Ontario College of Teachers v. Nielsen, 2024 ONOCT 29

DISCIPLINE COMMITTEE OF THE ONTARIO COLLEGE OF TEACHERS

Citation: Ontario College of Teachers v Nielsen 2024 ONOCT 29

Date: 2024-08-06

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

Kirk Douglas Nielsen, a member of the Ontario College of Teachers.

BETWEEN:

ONTARIO COLLEGE OF TEACHERS

– and –

KIRK DOUGLAS NIELSEN (REGISTRATION #212895)

PANEL: Anthony Jeethan, OCT, Chair Rachelle Coleman Terrence Singh, OCT

HEARD: July 18, 2024

Nicole Walton, for the Ontario College of Teachers

No one appearing for Kirk Douglas Nielsen

Erica Richler, 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 J.J. Douglas of the Ontario Court of Justice, there is 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 July 18, 2024, in accordance with rule 8.01 of the Rules of Procedure of the Discipline Committee and of the Fitness to Practise Committee.

2Kirk Douglas Nielsen (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 transcript of Proceedings at Plea from the Member’s criminal proceeding before Justice J.J. Douglas dated February 24, 2023 (Exhibit 2 at Appendix G). 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 January 12, 2024 (Exhibit 1) are as follows:

IT IS ALLEGED that Kirk Douglas Nielsen 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, contrary to Ontario Regulation 437/97, subsection 1(7.1);

(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 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);

(f) 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); and

(g) 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. Kirk Douglas Nielsen is a member of the Ontario College of Teachers. His membership status was changed to “Inactive/Non-Practising” on April 21, 2023. Attached hereto and marked as Appendix “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 Simcoe County District School Board as a Teacher at [XXX] in [XXX], Ontario.

3. At all material times, Student 1 was a [XXX]-year-old male [XXX] of the Member.

4. Between on or about April 30, 2020, and on or about September 1, 2020, the Member engaged in sexual activities with Student 1, including touching of a sexual nature or oral sex.

Criminal Proceedings/Conviction

5. On or about October 29, 2020, the Member was arrested and charged by the Ontario Provincial Police with:

Between the 30th day of April, 2020, and the 1st day of September in the year 2020, at the Town of Collingwood, in the said Region, being in a position of trust or authority towards [Student 1], a young person, did, for a sexual purpose, invite, counsel, or incite [Student 1], a young person, to touch directly with his mouth, to wit, the penis of Kirk Douglas Nielsen, contrary to section 153(1) of the Criminal Code.

6. On September 27, 2022, the Member pleaded guilty to one count of sexual exploitation involving Student 1 before the Honourable Justice J.J. Douglas in the Ontario Court of Justice in Barrie.

7. On February 24, 2023, the Member was sentenced to three months in custody and 24 months’ probation with conditions. The Member was also made subject to a number of ancillary orders.

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

9. Attached hereto and marked as Appendix “B” is a certified copy of the Court Information sworn on February 24, 2023, including the appearances/ adjournments and disposition in the criminal proceeding.

10. Attached hereto and marked as Appendix “C” is a certified copy of the Prohibition Order Imposed at Sentencing, dated February 24, 2023.

11. Attached hereto and marked as Appendix “D” is a certified copy of the Non-Communication Order, dated February 24, 2023.

12. Attached hereto and marked as Appendix “E” is a certified copy of the Probation Order, dated February 24, 2023.

13. Attached hereto and marked as Appendix “F” is a certified transcript of Proceedings at Guilty Plea before the Honourable Justice J. J. Douglas of the Ontario Court of Justice, on September 27, 2022, at Barrie, Ontario.

14. Attached hereto and marked as Appendix “G” is a certified transcript of Proceedings at Plea by the Honourable Justice J. J. Douglas of the Ontario Court of Justice, on February 24, 2023, at Barrie, Ontario.

GUILTY PLEA

15. By this document, the Member admits the truth of the facts and appendices referred to in paragraphs 1-14 above (the “Admitted Facts”).

16. The Member hereby acknowledges that the conduct set out at paragraphs 4-8 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), 1(7.2), 1(7.3) 1(16), 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.

17. 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.

18. 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 July 18, 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), 1(7.2), 1(7.3), 1(16), 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 14 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 inappropriate and sexually abusive behaviour towards Student 1. The Member pled guilty to and was convicted of one count of sexual exploitation, contrary to section 153(1) of the Criminal Code of Canada.

9The Panel finds that the Member failed to maintain the standards of the profession contrary to subsection 1(5) of Ontario Regulation 437/97. The Member pled guilty to and was criminally convicted of sexual exploitation of Student 1. Engaging in sexual activities with a student is a serious breach of the ethical and professional standards of the profession. The Panel finds the Member’s conduct to be so notorious and offside of what is acceptable that expert evidence is not required to prove the standards of the profession were breached.¹

10The Panel finds that the Member breached subsection 1(7.1) of Ontario Regulation 437/97 by making inappropriate physical contact with Student 1. The Member’s physically abusive conduct included touching Student 1’s stomach and genital area and asking Student 1 to perform oral sex on the Member. This conduct continued for a period of about five months. The Panel therefore finds the Member’s conduct to be physically abusive.

11The Member’s conduct constitutes psychological or emotional abuse of a student contrary to subsection 1(7.2) of the Ontario Regulation 437/97. Although Student 1 did not provide a Victim Impact Statement in the Member’s criminal proceeding, it can be reasonably inferred that his mental well-being was adversely affected by the Member’s conduct. In his statement to the police, Student 1 admitted to being confused and questioned whether engaging in these sexual acts with the Member “was right”’ (Exhibit 2, Appendix G). Student 1 also stated to the police that he felt what they were doing together was wrong. As such, the Panel finds the Member psychologically and emotionally abused Student 1.

12The Member’s conduct constitutes sexual abuse of a student contrary to subsection 1(7.3) of the Ontario Regulation 437/97 and as defined in section 1 of the Act. The definition of sexual abuse at section 1 of the Act includes touching and behaviour or remarks of a sexual nature by a member towards a student. Although Student 1 was not the Member’s student, he meets the definition of a student for the purposes of a sexual abuse finding, as set out at section 1(2) of the Act. The Member sexually abused Student 1 by touching his stomach and genital area and by asking Student 1 to perform oral sex on the Member. This finding is further supported by the fact that the Member was found guilty and convicted of sexual exploitation of Student 1 in his prior criminal proceedings.

13The Panel finds the Member’s prior finding of guilt for sexually exploiting Student 1 demonstrates that he contravened a law relevant to his suitability to hold a Certificate of Qualification and Registration contrary to subsection 1(16) of the Ontario Regulation 437/97. Members who have been found guilty of a criminal and sexual offence involving students have cast doubt on their ability to continue to be trusted with the privilege and responsibility of ensuring students’ safety and well-being. The Panel therefore finds that the Member has contravened a law relevant to his suitability to continue teaching.

14The Member’s misconduct is disgraceful, dishonourable or unprofessional contrary to subsection 1(18) of Ontario Regulation 437/97. Sexual abuse of a student is reprehensible. Members of the teaching profession are expected to be upstanding members of society, to model good behaviour and values, and to safeguard the well-being and development of students. The Member did the opposite by sexually abusing Student 1. The teaching profession does not tolerate sexual abuse of students. The Member’s egregious conduct demonstrates moral failings, and his behaviour was clearly disgraceful, dishonourable, and demonstrated a lack of professional judgment.

15The Member’s abusive conduct which led to a criminal finding of guilt, as described above, is self-evidently unbecoming a member contrary to subsection 1(19) of Ontario Regulations 437/97. Public confidence in teachers (and the teaching profession as a whole) is undermined when members engage in heinous acts of abuse, especially sexual abuse of students.

F. PENALTY DECISION

16The parties entered into a Joint Submission on Penalty (Exhibit 3), which was presented to the Panel. In an oral decision rendered on July 18, 2024, the Panel accepted the Joint Submission on Penalty and made the following order:

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

2. The Registrar 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 directed to reimburse the College, pursuant to s. 30(4)5 of the Ontario College of Teachers Act, 1996 (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

17The 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.

18The Panel further accepts the parties’ joint submission with respect to the requirement that the Member reimburse the College for any funding provided under the Therapy and Counselling Program, pursuant to paragraph 5 of subsection 30(4) of the Act. The Panel finds that this discretionary portion of the parties’ Joint Submission on Penalty is neither unduly harsh nor unduly lenient such as to bring the administration of the discipline process into disrepute², given the parties’ joint submission and based on the following case law presented by College Counsel: Ontario College of Teachers v. Siegel, 2023 ONOCT 29 and Ontario College of Teachers v. Wise, 2023 ONOCT 44. An order for reimbursement of any funding provided by the College under the Therapy and Counselling program can be made where a member’s act of professional misconduct consists of or includes sexual abuse (as in this case), a prescribed sexual act or a prohibited act involving child pornography.

19On May 8, 2018, subsection 58.1 was added to the Act, introducing the Program to the legislative framework. Following this addition, Ontario Regulation 438/19 governing Funding for Therapy and Counselling was enacted on January 1, 2020. Since the Member’s sexual abuse occurred after January 1, 2020, the Panel has the authority to order such reimbursement. This reimbursement order will ensure that the College membership as a whole does not bear the financial costs of any funding the College provides to Student 1 and/or his family for therapy and counselling under the Program. This will support the ability of Student 1, as the victim of sexual abuse, and his family, to seek therapy and counselling if necessary to support Student 1. It will also serve as a general deterrent and protect the public by sending a clear message to the profession that the Panel takes such matters seriously and is supportive of the therapeutic needs of students and their families. In accepting the parties’ agreement to require the Member to reimburse the College under the Program, the Panel is satisfied that the penalty is appropriate in the circumstances and meets the principle of serving and protecting the public interest.

20The Panel denounces the Member’s misconduct in the strongest terms.

Footnotes

1. 1See Novick v Ontario College of Teachers, 2016 ONSC 508, at paragraph 71.
2. 2See R. v. Anthony-Cook, 2016 SCC 43, and Bradley v. Ontario College of Teachers, 2021 ONSC 2303.