Ontario College of Teachers v. Barrett, 2024 ONOCT 7

DISCIPLINE COMMITTEE OF THE ONTARIO COLLEGE OF TEACHERS

Citation: Ontario College of Teachers v Barrett 2024 ONOCT 07

Date: 2024-03-03

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 Marc Stephen Barrett, a member of the Ontario College of Teachers.

BETWEEN:

ONTARIO COLLEGE OF TEACHERS

– and –

MARC STEPHEN BARRETT (REGISTRATION #637100)

PANEL: Lois Figg, Chair Adam Lee, OCT Terrence Singh, OCT

HEARD: February 27, 2024

Jordan Stone, for the Ontario College of Teachers Marc Stephen Barrett, self-represented 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.

1This proceeding was heard electronically before a panel of the Discipline Committee (the “Panel”) of the Ontario College of Teachers (the “College”) on February 27, 2024, in accordance with rule 8.01 of the Rules of Procedure of the Discipline Committee and of the Fitness to Practise Committee.

2Marc Stephen Barrett (the “Member”) attended 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.

B. THE ALLEGATIONS

4The allegations against the Member in the Notice of Hearing dated May 9, 2023 (Exhibit 1) are as follows:

IT IS ALLEGED that the Marc Stephen Barrett is guilty of professional misconduct as defined in the Act in that:

a. 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);

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

C. STATEMENT OF UNCONTESTED FACTS

5College Counsel presented the Panel with the parties’ Statement of Uncontested Facts and Plea of No Contest (Exhibit 2), which provides the following:

1. At all material times, Marc Stephen Barrett was a member of the Ontario College of Teachers. Since May 7, 2022, the Member’s Certificate of Qualification and Registration has been suspended for non-payment of fees. 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 Hamilton-Wentworth District School Board as a teacher at Prince of Wales Elementary School in Hamilton, Ontario.

3. On February 21, 2019, police officers with the Hamilton Police Service executed a search warrant of the Member’s residence and located controlled substances, including 8 grams of methamphetamine and 10 pills of codeine. Police also located baggies and scales.

4. On February 21, 2019, the Member was charged with possession of methamphetamine for the purpose of trafficking contrary to section 5(2) of the Controlled Drugs and Substances Act (“CDSA”) and unlawful possession of codeine contrary to section 4(1) of the CDSA.

5. The Member was released from custody on a recognizance, which required that he not possess or consume any unlawful drugs or substances except with a valid prescription in his name.

6. On March 1, 2019, the Member was observed by police leaving a residence in an area known for high levels of disturbances and drug offences. When police spoke with the Member, he admitted to having drugs in his possession. The police conducted a search of the Member and found 8.7 grams of methamphetamine and $370 in cash in the Member’s possession.

7. On March 2, 2019, the Member was charged with possession of methamphetamine for the purpose of trafficking contrary to section 5(2) of the CDSA, possession of property obtained by crime contrary to section 355(b) of the Criminal Code of Canada (the “Code”), and breach of a condition of his recognizance contrary to section 145(3) of the Code (as it was then).

8. On December 16, 2020, the charges against the Member were withdrawn by the Crown due to excessive delay.

PLEA OF NO CONTEST

9. By this document, the Member pleads no contest, for the purposes of this proceeding only, to the truth of the facts and appendices referred to in paragraphs 1-8 above (the “Uncontested Facts”).

10. The Member hereby acknowledges that paragraphs 3-7 of the Uncontested Facts constitute conduct which is professional misconduct as defined in the Ontario College of Teachers Act, 1996 and pleads no contest to the allegations of professional misconduct against him, being more particularly:

a. 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);

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

11. By this document the Member states that:

a. he understands fully the nature of the allegations against him;

b. he understands that 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 Discipline 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 with respect to the penalty proposed does not bind the Discipline Committee; and

g. he understands and acknowledges that he is executing this agreement voluntarily, unequivocally, and with the advice of legal counsel or having had the opportunity to obtain legal advice.

12. The Member provides this plea of no contest pursuant to Rule 3.02 of the Rules of Procedure of the Discipline Committee and Fitness to Practise Committee under protection of the Evidence Act, R.S.O. 1990, for the purposes of this proceeding under the Ontario College of Teachers Act, 1996, 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.

13. In light of the Uncontested Facts and circumstances and the plea of no contest, the Ontario College of Teachers and the Member submit that the Discipline Committee find the Member guilty of professional misconduct.

D. DECISION

6Having considered the Statement of Uncontested Facts and Plea of No Contest and the submissions of College Counsel, the Panel rendered an oral decision on February 27, 2024, finding that the Member engaged in acts of professional misconduct as alleged, contrary to Ontario Regulation 437/97, subsections 1(18) and 1(19).

E. REASONS FOR DECISION

7The Member did not contest the facts and exhibits referred to in paragraphs 1 to 8 of the Statement of Uncontested Facts and Plea of No Contest and pled no contest to the allegations of professional misconduct against him. The Member 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 behaviour by being in possession of illegal drugs on two occasions. By his acts, the Member undermined the public’s confidence in the teaching profession and he engaged in conduct that was disgraceful, dishonourable, unprofessional, and unbecoming of a member of the teaching profession.

8The Panel finds that the Member committed acts that, having regard to all of the circumstances, would reasonably be regarded by members as disgraceful, dishonourable or unprofessional, contrary to Ontario Regulation 437/97, subsection 1(18). The Member demonstrated a severe lack of judgment when he engaged in illegal activities, such as repeated acts of possession of controlled substances. Although the member’s conduct led to criminal charges, the Panel acknowledges that the Member was not criminally convicted and there was no finding of guilt. Members of the teaching profession are expected to demonstrate exemplary judgment and conduct while at school and in the community. The Member’s behaviour was a flagrant violation of this expectation. The Panel finds that the Member’s conduct would reasonably be regarded by members as disgraceful, dishonourable or unprofessional.

9The Member is also found to have engaged in conduct unbecoming a member, contrary to Ontario Regulation 437/97, subsection 1(19). Members of the teaching profession are expected to act as role models and to set positive examples for students, including abiding by the law. When Members engage in illegal and inappropriate behaviour, their conduct tarnishes the reputation of the teaching profession and breaches the trust that students, parents and the public place in the profession. The Panel therefore finds that the Member engaged in conduct unbecoming a member.

F. PENALTY DECISION

10The parties entered into a Joint Submission on Penalty (Exhibit 3), which was presented to the Panel. In an oral decision rendered on February 27, 2024, the Panel accepted the Joint Submission on Penalty and made the following order:

1. The Member is directed to appear before the Discipline Committee immediately following the hearing of this matter to receive a reprimand, which will be delivered electronically, and the fact of the reprimand is to be recorded on the Register of the Ontario College of Teachers;

2. The Registrar is directed to suspend the Certificate of Qualification and Registration of the Member for a period of 9 months commencing on the 15th calendar day following the date of the Decision and the Order of the Discipline Committee relating to this matter;

3. The Registrar is directed to impose the following terms, conditions, or limitations on the Member’s Certificate of Qualification and Registration:

a. prior to accepting any position in Ontario that requires a Certificate of Qualification and Registration, the Member shall enrol in and successfully complete, at his own expense, coursework of instruction pre-approved by the Registrar regarding professional ethics, subject to the following conditions:

i. the Member shall provide the course practitioner approved by the Registrar a copy of the Statement of Uncontested Facts and Plea of No Contest and Joint Submission on Penalty documents made exhibits at the hearing of this matter, and the Decision and Reasons of the Discipline Committee;

ii. upon review of the documents noted at paragraph 3(a)(i) above, the course practitioner shall provide to the Registrar, for approval, a syllabus for the proposed course which specifically addresses the Discipline Committee's concerns regarding the Member's professional misconduct. The syllabus proposed by the course practitioner shall also specify the length of the course to be undertaken by the Member and the assignments to be completed by the Member; and

b. within 30 days of his completion of the course outlined in paragraph 3(a) above, the Member shall provide to the Registrar a report from the course practitioner stating that the Member has successfully completed the course and reporting on the progress of the Member with respect to addressing the outlined goals of the course.

G. REASONS FOR PENALTY DECISION

11The Panel accepts the penalty jointly proposed by the parties. The Panel recognizes that, once it ensures that it has jurisdiction to make the order requested, the law confines the Panel’s role to determining whether the proposed penalty is so unreasonable that accepting it would bring the administration of the discipline process into disrepute or be otherwise contrary to the public interest.¹ The Panel finds that the penalty proposed in the Joint Submission on Penalty is neither unduly harsh nor unduly lenient such as to bring the administration of the discipline process into disrepute, based on the following prior decisions of the Discipline Committee presented by College Counsel: Ontario College of Teachers v. Moore, 2006 ONOCT 32, Ontario College of Teachers v. Corrigan, 2007 ONOCT 12, Ontario College of Teachers v. Michaud, 2016 ONOCT 36 and Ontario College of Teachers v. Hungerford, 1999 ONOCT 10.

12The Panel considered the Member’s circumstances in comparison to the cases provided. The aggravating factors in the Member’s case are that the Member’s conduct is criminal in nature and the Member was arrested for two acts of possession of controlled substances, of which one of the incidents involved breaching court conditions. In terms of mitigating factors, the Member did not contest his misconduct, saving the time and expense of a contested hearing, and has not been the subject of discipline proceedings in the past. After weighing these factors, the Panel accepts that the penalty proposed would not bring the administration of the discipline process into disrepute.

13The Panel finds that the Member’s serious misconduct warrants a reprimand. The Member’s conduct is worrisome and unacceptable. Members of the teaching profession are expected to serve as model citizens and role models in the community, which the Member failed to do through his misconduct. The reprimand will allow the Panel to directly address its concerns to the Member and will serve as a specific deterrent. Recording the fact of the reprimand on the Register will serve as a general deterrent to other members of the profession.

14The Panel finds that the course of instruction regarding professional ethics will contribute to the rehabilitation of the Member, should he decide to return to the teaching profession after his suspension. Furthermore, the coursework will remind the Member of his obligations as a teacher and will assist him to make more ethical decisions in his personal and professional life.

15Given the nature and severity of the Member’s misconduct, the Panel finds that a nine-month suspension is reasonable and appropriate. While the cases presented are factually distinct from this case, the misconduct represented in those cases is of a similar underlying nature and the cases confirm that a suspension is justified. The suspension will serve as a specific deterrent to the Member and a general deterrent to other members of the profession, making clear that the kind of misconduct the Member engaged in is abhorrent. In accordance with the parties’ joint submission, the Member’s suspension will begin on March 14, 2024, which is 15 days following the Panel’s Decision and Order.

16The Panel is satisfied that the penalty is appropriate in the circumstances and meets the principle of serving and protecting the public interest.

Footnotes

1. 1See R. v. Anthony-Cook, 2016 SCC 43, [2016] 2 S.C.R. 204, and Bradley v. Ontario College of Teachers, 2021 ONSC 2303.