THE ONTARIO COLLEGE OF TEACHERS

Citation: Ontario College of Teachers v Shaw 2024 ONOCT 17

Date: 2024-05-09

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 Tyler Kenneth Shaw, a member of the Ontario College of Teachers.

BETWEEN:

ONTARIO COLLEGE OF TEACHERS

– and –

TYLER KENNETH SHAW (REGISTRATION #508272)

PANEL: Adam Dharsee, OCT, Chair Susan Arbour, OCT Victoria Romero

HEARD: April 25, 2024

COUNSEL: Zirka Jakibchuk, for the Ontario College of Teachers No one appearing for Tyler Kenneth Shaw Renée Kopp, 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 D. Isaac 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 April 25, 2024, in accordance with rule 8.01 of the Rules of Procedure of the Discipline Committee and of the Fitness to Practise Committee.

2Tyler Kenneth Shaw (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 copies of the transcripts of the Reasons for Judgment and the Reasons for Sentencing from the Member’s criminal proceedings before Justice K. McHugh, dated November 5, 2021 and February 23, 2022, respectively (Exhibit 2 at Appendix E and F). In these proceedings before the Ontario Court of Justice, an order was made by Justice D. Isaac of the Ontario Court of Justice on October 4, 2020, restricting publication 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 February 6, 2024 (Exhibit 1), are as follows:

IT IS ALLEGED that the Member 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, verbally, contrary to Ontario Regulation 437/97, subsection 1(7);

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

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

(e) 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;

(f) 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);

(g) 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(17);

(h) 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);

(i) 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. Tyler Kenneth Shaw is a member of the Ontario College of Teachers. He has been the subject of an Undertaking not to Teach since January 19, 2021, and his membership status has been “Inactive/Non-Practising” since May 28 2021. Attached hereto and marked as Appendix “A” is a copy of the Member’s Ontario College of Teachers Registered Member Information.

2. At all material times, the Member was employed by the Lambton Kent District School Board as a teacher at [XXX] School (the “School”) in Sarnia, Ontario.

3. At all material times, Student 1 was a [XXX]-year-old female student at the School.

4. In the first semester of the 2019-2020 academic year, Student 1 was a registered student in one of the Member’s classes. In the second semester, while not officially registered in any of the Member’s classes, Student 1 frequented the Member’s classroom while he taught and attended the Member’s classes virtually, from time to time, after the COVID-19 pandemic shutdown.

5. Between in or around April 2020 and in or around July 2020, the Member engaged in an inappropriate personal and sexual relationship with Student 1, which included:

(a) engaging in electronic communications of a personal nature with Student 1, using the Member’s Board and personal email addresses, and on social media via Snapchat and Instagram;

(b) deleting his email exchanges with Student 1 on Board email, before switching to other forms of communication, and convincing Student 1 to do the same;

(c) regularly spending time alone with Student 1 during and/or after school hours, including allowing her to visit his classroom while he taught;

(d) meeting with Student 1 off school property on more than one occasion, including in the Member’s car, at the Member’s home, and at Student 1’s home; and

(e) engaging in physical and sexual contact with Student 1, including handholding, cuddling, and kissing.

6. In the summer of 2020, after Student 1 had graduated from high school (but while she was still [XXX] years old), the Member met up with Student 1 on two other occasions. On each of these occasions, the Member engaged in physical and sexual contact with Student 1, including oral and vaginal sex.

Criminal Proceedings/Conviction

7. On or about September 14, 2020, the Member was arrested and charged with:

(a) Between the 1st day of April in the year 2020 and the 31st of July 2020 at the village of Courtright and elsewhere in the Province of Ontario in the said Region, did commit a sexual assault on Student 1, contrary to Section 271 of the Criminal Code (Canada); and

(b) Between the 1st day of April in the year 2020 and the 31st of July 2020 at the village of Courtright and elsewhere in the Province of Ontario in the said Region, being in a position of trust or authority towards Student 1 did for sexual purpose touch directly the body of Student 1, a young person, with a part of his body to wit, his hands, contrary to Section 153 of the Criminal Code (Canada).

8. On November 5, 2021, the Member was found guilty of one count of sexual assault and one count of sexual exploitation involving Student 1. The sexual assault charge was stayed by operation of the Kienapple principle.¹

9. On February 23, 2022, the Member was sentenced to four months in custody, followed by 12 months’ probation, in relation to the conviction for sexual exploitation. He was also made subject to a number of ancillary orders.

10. The Member appealed his conviction. On September 25, 2023, the Member’s appeal was dismissed.

11. On October 3, 2023, the Board terminated the Member’s employment.

12. Attached hereto and marked as Appendix “B” is a certified copy of the Court Information sworn on September 14, 2020, including the appearances/adjournments and disposition in the criminal proceeding before the Honourable Justice K. McHugh of the Ontario Court of Justice.

13. Attached hereto and marked as Appendix “C” is a certified copy of the Prohibition Order Imposed at Sentencing, dated February 23, 2022.

14. Attached hereto and marked as Appendix “D” is a certified copy of the Probation Order, dated February 23, 2022.

15. Attached hereto and marked as Appendix “E” is a certified transcript of Reasons for Judgment of the Honourable Justice K. McHugh of the Ontario Court of Justice, dated November 5, 2021.

16. Attached hereto and marked as Appendix “F” is a certified transcript of the Reasons for Sentence of the Honourable Justice K. McHugh of the Ontario Court of Justice, dated February 23, 2022.

17. Attached hereto and marked as Appendix “G” is a copy of the appeal decision of the Honourable Justice R. Raikes of the Superior Court of Justice - Ontario, dated September 25, 2023.

GUILTY PLEA

18. By this document, the Member admits the truth of the facts and appendices referred to in paragraphs 1-17 above (the “Admitted Facts”).

19. The Member hereby acknowledges that the conduct set out at paragraphs 5-10, 12 and 15-17 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), 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 ‘sexual abuse’ of a student as defined in section 1 of the Ontario College of Teachers Act, 1996.

20. 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.

21. 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 April 25, 2024, finding that the Member engaged in acts of professional misconduct as alleged, contrary to Ontario Regulation 437/97, subsections 1(5), 1(7), 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 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 1 to 17 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 paragraphs 5 to 10, 12, and 15 to 17 of the Admitted Facts constitute professional misconduct under the heads of misconduct set out above. The Admitted Facts demonstrate that the Member engaged in an inappropriate personal and sexual relationship with a student while she was a student at the School and after she had graduated.

9The Panel finds that the Member failed to maintain the standards of the profession, contrary to Ontario Regulation 437/97, subsection 1(5). The Member engaged in a personal and sexual relationship with Student 1, including communicating with her electronically, spending time with her alone, holding her hand, hugging, and kissing her, and having sexual intercourse on more than one occasion. This behaviour is a flagrant breach of the standards of the teaching profession. Through his actions, the Member breached the four ethical standards of “Care”, “Respect”, “Trust” and “Integrity”. The ethical standard of “Care” requires members to demonstrate their commitment to student well-being and learning through positive influence, compassion, and empathy in practice. By engaging in a personal and sexual relationship with his student, the Member demonstrated disregard for Student 1’s physical and emotional well-being, thus breaching the standard of “Care”. The ethical standard of “Respect” requires members to honor human dignity, emotional wellness and cognitive development. The Member similarly breached this standard by failing to consider the emotional impact that a relationship with a teacher can have on a young student. The standard of “Trust” embodies fairness, openness and honesty in a member’s professional relationships with students. By convincing Student 1 to delete their email exchanges, the Member breached this standard and took advantage of his position of trust and authority of Student 1 for his own benefit. Finally, the standard of “Integrity” requires members to conduct themselves with honesty, reliability and moral action. The Member failed to adhere to this standard by acting abhorrently and immorally in fostering a personal, physical, and sexual relationship with Student 1.

10The Panel also finds that the Member breached the standard of practice entitled “Commitment to Students and Student Learning”, by failing to treat Student 1 with care and respect and creating an unsafe learning environment for her. Additionally, the Panel finds that the Member failed to adhere to guidance provided by several professional advisories, which inform the standards of the profession, including “Maintaining Professionalism – Use of Electronic Communication and Social Media”, and “Professional Misconduct of a Sexual Nature”. The former advisory describes best practices for Members when engaging with students electronically, including maintaining professional boundaries by communicating with students electronically through established education platforms. The latter advisory advises members that they hold a unique position of trust and authority and reminds members that physical and sexual relationships with students are prohibited. Finally, The Panel notes that the Member’s sexual relationship with Student 1 while she was a student at the School and after she had graduated, is behaviour that is so notorious and contrary to what is considered acceptable, that expert evidence is not required to prove that he breached the standards of the profession.²

11The Panel finds that the Member abused a student verbally, contrary to Ontario Regulation 437/97, subsection 1(7). Between in or around April 2020 and in or around July 2020, while Student 1 was enrolled as a student at the School, the Member engaged in electronic communications of a personal nature with Student 1, using the Member’s Board and personal email addresses, and on social media. In the Reasons for Sentence, Justice McHugh found that the Member communicated with Student 1 over personal email, which eventually led to their meeting in person during the period of time that the Member sexually abused Student 1 while she was a student at the School (Exhibit 2, Appendix F). In light of these circumstances, the Panel finds that the Member’s personal communications with Student 1, including convincing Student 1 to delete their email exchanges, were verbally abusive. Through his actions, the Member fostered an inappropriate relationship, and took advantage of his position of power over Student 1 to protect himself and his own interests. Members of the teaching profession are expected to maintain professional boundaries with students in all forms of communication and to be positive role models for students. The Member failed to do so through his verbally abusive communications with Student 1.

12The Panel finds that the Member abused a student physically, contrary to Ontario Regulation 437/97, subsection 1(7.1). Between in or around April 2020 and in or around July 2020, the Member engaged in physical and sexual contact with Student 1, including handholding, cuddling and kissing. In doing so, the Member physically violated the professional boundaries between himself, as a teacher, and a student. After Student 1 had graduated from the School, the Member engaged in physical and sexual contact with Student 1 on two other occasions. The Member was subsequently found guilty of one count of sexual assault and one count of exploitation involving Student 1. As such, the Panel finds that the Member physically abused Student 1, as he violated Student 1’s bodily integrity in a manner that was wholly inappropriate of a member of the teaching profession. Members are expected to maintain professional boundaries and ensure that any physical contact with students is professional and appropriate. In failing to do so, the Member physically abused Student 1.

13The Panel finds that the Member abused a student psychologically or emotionally, contrary to Ontario Regulation 437/97, subsection 1(7.2). The Member fostered a personal relationship with Student 1 by communicating with her electronically and regularly spending time alone with her on and off School property. The Member also engaged in physical and sexual contact with Student 1, including handholding, cuddling and kissing and had oral and vaginal sex with her after she had graduated (but while she was still [XXX]-years old). It is psychologically or emotionally abusive for the Member to have engaged in a personal and sexual relationship with a student. Through his actions, the Member demonstrated a lack of regard for Student 1’s psychological or emotional well-being and only acted to serve his selfish desires. The Member also psychologically or emotionally abused Student 1 when he convinced Student 1 to delete their email exchanges through his Board-issued email address. By influencing Student 1’s actions, the Member manipulated his position of trust and authority to protect himself and his interests.

14The Panel finds that the Member abused a student or students sexually, contrary to Ontario Regulation 437/97, subsection 1(7.3) and engaged in sexual abuse of a student or students as defined in section 1 of the Act. The Member engaged in physical and sexual contact with Student 1 while she was a student at the School, by holding her hand, cuddling and kissing her. After Student 1 had graduated (but while she was still [XXX]-years old), the Member engaged in more physical and sexual contact with Student 1, including oral and vaginal sex. The Panel finds that the Member’s actions meet the definition of sexual abuse of a student in section 1 of the Act, as they include sexual intercourse, touching of a sexual nature of a student by the member, and behaviour or remarks of a sexual nature by the member towards the student. The Panel further notes that Student 1 meets the definition of a student as defined in section 1(2) of the Act, as she was under the age of 18 at all material times of the Member’s misconduct.

15The Panel finds that the Member contravened a law, the contravention of which is relevant to the member’s suitability to hold a certificate of qualification and registration, and which has caused or may cause a student who is under his professional supervision to be put at or to remain at risk, contrary to Ontario Regulation 437/97, subsections 1(16) and 1(17), respectively. The Member was found guilty of sexual assault and sexual exploitation involving Student 1. These guilty findings demonstrate that he contravened laws relevant to his suitability to hold a certificate of qualification and registration. These contraventions caused Student 1 to be put at risk while she was a student at the School and attended the Member’s classes. The Panel finds that the Member’s misconduct is so fundamental to student safety, that it could have reasonably caused other students to be put at or remain at risk as well. The Member’s predatory behaviour is evidence of his poor suitability to hold the trusted position of a teacher and casts serious doubt on his ability to ensure the well-being of students.

16The Panel finds that the 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). By engaging in a personal and sexual relationship with Student 1, he demonstrated a concerning lack of concern for her well-being and safety. He took advantage of his position of power and authority to violate professional boundaries with Student 1. He ought to have known that his behaviour was inappropriate, yet he continued to flout professional boundaries with Student 1 on multiple occasions.

17Similarly, the Panel finds that the Member engaged in conduct unbecoming a member, contrary to Ontario Regulation 437/97, subsection 1(19). The Member eroded the reputation of the teaching profession and breached the trust that parents, students and the public place in teachers to act as positive role models and keep their children safe. The Member’s actions in abusing Student 1 violated the trust placed in him by students, teachers, and the public.

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 April 25, 2024, the Panel accepted the Joint Submission on Penalty and made the following order:

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

3. The Member is required to reimburse the College, pursuant to s. 30(4)5 of the Act, for any funding provided to date for a person or persons under the Therapy and Counselling Program established under s. 58.1 of the Act (the “Program”), and for any future funding provided under the Program.

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: (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. With respect to the form of the reprimand, the Panel finds that a written reprimand is appropriate, given the agreement of the parties.

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 penalties presented in the Joint Submission on Penalty. 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.³

21The Panel further accepts the parties’ joint submission, requiring that the Member reimburse the College for any funding provided under the Therapy and Counselling Program. In accordance with paragraph 5 of subsection 30(4) of the Act, an order for reimbursement of any funding provided by the College under this Program can be made where a member’s act of professional misconduct consists of or includes sexual abuse (as it was in this case), a prescribed sexual act or a prohibited act involving child pornography. Since the Member’s sexual abuse occurred after the Ontario Regulation 438/19 governing Funding for Therapy and Counselling was enacted on January 1, 2020, the Panel has the authority to make this order. The Panel finds this appropriate, given the parties’ agreement and the caselaw presented by College Counsel: Ontario College of Teachers v. Lee, 2022 ONOCT 66; Ontario College of Teachers v. Wise, 2023 ONOCT 44; Ontario College of Teachers v. Siegel, 2023 ONOCT 29; and College of Early Childhood Educators v. Harker, 2020 ONCECE 4. Should Student 1, as the victim of sexual abuse, or members of her family seek therapy and counselling to support Student 1 through the Program, this order will ensure that the financial costs will be borne by the Member who caused the harm and not the membership of the College. Further, this order will serve as a general deterrent to the membership at large, indicating that in addition to the loss of one’s profession, such misconduct may result in financial ramifications. This order will also support the ability of Student 1 and her family to seek therapy and counselling to support Student 1, if necessary.

22The Panel denounces the Member’s misconduct in the strongest terms.

Footnotes

1. 1R v. Kienapple, 1974 CanLII 14 (SCC), [1975] 1 S.C.R. 729, articulates the principle that even though a person can be found guilty of more than one offence, they cannot be convicted of more than one offence resulting from the same act.
2. 2See Novick v Ontario College of Teachers, 2016 ONSC 508 at paragraph 71.
3. 3See R. v. Anthony-Cook, 2016 SCC 43, [2016] 2 S.C.R. 204; Bradley v. Ontario College of Teachers, 2021 ONSC 2303.