Court File and Parties
CITATION: Timothy Edward Bradley v. Ontario College of Teachers, 2021 ONSC 2303
DIVISIONAL COURT FILE NO.: 504/19
DATE: 20210326
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
D.L. Corbett, Doyle and Favreau JJ.
BETWEEN:
Timothy Edward Bradley
Appellant
– and –
Ontario College of Teachers
Respondent
Jerry Raso, for the Appellant
Christine Wadsworth, for the Respondent
HEARD by videoconference: July 9, 2020
Reasons for Judgment
[1] On July 9, 2020, the panel granted an order on consent allowing the appeal with reasons to follow. These are the reasons.
Background
[2] At the relevant time, the appellant, Timothy Edward Bradley, was a teacher with the London District School Board.
[3] The appellant was the subject of disciplinary proceedings before the Discipline Committee of the Ontario College of Teachers. The allegations against the appellant were that he made harassing comments and engaged in harassing behaviour toward a female teaching candidate who was assigned to work with the appellant as part of her practicum.
[4] The hearing before the Discipline Committee was held on June 24, 2019. At the hearing, the parties presented an agreed statement of fact and a joint penalty submission. The joint penalty submission included various terms, including a proposed two-month suspension of the appellant’s Certificate of Qualification and Registration. The suspension was to commence immediately after the hearing which, given the date of the hearing, meant that the suspension would take place over the summer months.
[5] At the hearing, the panel expressed concern over the proposal that the suspension take place over the summer months and asked counsel for the parties to make additional submissions on the issue. Counsel made submissions justifying the proposal that the two-month suspension take place over the summer, including the following arguments:
a. Suspensions are often served in the summer, including in a similar case: Ontario College of Teachers v. Bergin, 2018 ONCT 29;
b. Regardless of the timing, the suspension will be made public and become part of the appellant’s permanent record, thereby still having a deterrent effect;
c. The Panel can accept the joint penalty submission while still expressing strong views about the inappropriateness of the appellant’s conduct;
d. The appellant had been teaching for a number of years since the events giving rise to discipline without further incidents, which is a mitigating factor;
e. A suspension during the school year would be disruptive to the appellant’s students; and
f. The appellant has shown remorse, fully cooperated with the investigation and voluntarily taken a course on professional boundaries.
[6] In a decision released on August 13, 2019, the Panel rejected the parties’ submission that the suspension should take place over the summer and instead directed that the appellant was to start serving his suspension on September 3, 2019. In its reasons, the Panel stated that accepting the joint submission on penalty “would bring the administration of the discipline process into disrepute or be otherwise contrary to the public interest”. The Discipline Committee gave two reasons for rejecting the joint submission:
(1) Accepting the joint submission would cause the public to lose confidence in the College’s disciplinary process; and (2) the penalty objectives of specific deterrence, general deterrence, rehabilitation, and protection of the public interest would not be sufficiently met if the Member were allowed to serve his suspension during the summer.
Standard of review
[7] Section 35(4) of the Ontario College of Teacher’s Act, 1996, S.O. 1996, c.12, gives a party to a hearing before the Disciplinary Committee a right of appeal to the Divisional Court on a question of law or fact or both. Accordingly, given the statutory right of appeal, the appellate standards of review apply. Errors of law are reviewed on a standard of correctness and errors of fact or mixed fact and law are reviewed on a standard of palpable and overriding error.
Analysis
[8] The only issue on the appeal is whether the Discipline Committee erred in rejecting the parties’ joint submission on penalty. We agree with the parties that the Discipline Committee made an error in its application of the principles to be applied when a disciplinary body decides to reject a joint submission on penalty.
[9] The governing authority on this issue is the Supreme Court of Canada’s decision in R. Anthony-Cook, 2016 SCC 43. While decided in the criminal law context, Anthony-Cook has been applied by disciplinary bodies in Ontario, including by the Discipline Committee of the College of Teachers: Ontario College of Teachers v. Sadaka, 2019 ONOCT 60. See also: Law Society of Upper Canada v. Archambault, 2017 ONLSTH 86, para. 14; Ontario (College Pharmacists) v. Mikhael, 2017 ONCPDC 25, para. 28; Ontario (College of Physicians and Surgeons of Ontario) v. Cameron, 2018 ONCPSD 25; Ontario (College of Massage Therapists of Ontario) v. Tang, 2018 ONCMTO 26; and College of Nurses of Ontario v. Lopes.
[10] In Anthony-Cook, at para. 25, the Court emphasized the importance of joint submissions on sentence:
It is an accepted and entirely desirable practice for Crown and defence counsel to agree to a joint submission on sentence in exchange for a plea of guilty. Agreements of this nature are commonplace and vitally important to the well-being of our criminal justice system, as well as our justice system at large. Generally, such agreements are unexceptional and they are readily approved by trial judges without any difficulty. Occasionally, however, a joint submission may appear to be unduly lenient, or perhaps unduly harsh, and trial judges are not obliged to go along with them…
[11] The Supreme Court went on to adopt a “public interest” test for rejecting a joint submission. Joint submissions on sentence are to be accepted “unless the proposed sentence would bring the administration of justice into disrepute or is otherwise contrary to the public interest” (para. 32). At para. 34, the Court emphasized that this is a very stringent test:
[A] joint submission should not be rejected lightly, a conclusion with which I agree. Rejection denotes a submission so unhinged from the circumstances of the offence and the offender that its acceptance would lead reasonable and informed persons, aware of all the relevant circumstances, including the importance of promoting certainty in resolution discussions, to believe that the proper functioning of the justice system had broken down. This is an undeniably high threshold… [emphasis added]
[12] The Court went on to explain the benefits and necessity of a stringent test: paras. 35-45. Guilty pleas in exchange for a joint sentence submission are a necessary part of the criminal justice system. They benefit the accused, victims, witnesses, lawyers and the administration of justice. However, in order for these benefits to be meaningful, the accused must have a “high degree of certainty” that the joint submission will be accepted:
Hence, the importance of trial judges exhibiting restraint, rejecting joint submissions only where the proposed sentence would be viewed by reasonable and informed persons as a breakdown in the proper functioning of the justice system. A lower threshold than this would cast the efficacy of resolution agreements into too great a degree of uncertainty. The public interest test ensures that these resolution agreements are afforded a high degree of certainty. (para. 42).
[13] In this case, the Discipline Committee referred to the Anthony-Cook decision as the guiding authority on the issue of whether it could reject the joint submission on penalty, but it misunderstood the stringent nature of the public interest test and thereby misapplied it. In particular, the Discipline Committee did not find that or articulate any basis for finding that serving the two month penalty in the summer was so “unhinged from the circumstances of the offence and the offender that its acceptance would lead reasonable and informed persons, aware of all the relevant circumstances, including the importance of promoting certainty in resolution discussions, to believe that the proper functioning of the justice system had broken down”. This is evident in a number of respects, including the following:
a. The Discipline Committee ignored other decisions in which two-month suspensions were to be served over the summer, and failed to distinguish those decisions. In particular, the Discipline Committee did not address the decision in OCT v. Bergin, 2018 ONOCT 29, involving similar facts that led to a two-month suspension over the summer, which was brought to its attention at the hearing. The parties’ joint submission could hardly be viewed as “unhinged” if the Discipline Committee imposed a similar penalty in similar cases.
b. The Discipline Committee impermissibly focused on the “fitness” of the sentence, and in particular whether a two-month suspension over the summer months would sufficiently serve the purposes of specific and general deterrence. In Anthony-Cook, the Supreme Court explicitly rejected a fitness test or even a “demonstrably unfit” test in favour of the public interest test: paras. 46-48.
c. Having found that a two-month suspension was an appropriate length, the Discipline Committee engaged in impermissible “tinkering” by moving the suspension from the summer to the early fall: Anthony-Cook, para. 63.
d. The Discipline Committee found that a suspension in the summer was largely “symbolic”, without having regard to the submissions made by the parties that the penalty would remain on the appellant’s record and would be publicly available.
e. The Discipline Committee erroneously suggested that the parties should have shared more information about the circumstances that led to the joint submission. In Anthony-Cook, the Supreme Court recognized that the Crown and defence are best placed to understand the circumstances of the case as a rationale for a stringent test, but there was no suggestion that the parties are required to share that information with the court in order to justify the joint submission.
f. The Discipline Committee had no regard to the benefits and importance of joint submissions on penalty, and no regard to the impact of its decision on those benefits.
[14] The public interest test in Anthony-Cook applies to disciplinary bodies. Any disciplinary body that rejects a joint submission on penalty must apply the pubic interest test and must show why the proposed penalty is so “unhinged” from the circumstances of the case that it must be rejected. In this case, the Discipline Committee clearly misunderstood the stringent public interest test, and impermissibly replaced the proposed penalty with its own view of a more fit penalty. This was an error and we agree with the parties that the appeal should be allowed.
Conclusion
[15] For the reasons above, the appeal is granted in accordance with the terms of the order signed on July 9, 2020, which includes a term that the appellant’s Certificate of Qualification and Registration was to be suspended for two months starting from the date of the order.
[16] No costs were ordered.
D.L. Corbett J.
Doyle J.
Favreau J.
Released: March 26, 2021
CITATION: Timothy Edward Bradley v. Ontario College of Teachers, 2021 ONSC 2303
DIVISIONAL COURT FILE NO.: 504/19
DATE: 20210326
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
D.L. Corbett, Doyle and Favreau JJ.
BETWEEN:
Timothy Edward Bradley
Appellant
– and –
Ontario College of Teachers
Respondent
REASONS FOR JUDGMENT
Released: March 26, 2021