Discipline Committee of the Ontario College of Teachers
Citation: Ontario College of Teachers v. Bujacz, 2025 ONOCT 14 Date: 2025-03-03
Decision and Reasons on Motion
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 Lee Allan Bujacz, a member of the Ontario College of Teachers.
Between:
Ontario College of Teachers
– and –
Lee Allan Bujacz (Registration #526770)
Panel: Stéphane Vallée, OCT, Chair Yasser Leheta, OCT Kimberley Westfall-Connor
Heard: October 12, November 7, 2023; January 25, February 28, 2024; additional submissions in writing.
Counsel: Andrew Matheson and Noam Uri, for the Ontario College of Teachers Christopher Perri and Kaley Duff, for Lee Allan Bujacz Ravi Amarnath, Emily Owens and Erin Rooney, for the Ministry of the Attorney General of Ontario Julie Maciura, Independent Legal Counsel
PUBLICATION BAN: Pursuant to subsections 32.1(3) and 32.1(4) 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, or the person who was allegedly sexually abused or the subject of sexual misconduct, a prohibited act involving child pornography, or a prescribed sexual act.
1This proceeding, a constitutional motion, was heard electronically before a panel of the Discipline Committee (the “Panel”) of the Ontario College of Teachers (the “College”), in accordance with rule 8.01 of the Rules of Procedure of the Discipline Committee and of the Fitness to Practise Committee (the “Rules”). Additional submissions were made in writing by all parties, in accordance with rule 9 of the Rules.
2Lee Allan Bujacz (the “Member”) did not attend the motion but had legal counsel attend on his behalf.
3On August 30, 2021, the Member brought a motion challenging the constitutionality of sections 30.2(1), 30.2(2), 30.3, and 33(4.1) of the Ontario College of Teachers Act, 1996 (the “Act”). On September 13, 2021, the Panel found that the Member’s motion was premature and declined to hear the Member’s motion before a finding of sexual abuse, if any, was made.
4On February 10, 2023, the Panel found that the Member contravened subsections 1(5), 1(7), 1(7.2), 1(7.3), 1(14), 1(15), 1(18) and 1(19) of Ontario Regulation 437/97. The Panel also found that the Member engaged in sexual abuse of a student as defined in section 1 of the Act.
5On June 20, 2023, the Panel ordered that the Member receive a reprimand and that the Registrar immediately revoke his Certificate of Qualification and Registration (“Certificate”). The Panel remained seized of this matter for the purpose of hearing the Member’s constitutional motion.
6On October 12, 2023, the Panel reconvened to hear the constitutional motion. Prior to making submissions regarding the motion, the parties asked the Panel to make a ruling regarding the admissibility of two expert reports that the College and the Member intended to rely on in support of their respective positions in the motion. The parties made oral submissions on October 12, 2023, and additional submissions were made in writing between October 20, 2023, and November 3, 2023. On November 9, 2023, the Panel released a decision, without reasons, regarding the admissibility of expert evidence. The constitutional motion hearing continued on January 25, 2024, and February 28, 2024.
7At the conclusion of the motion hearing, the Panel reserved its decision. For the reasons that follow, the Panel dismisses the Member’s constitutional motion.
A. Publication Ban
8The Panel ordered a publication ban pursuant to subsection 32.1(3) of Act, which makes such an order mandatory. Accordingly, no person shall publish the identities of, or any information that could disclose the identities of Student 2, who was under 18 years of age at the time of the hearing, or her mother, who testified in this proceeding and whose identity could reveal the identity of Student 2.
9Additionally, a publication ban was ordered pursuant to subsection 32.1(4) of the Act at the request of College Counsel on behalf of Student 1, who was allegedly sexually abused or the subject of sexual misconduct. The publication ban also applies to Student 1’s mother, who also testified in this proceeding, so as to avoid identifying Student 1. Accordingly, no person shall publish the identities of, or any information that could disclose the identities of Student 1 or her mother.
B. THE MOTION
1The Member brought a motion for:
An order that the Act and in particular sections 30.2(1), 30.2(2), 30.03, and 33(4.1) of the Act, when read together with the definition of “sexual abuse” and “student” in section 1 of the Act, violate the fundamental right to freedom of expression guaranteed under section 2(b) of the Canadian Charter of Rights and Freedoms (“Charter”) in a manner that cannot be saved under section 1 of the Charter.
An order that in light of the above-noted Charter infringement, the impugned provisions are unconstitutional and as a result of section 52 of the Constitution Act, 1982, the Discipline Committee will treat the impugned provisions as having no force and effect.
Any further and other orders that counsel may advise and the Discipline Committee may permit.
C. admissibility of expert evidence
2Prior to making submissions regarding the motion, the parties asked the Panel to make a ruling regarding the admissibility of two expert reports that the College and the Member intended to rely on in support of their respective positions in the motion. On November 9, 2023, the Panel released a decision, without reasons, finding that both expert reports are admissible. What follows are the reasons for the Panel’s decision.
3Expert evidence is admissible on matters requiring specialized knowledge. The test to determine whether expert opinion is itself admissible was established in the cases of R. v. Mohan, 1994 CanLII 80 (SCC), [1994] 2 SCR 9 (“Mohan”) and R. v. Abbey, 2009 ONCA 624. In White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23, [2015] 2 SCR 182, the Supreme Court of Canada further clarified the analysis for the admissibility of expert evidence. This test is a two-step inquiry. The first step is the threshold requirement, where the Panel must determine whether the evidence is relevant, necessary, absence of any exclusionary rule, and whether the expert witness is properly qualified. If these threshold requirements are met, the second step is for the Panel to balance the potential risks of admitting the expert evidence with the benefits of admitting it in the particular case.
(1) Dr. Anthony Doob
4At the time of the hearing, Dr. Anthony N. Doob (“Dr. Doob”) was a Professor Emeritus of Criminology at the Centre for Criminology & Sociolegal Studies at the University of Toronto. The Member sought to qualify Dr. Doob as an expert in the following areas: 1) sentencing principles; 2) general deterrence; and 3) the effectiveness or ineffectiveness of mandatory minimum sentences at deterring misconduct.
(a) Member’s Submissions on Admissibility
5Member’s Counsel submitted that Dr. Doob’s expert evidence meets the threshold requirements of admissibility as outlined in the Mohan decision. The Member’s motion is to determine whether the provisions at issue prima facie violate section 2(b) freedom of expression of the Charter and if yes, is it justified under section 1 of the Charter in this circumstance. According to Member’s Counsel, Dr. Doob’s evidence relates to whether mandatory minimum sentences have a deterrent effect and is therefore relevant to the issues the Panel needs to determine in its section 1 analysis. Further, Member’s Counsel submitted that Dr. Doob’s evidence is necessary because his expertise falls outside the scope and experience of the Panel. Finally, Member’s Counsel submitted that Dr. Doob is properly qualified and presented his Curriculum Vitae (“CV”) (Exhibit 4). Member’s Counsel argued that Dr. Doob was a very accomplished academic and has a long list of publications on various issues involving sentencing, deterrence, and mandatory minimum penalties in criminal law. Dr. Doob has been previously qualified as an expert, he has provided expert opinion in several criminal cases and courts have relied on his studies (including the Supreme Court of Canada in R. v. Nur, 2015 SCC 15, [2015] 1 SCR 773) (“Nur”)).
6Finally, Member’s Counsel argued that admitting Dr. Doob’s evidence outweighs any prejudicial effects. Without his expert evidence, the Panel will not be able to properly assess the constitutional validity of a mandatory revocation without any evidence of its effectiveness or the effectiveness of alternative sentencing provisions.
(b) College’s Submissions on Admissibility
7College Counsel submitted that Dr. Doob’s evidence should not be admitted, because it is not relevant and is not of assistance to the determinations the Panel must make regarding the Member’s motion.
8College Counsel acknowledged Dr. Doob’s suitability and qualifications in criminal law, however, they submitted that the Discipline Committee is not a criminal court, and this motion is not a criminal issue. His research strictly deals with criminal law and criminology. College Counsel noted that none of his publications consider professional regulation. In addition to his experience being limited to the criminal context, Dr. Doob has never been a teacher of youth, he is not a member of the teaching profession, and he has never delivered programs for teacher candidates.
9Further, College Counsel argued that Dr. Doob has no knowledge of the Member’s case; his report makes no reference to the circumstances of this case, nor does it refer to the teaching profession generally.
(c) Ministry of the Attorney-General of Ontario Submissions on Admissibility
10The Ministry of the Attorney-General of Ontario (“Ontario”) deferred to the Panel’s decision on the admissibility of Dr. Doob’s expert report and testimony. They did not make any specific submissions on admissibility. However, they submitted that the Panel should not ascribe any weight to Dr. Doob’s evidence (if admissible) given the issues in this case deal with the safety of students.
(d) Panel’s Decision on Admissibility of Expert Report of Dr. Doob and Reasons for Decision
11The Panel found that the evidence and expert report of Dr. Doob (Exhibit 5) were admissible. Dr. Doob was permitted to testify in the areas of:
general deterrence, and
the effectiveness or ineffectiveness of mandatory minimum sentences at deterring misconduct.
12The Panel found that Dr. Doob’s evidence met the threshold requirements of admissibility. First, Dr. Doob’s evidence was relevant to the Member’s motion. His report speaks to mandatory minimum sentences, their deterrent effect, and whether they are effective. These are issues relevant to the Member’s position. Second, Dr. Doob’s evidence is necessary because his expertise in mandatory minimum sentences falls outside of the Panel’s scope and experience. Also, there is no exclusionary rule that prevents Dr. Doob from testifying. Finally, Dr. Doob is a properly qualified expert - he is an accomplished academic who has extensively published on various issues involving deterrence and mandatory minimum penalties in the criminal law context. Dr. Doob has been previously qualified as an expert in several criminal cases. Courts have relied on his opinion and his studies were referred to by the Supreme Court of Canada in Nur.
13Finally, the Panel finds that the probative value of Dr. Doob’s evidence outweighs any potential prejudicial effects. Member’s Counsel did not identify any prejudice from admitting Dr. Doob’s evidence (other than it might lengthen the proceedings) and the Panel can find no specific prejudice. Also, Independent Legal Counsel advised that the Panel has the authority to admit any evidence that is relevant to the subject matter of the proceeding as long as it is not unduly repetitious, pursuant to section 15 of the Statutory Powers Procedure Act, R.S.O. 1990, c. S. 22 (“SPPA”). The Panel relies on this authority in admitting the evidence of Dr. Doob in addition to the analysis above.
14The Panel notes that Member’s Counsel was seeking to qualify Dr. Doob as an expert in sentencing principles. However, the Panel finds that Dr. Doob’s evidence regarding that area did not meet the threshold requirement of necessity. The Panel has the experience and expertise to properly understand and apply sentencing principles. Sentencing principles are within the knowledge and scope of the Discipline Committee. Given this, the Panel did not hear any expert evidence from Dr. Doob in relation to sentencing principles.
(i) Evidence of Dr. Doob
15According to Dr. Doob, imposing mandatory minimum penalties does not change the likelihood that particular types of offenses will actually be committed. He testified that when society tries to control, reduce or eliminate crime by imposing harsh sentences, including mandatory minimum penalties, it is not successful. In general, his opinion is that mandatory minimum sentences do not have any general deterrent impact. When people believe that there is a reasonable likelihood of apprehension and punishment, and the likely penalty is serious enough, then that already has a deterring impact on individuals who might be inclined to commit certain types of offenses.
16Dr. Doob testified that his opinion is applicable to this case, even though his studies are based on the criminal justice system. He noted in his report that he does not see any logical reason why his conclusion would be any different in a setting such as teaching (Exhibit 5).
(2) Dr. Mary Louise Arnold
17At the time of the hearing, Dr. Mary Louise Arnold (“Dr. Arnold”) was an Associate Professor Emerita in the Department of Applied Psychology and Human Development at the University of Toronto/Ontario Institute for Studies in Education (OISE). The College sought to qualify Dr. Arnold as an expert in the following areas: 1) whether the developmental processes of school-aged children and adolescents affect their vulnerability to sexual abuse; 2) the position of authority that teachers hold over students, and how this may be perceived by school-aged children and adolescents; and 3) particular potential dangers and harms of sexual abuse, if any, arising in the context of teacher-student interactions.
(a) College’s Submissions on Admissibility
18College Counsel submitted that Dr. Arnold’s evidence meets the threshold requirements of admissibility. College Counsel submitted that Dr. Arnold’s report (Exhibit 6) is relevant and necessary because her report considers the general vulnerability of young people to sexual abuse through a scientific lens (for example, she covers the cognitive sense of self, emotional development, and sexuality) and whether vulnerable groups are entitled to protection is a key factor in determining the reasonableness of infringements on the Member’s section 2(b) Charter right. College Counsel further submitted that the Supreme Court of Canada in Mohan urged that “necessity” not be judged too strictly. College Counsel reviewed Dr. Arnold’s curriculum vitae (Exhibit 2) with the Panel and submitted that Dr. Arnold is a properly qualified expert. College Counsel noted that Dr. Arnold has had a long career as an academic and was also a teacher; she has conducted a great deal of research on psychological development in young people; and she has taught this subject to teachers. Dr. Arnold has also reviewed the Member’s case, which forms the basis for her opinion.
(b) Member’s Submissions on Admissibility
19Member’s Counsel submitted that Dr. Arnold does not meet the threshold requirements for admissibility. The question at issue is whether mandatory revocation is rationally connected to the government’s goal of preventing sexual abuse, and further, whether there are other, less restrictive methods to achieve the same goal. Dr. Arnold does not speak to these issues. In particular, she offers no thoughts on how mandatory revocation is rationally connected to a reduction of sexual abuse. Given this, Member’s Counsel submitted that Dr. Arnold’s evidence is not relevant to the Member’s constitutional motion. Further, Member’s Counsel submitted that Dr. Arnold’s evidence is not necessary because her proposed evidence will speak about issues that have already been conceded by the Member (i.e., that all forms of sexual abuse is harmful, vulnerability of students and that teachers hold a unique position of authority). Member’s Counsel argued that Dr. Arnold is not a properly qualified expert because she had been retired for nearly a decade, has not published research in 13 years and has no expertise on sentencing principles, deterrence and mandatory minimum penalties. Finally, Member’s Counsel submitted that admitting Dr. Arnold’s evidence will cause prejudice to the Member as it will unduly lengthen the proceedings and is irrelevant to the issues of this motion.
(c) Ministry of the Attorney-General Submissions on Admissibility
20Counsel for Ontario submitted that Dr. Arnold’s evidence is relevant and necessary for the Panel’s determination of whether the mandatory revocation provisions are a reasonable limitation of the Member’s right to freedom of expression under section 1 of the Charter. Counsel for Ontario submitted that Dr. Arnold’s evidence is relevant and necessary to all three stages of the section 1 Charter analysis. In their view, Dr. Arnold’s evidence demonstrates that the provisions requiring mandatory revocations for findings of sexual abuse are rationally connected to the pressing and substantial objective of ensuring the safety of students, considering their vulnerability and the harm that results from teachers sexually abusing them.
(d) Panel’s Decision on Admissibility of Expert Report of Dr. Arnold and Reasons for Decision
21The Panel found that the expert report of Dr. Arnold (Exhibit 6) was admissible and that she was properly qualified, and therefore permitted, to testify in the area of:
- the particular potential dangers and harms of sexual abuse, if any, arising in the context of teacher-student interactions.
22The Panel finds that Dr. Arnold’s evidence on the particular potential dangers and harms of sexual abuse arising in the context of teacher-student interactions is relevant to the section 1 Charter analysis regarding minimal impairments to Charter rights. Her evidence is relevant to assessing the College’s position that the potential harms that children can suffer from sexual abuse by teachers are so severe that nothing short of revocation is appropriate to ensure student safety. Dr. Arnold’s evidence is also necessary for the Panel’s consideration of the minimal impairment determination because her expertise focuses on psychological development of young people and the particular impacts sexual abuse by a teacher can have on children’s well-being and development. The Panel finds that there is no exclusionary rule that prevents Dr. Arnold’s evidence.
23The Panel also finds that Dr. Arnold is a properly qualified expert. Dr. Arnold is an accomplished academic and has extensive knowledge of the psychological development of young people. She has published her research and has provided expert reports and testimony on boundary violation issues. She has also worked as a professional consultant regarding teacher-student interactions and boundary violations. Further, she has directly worked with teachers by providing coursework on boundary violations and teacher-student relationships.
24Finally, the Panel finds that admitting Dr. Arnold as an expert is beneficial and outweighs any prejudicial effect. Dr. Arnold’s opinion was fair and objective, and she formed her opinion based on a review of the Member’s case. Also, her evidence was not unduly repetitious (section 15 of SPPA).
25The Panel understands that College Counsel was also seeking to qualify Dr. Arnold in the areas of: 1) whether the developmental processes of school-aged children and adolescents affect their vulnerability to sexual abuse and; 2) the position of authority that teachers hold over students, and how this may be perceived by school-aged children and adolescents. However, the Panel finds that her evidence regarding those areas is not necessary. It is a common understanding that young people, such as students are vulnerable and that teachers hold a position of trust towards students. Also, the Member has agreed that children and adolescents are particularly vulnerable to sexual abuse, more so than adults. These two principles are also fairly entrenched in the Ontario College of Teachers’ Discipline Committee jurisprudence.
(ii) Dr. Arnold’s evidence
26According to Dr. Arnold, a student victim of sexual abuse by a teacher can suffer quite extreme harm. The level of harm experienced by students will depend on the student’s maturity and the form of sexual abuse that they are exposed to. She testified that the types of harms resulting from sexual remarks by a teacher can include a combination of psychological harms (e.g., to the student’s sense of self and security) and emotional harms. She also opined that any and all forms of sexual abuse by teachers are harmful to students’ well-being. Finally, according to Dr. Arnold adopting a zero-tolerance policy towards all forms of sexual abuse is the best way to protect students and deter teachers from engaging in that conduct.
D. SUBMISSIONS OF THE MEMBER on CHARTER MOTION
27The Member argues that the impugned provisions (i.e., 30.2(1), 30.2(2), 30.3, and 33(4.1) of the Act) when read together with the definition of “sexual abuse” and “student” at section 1 of the Act are unconstitutional. This is because the Act requires mandatory revocation in all cases of sexual abuse, including for remarks that are not explicitly sexual. Member’s Counsel submitted that the Member’s section 2(b) right to freedom of expression has been violated, and such an infringement is overbroad and not justifiable under section 1 of the Charter.
28Member’s Counsel outlined a two-step test for determining whether section 2(b) of the Charter has been infringed by the mandatory revocation provisions. According to Member’s Counsel, the first step involves determining whether the activity in question falls within the protection of 2(b) of the Charter. If it does, the Panel can move to second step, which involves an assessment of whether the purpose or effect of the impugned legislation is to restrict freedom of expression: see Irwin Toy Ltd v. Quebec (AG), 1998 CanLII 829 (SCC), [1998] 1 SCR 927, (“Irwin Toy”). Member’s Counsel submitted that the Supreme Court of Canada in Irwin Toy has made it clear that this is a low threshold to establish, and that the test is made out in this instance. For the first part of the test, Member’s Counsel submitted that the Member’s messages to Student 1 have expressive content and therefore fall under section 2(b) of the Charter. For the second part of the test, Member’s Counsel argued that the purpose and intent of the mandatory revocation provisions in the Act are to prohibit (among other forms of sexual abuse) sexual remarks from teachers to students, and therefore the Act restricts freedom of expression.
29Member’s Counsel then explained Charter violations are only allowed if justified by section 1 of the Charter. Member’s Counsel explained that the Panel is required to conduct the section 1 Charter analysis established in R. v. Oakes, 1986 CanLII 46 (SCC), [1986] 1 SCR 103 (“Oakes”) which sets out that the party attempting to defend the infringement must demonstrate the following:
(a) The objective of the impugned provisions is sufficiently pressing and substantial to warrant overriding a constitutionally protected right or freedom; and,
(b) That the impairment of the right is proportional. The inquiry as to proportionality attempts to guide the balancing of individual and group interests protected in section 1, and is broken down into the following three segments:
(i) The means chosen to implement the objective are rationally connected to the objective;
(ii) The means chosen impair the Charter right “as little as possible:” and
(iii) The deleterious effects of the limit on the right are not disproportionate to the beneficial effects of achieving the objective.
30Member’s Counsel then applied the Oakes test, first submitting that the Member does not dispute that deterring all forms of sexual abuse in order to protect children is a pressing and substantial objective.
31In the second part of the analysis, Member’s Counsel then argued that the impugned provisions are not justified because they are not proportionate. Member’s Counsel argued that mandatory revocation is not rationally connected to the objective of reducing instances of sexual abuse. Member’s Counsel submitted that the College and Ontario did not provide evidence that mandatory revocation has a deterrent effect on Members and that the only evidence on this point was from Dr. Doob who said there is no rational connection between mandatory revocation and deterrence.
32Further, Member’s Counsel argued that the impugned provisions are not minimally impairing. Member’s Counsel submitted that the mandatory revocation is a serious and draconian measure. Member’s Counsel also submitted that the impugned provisions are applied broadly, not carefully tailored/crafted to the legislative objectives or to the particular facts of a member’s case, and therefore is not minimally impairing.
33Finally, Member’s Counsel submitted that the deleterious effects of the impugned provisions outweigh any speculative benefits they may have of deterring sexual abuse. The impugned provisions prevent members of the profession from exercising their freedom of expression and prohibit them from practicing the profession even if the misconduct at issue is minor, not explicitly sexual, unintentional, and regardless of whether there was any harm to the students.
E. COLLEGE COUNSEL’s submissions on constitutional motion
34College Counsel submitted that being a professional (such as a teacher) is a privilege and not a right and that privilege is subject to restrictions (Mussani v. College of physicians and surgeons of Ontario, 2003 CanLII 45308 (ON SCDC) (“Mussani”). College Counsel affirmed that the Panel should be guided by Irwin Toy. College Counsel also noted that the Supreme Court of Canada has recognized an exception to the general principle that all expressive content is protected under section 2(b) of the Charter, namely: if the method or location of the expression undermines the values that underlie the guarantee (Montreal (City) v. 2952-1366 Quebec Inc., 2005 SCC 62, [2005] 3 SCR 141 (“Montreal (City)”)). College Counsel submitted that the expression at issue is not protected under section. 2(b) of the Charter. Sexually abusive expression is inherently harmful and such sexual abuse of a student by a teacher is the opposite of what section 2(b) of the Charter is meant to protect.
35Further, College Counsel argued that if the mandatory revocation for sexual abuse is found to result in an infringement of a section 2(b) right, then it is justified under section 1 of the Charter. College Counsel also reviewed the Oakes analysis and noted that the parties agree that protecting students is a pressing and substantial objective.
36Further, College Counsel relied on the Affidavit of Richard Lewko, affirmed July 12, 2023 and the Hansard Transcripts and argued that mandatory revocation is rationally connected to the objective of protecting students because it ensures that members found guilty of sexual abuse of students are no longer able to teach and it sends a strong message of denunciation by the profession.
37With respect to minimal impairment, College Counsel submitted that rather than focussing on impairing the right as little as possible, legislators are entitled to focus on protecting vulnerable groups without having to opt for the least ambitious means of doing so (Irwin Toy). College Counsel argued that legislators are given substantial latitude for the protection of vulnerable groups and relied on Dr. Arnold’s evidence regarding the vulnerability of school-age students. They also relied on the Ontario Court of Appeal decision Tanase v. College of Dental Hygienists of Ontario, 2021 ONCA 482 (“Tanase”) and argued that a “bright line” policy to meet the objective of preventing sexual abuse of vulnerable population is necessary and preferable.
38Finally, in assessing the overall proportionality, College Counsel submitted that while revoking a member’s Certificate is a serious penalty, it is proportionate to the serious harm that a student suffers at the hands of teachers who sexually abuse them.
F. MINISTRY OF the ATTORNEY-GENERAL’S SUBMISSIONS ON MOTION
39Counsel for Ontario submitted that sections 30.2(1), 30.2(2), 30.3 and 33(4.1) of the Act are constitutionally valid and that the Member’s motion should be dismissed. Counsel for Ontario submitted that if the mandatory revocations are found to violate the Member’s right to freedom of expression, then such infringement is clearly justified by section 1 of the Charter.
40Counsel for Ontario argued that context is a key consideration in the section 1 analysis: Yazdanfar v. College of Physicians and Surgeons of Ontario, 2013 ONSC 6420 at paragraph 111 (“Yazdanfar”). They outlined four contextual factors that the Panel should keep in mind when determining if the mandatory revocation provisions are constitutionally valid: 1) the importance of professional regulation and the fact that there is no right to practice as a teacher free from regulation; 2) the low value of the speech at issue which does not meaningfully advance the values meant to be protected by section 2(b) of the Charter; 3) the vulnerability of students in relation to teachers and; 4) the fact that the Panel is entitled to rely on the best evidence available, along with logic and common sense, when analyzing the harm sought to be avoided by the provisions.
41Further, Counsel for Ontario then went through the section 1 analysis. They submitted that the safety of students across Ontario is a pressing and substantial objective, and that there is a rational connection between removing members who have been found guilty of sexual abuse from the profession and the protection of students. Counsel for Ontario also submitted the mandatory penalties are minimally impairing, noting members who make remarks of a sexual nature to students have an opportunity to apply for reinstatement of their certificate after five years (which is not possible when a member is found to have engaged in other forms of sexual abuse). Finally, Counsel for Ontario argued that salutary benefits of removing members who have engaged in sexual abuse outweigh any deleterious effects on the Member given that the consequence of losing a teaching license is a purely economic interest, which is not protected by the Charter.
G. DECISION
42Having considered the submissions of the parties, their facta, motion records and books of authorities, as well as the relevant jurisprudence and legislation, the Panel dismisses the Member’s motion.
H. REASONS FOR DECISION
(1) Do the mandatory provisions in the Act violate the Member’s section 2(b) Charter right?
43The parties agree and the Panel accepts that it is required to apply the Irwin Toy analysis to determine whether the Member’s section 2(b) right to freedom of expression has been infringed by the mandatory revocation provisions set out in sections 30.2(1), 30.2(2), 30.3 and 33(4.1) of the Act. Having conducted that analysis, the Panel finds that the mandatory revocation provisions infringe on the Member’s freedom of expression protected by section 2(b) of the Charter.
(i) Expressive content protected by section 2(b) of the Charter
44The first part of the Irwin Toy test requires the Panel to determine whether the activity at issue has expressive content, thereby bringing it within the protection of section 2(b) of the Charter. The Panel notes that this is a very low threshold. The Panel notes that the Supreme Court of Canada in R v. Keegstra, 1990 CanLII 24 (SCC), [1990] 3 S.C.R. 697 (“Keegstra”) has defined freedom of expression very broadly, and even unpopular, untruthful, distasteful, offensive, and repugnant communications are given constitutional protection (Keegstra at paragraph 40). At the same time, there is a limit to this protection. The Supreme Court of Canada has held that if the method or location of the expression undermines the values that underlie the constitutional guarantee (those being democratic discourse, truth finding and self-fulfillment) then it should be excluded from protection under section 2(b) of the Charter - including, violent expression: Montreal (City) at paragraphs 72 and 74.
45The activity in issue are the electronic messages the Member sent to Student 1 that the Panel found to be remarks of a sexual nature, and therefore sexual abuse of Student 1: Ontario College of Teachers v. Bujacz, 2023 ONOCT 12. Those statements included:
“ur bf must love that ur smart and normal”
“u make me smile”
“Awake or Netflix talk play???”
“How's ur nite u have some high needs lol”
“How can one b happy if they don't know ur a beautiful young woman with a plan u need to know what u would waste ur time for in a man there are many great ones out there”
46These messages have expressive content. Further, as repugnant as they are, the Panel finds that they are still afforded protection under section 2(b). College Counsel submitted that sexual abuse of a student by a teacher is the opposite of the expression which section 2(b) is meant to protect as it harms a vulnerable group. However, the Panel notes that Ontario Court of Appeal has held that the violence exception to the scope of freedom of expression is limited and does not encompass “emotionally violent” expression: Bracken v. Niagara Parks Police, 2018 ONCA 261 at paragraphs 37-38. As much as the remarks at issue had a harmful effect on Student 1, they do not constitute “violent expression” or “threats of violence” and are therefore protected under section 2(b) of the Charter.
(ii) Purpose or effect of legislation restricting Charter right
47The second consideration in the Irwin Toy analysis is the law or government action at issue, in purpose or effect, restrict freedom of expression. The Panel finds that the mandatory revocation provisions in the Act when read together with the definition of “sexual abuse” in section 1 of the Act are intended to protect vulnerable students, and their purpose restricts the Member’s right to freedom of expression.
48Subsections 30.2(1) and (2) of the Act require mandatory revocation if a member is found guilty of sexual abuse. This includes sexual abuse consisting of “behaviour or remarks of a sexual nature by the member towards the student” (clause (c) of the definition of “sexual abuse” in section 1 of the Act). Additionally, subsection 30.3 of the Act allows for retroactive revocation of members certificates for misconduct consisting of sexual abuse. Finally, section 33(4.1) provides that members whose certificates are revoked for certain forms of misconduct, including behaviour or remarks of a sexual nature towards a student, cannot reapply for reinstatement for a period of at least five years after the revocation. When reading them together, these provisions restrict teachers’ freedom of expression by prohibiting them from making remarks of a sexual nature to students and by revoking their certificates of registration when they are found to have made remarks of a sexual nature to a student. The Panel notes (and will go into greater detail in section (e) below) that the purpose of the mandatory revocation provisions is to protect vulnerable students. The parties are also in agreement that the purpose of the Act is the protection of students. Therefore, the Act, in respect of its purpose to protect vulnerable students, restricts members’ freedom of expression.
49Given that the Panel has determined a section 2(b) Charter infringement exists, the Panel will now consider whether the infringement is justified under section 1 of the Charter.
(2) Is the Member’s section 2(b) infringement justified under section 1 of the Charter?
50The Charter recognizes that even in a democracy, rights are not absolute. In fact, section 1 of the Charter guarantees rights and freedoms “subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society”. The Panel is required to apply the Oakes framework to determine whether the mandatory revocation provisions are “reasonable limits” to the Member’s freedom of expression under section 1 Charter. The Panel finds that infringement to the Member’s section 2(b) right is justified under section 1 of the Charter. The Panel also agrees with Counsel for Ontario that the section 1 analysis is a contextual approach and has considered the contextual factors (mentioned in Ontario’s submissions) in their analysis below.
(e) Is the legislative goal of the mandatory revocation provisions pressing and substantial?
51The first part of the Oakes analysis is to consider whether: “It is necessary, at a minimum, that an objective relate to concerns which are pressing and substantial in a free and democratic society before it can be characterized as sufficiently important” (Oakes at paragraph 69). For the reasons below, the Panel is satisfied that the primary legislative goal of the mandatory provisions is protecting children from harm and ensuring students’ safety in schools and that these objectives are sufficiently pressing and substantial to override the Member’s freedom of expression. The Panel finds that the mandatory revocations provisions also have the pressing and substantial sentencing objective of denunciation of all forms sexual abuse involving a student.
52The Panel notes that all parties have acknowledged that the purpose of the mandatory revocation provisions is the protection of students, and that this is a pressing and substantial objective. Although Member’s Counsel argued that the provisions’ purpose is to deter sexual abuse in order to protect students, they agreed that protecting students is a pressing and substantial objective. The Panel places great weight on this but also comes to this conclusion considering the evidence provided in the College’s motion record.
53In particular, the Panel has carefully reviewed the Hansard transcripts (Official Report of Debates) (College’s motion record, Tab 2). The Hansard transcripts provide context to the introduction of The Safe and Supportive Classroom Act, 2018 (“Bill 48”) which expanded the mandatory revocation provisions in the Act to findings of sexual abuse based on behaviour or remarks of a sexual nature by a member towards a student. The Panel finds that the Hansard transcripts demonstrate that Legislature’s goal for the mandatory revocation provisions in the Act was not just general deterrence, but to strengthen the protection of students and ensure their safety across Ontario schools. The Panel notes in the Hansard transcripts, the Minister of Education clearly stated that the government has “zero tolerance for sexual abuse of Ontario students and children” and that they are taking action to ensure that schools are safe learning environments.1 The Panel also considered the Affidavit of Richard Lewko, affirmed July 12, 2023 (College’s motion record, Tab 1). Mr. Lewko was Director of Corporate and Council Services for the College from 1996 until his retirement in December 2022. In his affidavit, Mr. Lewko affirmed that as Director of Corporate and Council Services, he was involved in efforts to advance the College’s public interest mandate, which includes the protection of students from sexual abuse. Further, Mr. Lewko explained that the College strongly supported the introduction of the mandatory revocation provisions for behaviour or remarks constituting sexual abuse and that the College had made written and oral submissions to Legislature in support of Bill 48. Finally, Mr. Lewko noted that sexual abuse of a student has long been recognized as a most serious and obvious breach of trust for a teacher and is a high priority for the College. He noted that allegations of sexual abuse continued with a frequency that required the College to maintain deterrence as a top priority, and outlined the efforts the College has made for more than 20 years to deter sexual abuse, including by issuing Professional Advisories. The Panel recognizes that deterrence is not the only legislative goal of the provisions at issue. While the parties did not stress denunciation with respect to this part of the Oakes test, the Panel finds that denunciation is another goal advanced by the mandatory revocation. Mandatory revocation as a sentencing principle, denounces a members’ misconduct to the public (to maintain confidence in the profession) and also to the membership. Mandatory revocation, including for when a member makes remarks of a sexual nature to a student, sends a strong message that the profession has zero tolerance for all forms of sexual abuse of students and that engaging in such conduct will be met with a serious penalty.
(f) Is there proportionality between the objective and the means/methods used to achieve the objective?
54The Panel has conducted the proportionality analysis required by the Oakes test and finds that the mandatory revocation provisions are an appropriate limitation on the Member’s right to freedom of expression.
(i) Rational connection
55In the first stage of the proportionality analysis, the Panel needs to consider whether the limit on the Member’s freedom of expression is rationally connected to the objectives of the mandatory revocation provisions. As outlined by the Supreme Court of Canada, there must be a causal link between the provisions and their pressing and substantial objective: RJR-MacDonald Inc. v. Canada (Attorney General), 1995 CanLII 64 (SCC), [1995] 3 SCR 199 at paragraph 153. The Panel finds that there is a rational connection between removing teachers who have sexually abused students from the profession and the Legislature’s goal of protecting vulnerable students.
56The Panel disagrees with Member’s Counsel that analysis at this stage is whether the mandatory revocation provisions are rationally connected with the objective of reducing instances of sexual abuse and that the Panel should rely on the evidence of Dr. Doob for this part of the Oakes test.
57While the Panel recognizes that deterrence is one of the legislative’s goal of the provisions at issue, the pressing and substantial objective at hand is the protection of vulnerable students. Therefore, the Panel did not find Dr. Doob’s evidence was very helpful. Member’s Counsel presented Dr. Doob’s evidence to demonstrate that mandatory minimum sentences do not work to deter misconduct. Although the Panel appreciates Dr. Doob’s evidence and his suitability in criminal law, Dr. Doob did not provide evidence regarding the regulatory setting and the Panel does not find that Dr. Doob’s evidence is applicable to regulatory bodies. The Panel is not determining whether the mandatory revocation provisions deter criminal conduct or reoffending by criminals. The Panel is considering revocation in the context of a regulatory disciplinary body that is mandated to promoting the protection of the public.
58The Panel also disagrees with Member’s Counsel that the College and Ontario did not provide evidence on the rational connection test. The College provided evidence, through Dr. Arnold, as to the harmful impacts sexual abuse has on students and therefore the need for a zero-tolerance policy on all forms of sexual abuse. The Panel accepts Dr. Arnold’s evidence that any and all forms of sexual abuse including sexual remarks are harmful to students, and can lead to profound and lasting impacts on students’ health, behaviour, academics, and psycho-emotional well-being and thus the need for a zero-tolerance policy towards all forms of sexual abuse to ensure student safety (Exhibit 6, page 13).
59Further, the Panel accepts the submissions by Counsel for Ontario, that it does not need scientific evidence proving that that the mandatory revocation provisions work to deter sexual abuse. The Supreme Court of Canada has held that the scientific proof of a causal link is not required and that a court may rely on common sense, logic and a reasoned apprehension of harm during the justification analysis: see Yazdanfar (at paragraph 115) and Harper v. Canada (Attorney General), 2004 SCC 33, [2004] 1 SCR 827 at paragraphs 77 and 78 (“Harper”).
60The Panel is satisfied that common sense and logic establish that there is a strong rational connection between the imposition of mandatory revocation (i.e., removing teachers who engage in sexual abuse) and the goal of protecting students.
61The Panel has considered the college’s public protection mandate set out in section 3(2) of the Act, and Mr. Lewko’s affidavit evidence that deterring sexual abuse of students by teachers is a public interest priority for the College. The mandatory revocation provisions establish a “bright-line rule” against all types of sexual abuse, including remarks of a sexual nature to students. The provisions protect students by removing the offending teacher from the classroom and prevents the re-occurrence of sexual abuse by the same teacher (for at least five years). Given the seriousness of the misconduct and the harmful effects sexual abuse can have on students, as demonstrated by Dr. Arnold’s evidence, the Panel is of the view that anything less than mandatory revocation for a finding of sexual abuse of students would fail to properly denounce sexual abuse and fail to meet the College’s legislative objective of protecting students.
(ii) Minimal impairment
62In the second stage of the proportionality analysis, the Panel must consider whether the mandatory revocation provisions impair the Member’s right no more than is reasonably necessary to accomplish the objective of protecting students. The Panel finds this requirement is met.
63Member’s Counsel argued that imposing mandatory revocation for all sexual remarks, explicit or not and intentional or not, is overbroad and harshly punishes some forms of expression that are not necessarily harmful. However, the Panel considered Dr. Arnold’s report which outlined the various psycho-emotional, health, behavioural, and academic effects sexual abuse by a teacher can have on students. (Exhibit 6). The Panel accepts Dr. Arnold’s evidence that “most students who experience any degree of sexual abuse in the context of teacher-student interactions can suffer a range of effects” (Exhibit 6 at page 12). The Panel accepts her opinion that even a minor incident by a trusted adult can have a profound and lasting impact on the youth, and that when a teacher directs sexual remarks to a student, “the trust placed in the teacher is violated through the exploitive communication” which results in harm for the student (Exhibit 6 at page 14). The Panel agrees with Dr. Arnold that any and all forms of sexual abuse (including sexual remarks) are harmful and can negatively impact students’ well-being. The evidence regarding the harmful effects of sexual abuse on students demonstrates to the Panel, the appropriateness of mandatory revocation provisions for all forms of sexual abuse.
64The Panel notes that the Supreme Court of Canada has stated that Legislature is not required to choose the least onerous method for protecting vulnerable groups: see Irwin Toy. The Panel agrees with Ontario’s position that substantial latitude should be given to legislatures when it comes to protecting vulnerable groups, like students (Irwin Toy).
65Member’s Counsel argues that it would be minimally impairing to leave the penalty for sexual abuse at the discretion of the Discipline Committee. The approach suggested by the Member was the regime that existed prior to December 5, 2016. However, the Legislature deemed the protection of students as a top priority and changed the Act (Hansard Transcripts, College’s Motion Record, Tab 2B, page 2171), to make mandatory revocation the means for ensuring the protection of students from a teacher who has engaged in any form of sexual abuse of students. This demonstrates that Legislature felt that leaving the issue of penalty for findings of sexual abuse to the discretion of Discipline Committees would not be sufficient to protect students. The Legislature determined it was appropriate to take a “bright line” approach to protect students from harm resulting from sexual abuse by a teacher and to provide clear guidance the profession.
66The Ontario Court of Appeal has upheld a ‘bright line’ approach prohibiting sexual abuse in other regulated professions: see Mussani and Tanase. The professionals in Mussani and Tanase challenged mandatory revocation on the basis of section 7 of the Charter, which guarantees the right to life, liberty, and security of person, and also section 12, which guarantees the right to not be subjected to cruel or unusual punishment. They were unsuccessful in their challenges. The Court of Appeal wrote at paragraph 7 of Tanase:
Revocation of the appellant’s certificate of registration is an extremely serious penalty, but it is not absurd. It follows from the Ontario Legislature’s decision that sexual abuse in the regulated health professions is better prevented by establishing a bright-line rule prohibiting sexual relationships – an approach that provides clear guidance to those governed by the rule – than by a standard pursuant to which the nature and quality of sexual relationships between practitioners and patients would have to be evaluated to determine whether discipline was warranted in particular circumstances. This decision to adopt this rule was open to the Legislature and must be respected by this court. It does not violate the Charter and there is no basis for this court to frustrate or interfere with its operation.
67The Panel acknowledges that the Member is not making a section 7 or section 12 challenge. However, the Panel finds that the Court of Appeal’s reasoning regarding membership in a profession as a privilege and not a right is applicable to this motion. As the Court of Appeal notes in Mussani, “there is no constitutionally protected right to practise a profession” and the mandatory revocation of a professional’s certificate of registration for sexual abuse infringes an economic interest that is not protected by the Charter (Mussani, see paragraph 43).
68Further, the professional regulation context is different than the criminal context. In criminal law, the Charter challenges often relate to liberty interests, such as imprisonment, which is completely different than this context. The consequences in a regulated profession are not the same as in a criminal matter. Membership in a regulated profession comes with certain restrictions. Part of the social contract of being a member of a regulated profession is the obligation to uphold the public interest ahead of their own interests, and in this case, the protection of students.
69There are sufficient procedural safeguards to which a member is entitled before facing mandatory revocation of their Certificate. As noted by College Counsel in their factum, there are many steps that ensure procedural fairness to members accused of sexual abuse before a finding is made, such as Board investigations, College investigations, opportunity to review and respond to allegations at the Investigation Committee stage. Even if the matter is referred to the Discipline Committee, a member has a full right to defend the allegations, to call evidence and to cross-examine the College’s witnesses and make submissions. The College also has the burden of proof at discipline. It is only if the Discipline Committee is satisfied on a balance of probabilities that a member may be found to have engaged in professional misconduct and made subject to penalties as a result. What is considered professional misconduct, and what penalties may be ordered against members may change over time. In the Panel’s view, strict penalties for sexual abuse of students are a reasonable limit that the Member accepted when he chose to become a teacher.
70Finally, the Panel rejects Member’s Counsels’ argument that the mandatory revocation provisions are overly broad. In fact, there is an important distinction between a member who is revoked for a finding of behaviour or remarks of a sexual nature and a member who is guilty of another form of sexual abuse. Those who engage in behaviour or remarks of a sexual nature towards a student have the ability to apply for re-instatement after five years, which is not a possibility for members who engaged in other forms of sexual abuse. The revocation is not necessarily permanent is, in the Panel’s view, a reasonable measure and minimally impairing.
(iii) Overall proportionality (Deleterious effects vs. salutary benefits)
71In the final stage of the proportionality analysis, the Panel needs to consider whether the damaging effects of the mandatory revocation provisions outweigh the beneficial effects of the legislation’s objectives. The Panel finds that the benefits of removing teachers from the profession who have engaged in sexual abuse of students to ensure that students are protected and have a safe learning environment significantly outweigh any damaging effects on members’ right to freedom of expression.
72The objective of the mandatory revocation provisions is protecting students from the harmful effects of sexual abuse. The protection of vulnerable people is an important objective that should be given great weight.
73On the other hand, the Member’s expression at issue involves remarks of a sexual nature to a student. The Ontario Court of Appeal has recognized that certain types of expression, namely those that “do[…] not meaningfully advance any of the genuine human goods associated with freedom of expression” carry very little weight under the section 1 analysis: Bracken at paragraph 81. The human goods associated with freedom of expression are identified in the Supreme Court of Canada decision Saskatchewan (Human Rights Commission) v. Whatcott, 2013 SCC 11, [2013] 1 SCR 467 (“Whatcott”). They are noted as “the quest for truth”, the “promotion of individual self-development” or the “protection and fostering of a vibrant democracy” (Whatcott, see paragraphs 112-113). Remarks of a sexual nature towards students do not advance any of the above-noted human goods associated with freedom of expression and the Panel agrees with Counsel for Ontario’s submissions that there is no societal value in teachers making sexual remarks towards students and therefore gives it low value.
74Further, the mandatory revocation provisions restrict a member’s ability to make sexual remarks to students but not other types of expression. There is no chilling effect on members’ freedom of expression generally (see Bracken at paragraph 84). The Member can apply for reinstatement five years from the date of revocation. The Panel is mindful that losing a teaching certificate is the most serious penalty, it is, however, for one of the most egregious violations of trust. As a regulated professional entrusted with the safety of students, the Member is subject to the rules and standards for fulfilling that objective. If being a regulated professional is a choice, it is a privilege and not a right.
75For all of the reasons noted above, the Panel finds that the infringement to the Member’s section 2(b) right is justified per section 1 of the Charter.
76The Member’s motion is therefore dismissed.
Date: March 3, 2025
Stéphane Vallée, OCT Chair, Discipline Panel
Yasser Leheta, OCT Member, Discipline Panel
Kimberley Westfall-Connor Member, Discipline Panel