On Thursday October 25, 2018 the Provincial Government announced it would introduce legislation which, if passed, would require the Discipline Committees of the Ontario College of Teachers and the College of Early Childhood Educators to revoke an educator's certificate of registration for any act of sexual abuse of a student or child. In addition, it would provide regulation-making authority to require mandatory revocation of an educator’s certificate for engaging in behaviours of a sexual nature that are prohibited under the Criminal Code.

The Ontario College of Teachers and the College of Early Childhood Educators already have the power to revoke certificates for sexual misconduct or any other form of misconduct. The proposed change would, however, make exercising this power mandatory and would remove the discretion of the College to consider the specific circumstances of each case, the public interest, and the wellbeing of the individual victims.

ETFO members are professional educators and are proud of their judgement, their competence and their integrity. ETFO members strive to meet the highest professional standards in their teaching careers and are mindful of their position of trust and influence.

While the incidence of sexual misconduct or sexual abuse perpetrated by educators is extremely low, each incident tarnishes the reputation of the profession as a whole, and traumatizes those we are entrusted to protect. ETFO is committed to eradicating sexual abuse and sexual misconduct involving students and children.

ETFO is also committed to ensuring that its members are treated fairly. This means upholding the presumption of innocence until proven guilty;  ensuring that all professional discipline investigations and hearings meet the highest standards of fairness and justice, and that decisions are made with a full understanding of the facts and surrounding circumstances; and ensuring the that interests of students and teachers are both taken into account.

Mandatory revocations prevent the College from tailoring decisions and consequences to the specific facts of each case and eliminate the prosecutors’ ability to negotiate plea bargains. Removing such discretion will prevent resolutions from being reached, and will instead ensure that child victims who cannot or should not be forced through the hearings process (including cross-examination) are required to do so or will risk losing the case. It will also result in an increase in the number of full hearings on these very sensitive issues which could otherwise have been resolved in the public interest and which prevent unsuccessful prosecutions.

It has been ETFO’s experience that both the College of Teachers and the College of Early Childhood Educators take very seriously allegations of professional misconduct, particularly misconduct of a sexual nature, and have frequently utilized their powers to revoke certificates. Sexual assault cases can be difficult to prove and therefore many are resolved through negotiations which consider the public interest and need for sensitivity, while also ensuring that the resolution is tailored to the specific circumstances needs of the individuals involved. Discipline Committee decisions, regardless of how they are reached, are transparent and publically recorded. Educators who are found guilty of such misconduct are branded with such public decision for life.

As an organization, ETFO is concerned that the proposed legislation does not achieve the appropriate balance, is not in the best interest of victims of sexual assault/misconduct and is not in the public interest. In the circumstances, the introduction of mandatory revocation is neither necessary nor appropriate.

Current OCT Legislative scheme:

The Ontario College of Teacher has a duty under the Act to serve and protect the public interest. This mandate includes investigating complaints against members and addressing discipline issues. The Discipline Committee has the power, where a member is found guilty of professional misconduct, to revoke any certificate held by the member under the Act. There are also powers under the Act to make interim orders directing the Registrar to suspend a member’s certificate pending a determination by the Discipline Committee if the Council or the Executive Committee is of the opinion that the actions or conduct of the member exposes or is likely to expose students to harm or injury.

Professional misconduct is defined in the Act to mean: (a) sexual abuse of a student, (b) sexual misconduct, (c) engaging in prohibited acts involving child pornography, or (d) any other act or conduct prescribed by the regulations.

• Sexual abuse of a student by a member means: (a) sexual intercourse or other forms of physical sexual relations between the member and the student; (b) touching, of a sexual nature, of the student by the member; or (c) behaviour or remarks of a sexual nature by the member towards the student.
  
• Sexual misconduct means inappropriate behaviour or remarks of a sexual nature by the member that is not sexual abuse of a student, where: (a) one or more students are exposed to the behaviour or remarks, or the member knows or ought to know that one or more students are likely to be exposed to the behaviour or remarks; and (b) a reasonable person would expect the behaviour or remarks to have the effect of (i) causing distress to a student exposed to the behaviour or remarks, (ii) being detrimental to the physical or mental well-being of a student, or (iii) creating a negative environment at a school for a student exposed to the behaviour or remarks.

• Prohibited act involving child pornography includes any act prohibited under section 163.1 of the Criminal Code.

• There are a number of other behaviours or acts prescribed by regulation which may apply including failing to maintain the standards of the profession; abusing a student verbally; abusing a student physically; abusing a student psychologically or emotionally; abusing a student sexually; conduct unbecoming a member; and failure to comply with the member’s duties under the Child, Youth and Family Services Act, 2017.

 The Early Childhood Educations Act, 2007 has parallel provisions. It has the same public interest objective as the College and is similarly mandated to investigate complaints against members related to discipline issues. There are parallel powers to revoke certificates and to make interim orders suspending certificates pending final determination. There are also analogous definitions of professional misconduct, sexual abuse of a student, sexual misconduct, and engaging in prohibited acts involving child pornography.