Father Kenneth O’Keefe’s teaching licence revoked (Ruling of OCT Discipline Committee)

[The following is the text of the decision of the Ontario College of Teachers to revoke Father Kenneth O’Keefe’s licence]

DISCIPLINE  COMMITTEE

OF THE  ONTARIO COLLEGE  OF TEACHERS

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 Kenneth John J. O’Keefe,  a member of the Ontario College of Teachers.

PANEL:             Louis Sloan, OCT, Chair Alexander (Sandy) Bass, OCT Mel Greif

 BETWEEN:                                                )      Larissa Moscu,

ONTARIO COLLEGE OF TEACHERS  )      McCarthy Tetrault LLP,

 )      for Ontario College of Teachers,

)       assisted by Daniela De Bartolo, Law Clerk

DECISION,  REASONS FOR DECISION  AND ORDERS

This  matter  came  on  for  hearing  before  a panel  of  the  Discipline  Committee  (the “Committee”) on August 27, 2013 at the Ontario College of Teachers (the “College”) at Toronto.

A Notice of Hearing (Exhibit  1), dated May 30, 2013 was served on Kenneth John J. O’Keefe,  requesting  his  attendance before  the  Discipline  Committee  of  the  Ontario College of Teachers on June 21, 2013 to set a date for a hearing, and specifying the charges. The hearing was subsequently set for August 27,2013.

Kenneth John J. O’Keefe was not in attendance.

THE ALLEGATIONS

The  allegations  against  Kenneth  John  J.  O’Keefe  (the  “Member”)  in  the  Notice  of Hearing are as follows:

IT IS ALLEGED that Kenneth John J. O’Keefe is guilty of professional misconduct as defined in sections 30(2) and 40(1.1) of the Ontario College of Teachers Act (the “Act”) in that:

a)  he failed to  strive at all times to  achieve and maintain the highest degree of professional competence and to uphold the honour, dignity and ethical standards of the teaching profession, contrary to section 13 of the Regulation made under the  Teaching Profession  Act  made  pursuant  to  section  12 of  the  Teaching Profession Act, R.S.O. 1970, chapter 456, as amended (the “TPA Regulation”);

b)  he failed to concern himself with the welfare of his pupils while they were under his care, contrary to subsection 14(f) of the TPA Regulation;

c)  he failed to show consistent justice  and consideration in all his relations with pupils contrary to subsection 14(d) of the TPA Regulation;

d)  he failed to comply with subsection 22(1)(c) of the Schools Administration Act,

R.S.O. 1960, Ch. 361 and amendments thereto;

e)  he failed to comply with subsection 229 (l)(c)  of the Education Act  1974 and amendments thereto;

f)   he abused a student sexually, contrary to Ontario Regulation 437197, subsection

1(7.3) and/or engaged in sexual abuse of a student as defined in section 1 of the Act;

g)   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  437197, subsection 1(16);

h)  he contravened a law, the contravention of which may cause a student to be put at or to remain at risk, contrary to Ontario Regulation  437197, subsections 1(17);

i)   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  437197, subsection 1(18); and

j)   he engaged in conduct unbecoming a Member, contrary to Ontario  Regulation 437197, subsection 1(19).

PARTICULARS OF THESE ALLEGATIONS ARE AS FOLLOWS:

I)  Kenneth John J. O’Keefe (the “Member”) is a member of the Ontario College of

Teachers.

2)  At all material times, the Member was employed by Ottawa Catholic District School Board  (the “Board”  as  a teacher  at  [XXX]  School (the “School”)  III Ottawa, Ontario.

3)  At all material times, the  Student was a  [XXX] year old male student at the School.

4)  From and including September I, 1974 to December I, 1974, the Member:

a)  had inappropriate physical contact with the Student;

b)  had sexual contact with the Student.

5)  On or about September 6, 2012, the Member was found guilty of the following charge:

a)  that between the 1st day of September in the year 1974 and the 1st day of December in the year 1974 at the City of Ottawa in the East Region being a male person, did indecently assault the Student, a male person, contrary to section 156 of the Criminal  Code (Canada).

6)  On or about September 6, 2012, the Member was given a conditional sentence of nine (9) months, six (6) months of which are house arrest.

7)  The Member has not appealed the conviction and/or sentence.

Counsel  for the  College  advised  the  Committee   that  an agreement  had been  reached  on the facts and introduced  an Agreed Statement of Facts and Guilty Plea (Exhibit 2), which provides as follows:

AGREED  STATEMENT  OF FACTS

1)  Kenneth John J. 0 ‘Keefe (the “Member”) was at all material times, a member of the Ontario College of Teachers.  Attached to Exhibit  2, Tab A is a copy of the Ontario College of Teachers Registered Member Information respecting the Member.

2)  At all material times, the Member was employed by the Ottawa Catholic District School Board  (the “Board”)  as a teacher at  [XXX] School (the “School”)  in Ottawa, Ontario.

3)  At all material times, the  Student was a  [XXX] year old male student at the School.

4)  From and including September 1, 1974 to December 1, 1974, the Member was the Student’s   [XXX]  teacher  in  Grade  [XXX]  and  belonged  and  currently  still belongs to the order of the Basilian Fathers, which is an international order of Catholic priests.

5)  During the material times, the  Student had  gotten into an argument with his parents that resulted in him  speaking to the Member about it.   The Member always told his students that he was always available if they needed someone to talk to.

6)   The Member  invited  the  Student  to  stay overnight   at his home  after  the  Student told the Member  about  the argument  he had with  his parents.    When  the  Student arrived  at the Member’s   home, the Student  noticed  there was only one bed and the Student told the Member  that he would  sleep on the floor.

7)   The  Member  told  the  Student  that  he didn’t   need  to  sleep  on the  floor  and  that they  could  share  the  bed.    The  Student  got  into  bed,  leaving  his  underwear   on. The Student  fell asleep on his side with his back to the centre of the bed.

8)   The  Student  was  awoken  during  the night  by the Member,  who  was lying beside him, naked and pushed  his erect penis between  the Student’s  buttocks  and through the  Student’s   underwear.     The  Member   also  had  his  hand  inside  the  Student’s underwear  touching  the Student’s  penis.

9)   On or about  September  6,2012,   the Member  was found  guilty that between  the  1st day of September in the year 1974 and the 1st day of December in the year 1974 at the City of Ottawa in the East Region being a male person, did indecently assault the  Student,  a  male  person,  contrary  to  section  156 of  the  Criminal  Code (Canada).

10) On or about September 6, 2012, the Member was given s conditional sentence of nine (9) months, six (6) months of which are house arrest.

11) Attached to Exhibit  2, Tab B is a certified copy of the Superior Court of Justice Indictment, dated November 1, 2011.

12) A certified copy of the Conditional Sentence Order dated September 6, 2012, is attached to Exhibit 2, Tab C.

13)A  certified  copy  of the Prohibition   Order  dated  September  6,2012,   is attached  to Exhibit 2, Tab D.

14) A certified copy of the Fine OrderNictim  Surcharge dated September 6, 2012, is attached to Exhibit 2, Tab E.

15) A  copy of the  Transcript of Proceedings made on  September 6, 2012 before Madam Justice Lynn D. Ratushny, is attached to Exhibit 2, Tab F.

16) By this document, the Member admits, for the purposes of this proceeding only, the truth of the facts and the exhibits referred to in paragraphs 1 to 15 above (the “Admitted Facts”).

GUILTY PLEA

 17) The  Member  hereby  acknowledges  that  the  Admitted  Facts  referred  to  in paragraphs 6 to 10 above, constitute conduct which is professional misconduct, and admits the allegations of professional misconduct against him, being more particularly:

a)  he failed to strive at all times to achieve and maintain the highest degree of professional competence and to uphold the honour, dignity and ethical standards of the teaching profession, contrary to section 13 of the Regulation made under the  Teaching Profession Act  made pursuant to section 12 of the Teaching Profession Act, R.S.O. 1970, chapter 456, as amended (the “TPA Regulation”);

b)   he failed to concern  himself  with the welfare  of his pupils  while  they were under his care, contrary  to subsection  14(f) of the TPA Regulation;

c)  he failed to show consistent justice and consideration in all his relations with pupils contrary to subsection 14(d) of the TPA Regulation;

d)  he failed to comply with subsection 22(1)(c) of the Schools Administration Act, R.S.O. 1960, Ch. 361 and amendments thereto;

e)  he failed to comply with subsection 229(1)(c) of the Education Act 1974 and amendments thereto;

f)   he breached Ontario Regulation 437197 subsections 1(7.3); 1(16); 1(17); 1(18) and 1(19) and the Member also acknowledges that he engaged in sexual abuse of a student or students of a nature defined in Sections I and 40(1.1) of the Act.

18) 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  depending   on the  penalty  ordered  by  the  Discipline Committee,   the decision  of the  Committee   and a summary  of its reasons, including    reference    to   his   name,   may   be   published    in   the   official publication  of the College;

e)   he understands   that  any  agreement  between   counsel  for  the  College  and himself  with  respect  to  the  penalty  proposed   in  this  document   does  not bind the Discipline  Committee;

f)    he understands and acknowledges that he is executing this Agreement voluntarily, unequivocally, and with the advice of legal counsel.

19) In light of the admitted facts and circumstances and plea of guilt, the Ontario College of Teachers and the Member submit that the Discipline Committee find the Member guilty of professional misconduct.

PUBLICATION BAN

A non-publication order was issued under subsection 486.4 of the Criminal Code (Canada), in the proceedings in the Superior Court of Justice. The Committee is therefore required to uphold this publication ban imposed in the matter of Her Majesty The Queen v. Kenneth  John  J.  0 ‘Keefe by  the  Superior  Court  of  Justice.  There  shall  be  no publication of any information that might tend to identify the victim involved in this matter.

DECISION

Having considered the evidence, onus and standard of proof, and the submissions made by Counsel for the College and Counsel for the Member, the Committee finds that the facts support a finding of professional misconduct.   In particular, the Committee finds that Kenneth John J. O’Keefe  committed acts of professional misconduct as alleged, more  particularly  breaches  of  Ontario Regulation  437197, subsections  1(7.3),  1(16), 1(17),1(18) and 1(19).

The Committee also finds that the Member engaged in sexual abuse of a student of a nature defined in Sections 1 and 40(1.1) of the Act.

Further, the Committee finds that the Member:

a)  failed to strive at all times to achieve and maintain the highest degree of professional competence and to uphold the honour, dignity and ethical standards of the teaching profession, contrary to section 13 of the Regulation made under the  Teaching Profession Act  made pursuant to section 12 of the Teaching Profession Act, R.S.O. 1970, chapter 456, as amended (the “TPA Regulation”);

b)  failed to concern himself with the welfare of his pupils while they were under his care, contrary to subsection 14(f) of the TPA Regulation;

c)  failed to show consistent justice and consideration in all his relations with pupils contrary to subsection 14(d) of the TPA Regulation;

d)   failed  to  comply  with  subsection   22(1)( c) of the  Schools Administration Act, R.S.O. 1960, Ch. 361 and amendments thereto; and

e)  failed to comply with subsection 229(1)(c) of the Education Act 1974 and amendments thereto.

REASONS FOR DECISION

The Committee accepts the Member’s  admission of the truth of the facts and exhibits referred to in paragraphs I to 15 above (the “Admitted Facts”).      The Member acknowledged that the Admitted Facts referred to in paragraphs 6 to 10 above, constitute conduct  which  is professional  misconduct,  and pleaded  guilty  to  the  allegations  of professional misconduct against him, being more particularly breaches of the Schools Administration Act, the Education Act,  sections 13, 14(d) and 14(f) of the Regulation made under the Teaching Profession Act,   and Ontario Regulation 437197, subsections

1(7.3), 1(16), 1(17), 1(18) and 1(19). The Member also acknowledged that he engaged in sexual abuse of a student of a nature defined in Sections I and 40(1.1) of the Act.

The Committee accepted the Member’s  guilty plea  and accepts that the facts in the Agreed  Statement  of  Facts  and  Guilty  Plea  (Exhibit   2)  amount  to  professional misconduct as pleaded to by the Member.

While the Member was a teacher at the School, he had inappropriate physical and sexual contact, which culminated in a sexual assault, on a [XXX] year old male student in his care.   This sexual assault occurred in the Member’s  apartment while the Student was visiting him after having had a conflict with his parents.  The Member offered the Student to stay overnight at his home.  There was only one bed and the Member encouraged the

Student  to share the bed  with  him even though  the  Student  was prepared  to sleep  on the floor.    Sometime  during  that  evening,  the  Student  was  awakened  by the  Member,  who was  naked   and  was  placing   his  hand   inside   the  Student’s    underwear,   touching   the Student’s  penis.   At the  same time,  the Member  was pushing  his own penis  between  the Student’s  buttocks  through  the Student’s  underwear.

On September  6,2012,   the Member  was convicted  of the indecent  assault  of the Student, contrary  to  section  156 of the  Criminal Code (Canada).  For this offence, the Member was sentenced to a nine (9) month conditional sentence order, which included six (6) months of house arrest.   In addition, the Court ordered that the Member pay a fine of

$100.00 and be prohibited pursuant to section 161 the Criminal Code (Canada), for life, from being in the presence of persons under the age of sixteen, seeking employment or volunteer opportunities that involve being  in a position of trust or authority towards persons  under the  age of  sixteen years,  or using  a computer  system as a means  of communicating with persons under the age of sixteen years.

The  law of  evidence  and Rules  13.03 and  13.04 of the Rules  of Procedure  of  the Discipline Committee and of the Fitness to Practise Committee of the Ontario College of Teachers allow the  Committee to  accept a certificate of conviction as proof that  an offence was committed by a person, where there is a finding of guilt and conviction in a Canadian court, provided that there is no evidence to the contrary and that no appeal has been granted. The Member has not appealed the conviction or the sentence.

The Committee finds that by his  actions and his  conviction of indecent assault, the

Member committed acts of professional misconduct as alleged.

JOINT  SUBMISSION   ON PENALTY

Through a Joint  Submission  on Penalty  document (Exhibit  4), College Counsel and Counsel for the Member jointly  submitted that the appropriate penalty in this matter would  be  that  the  Committee  direct  the  Registrar  to  revoke  the  Certificate  of Qualification and Registration of the Member immediately and that there be publication of the findings and Order of the Committee in summary form, in the official publication of the  College, Professionally  Speaking/Pour parler  profession.  The parties  had not agreed on whether or not the Member’s name should be published and made submissions on that issue.

SUBMISSIONS ON PUBLICATION-COUNSEL FOR THE COLLEGE

Counsel for the College acknowledged that given the Member’s  age and retirement that there was little chance that the Member would return to teaching and therefore there was no need to consider, in this specific case, the issue of specific deterrence.   However, Counsel for the College did speak to the matter of general deterrence.   This issue is a continuing one for the matter of the public trust and for that matter, the profession itself and therefore, a statement of general deterrence must be made.  In this regard, Counsel for the College asked that there be full publication, with name in order to achieve the deterrence and transparency so required by the maintenance of the public trust.   Sexual assault on a student is considered to be one of the most severe types of professional misconduct and the Committee should communicate strongly that this behaviour will not be tolerated.

Counsel   for  the   College   presented    two   recent   cases   where   publication    with   name occurred.   In both cases, the view of Counsel  for the College  was that since serious  sexual misconduct  had occurred  that publication  with name was necessary.

SUBMISSIONS ON PUBLICATION-MEMBER’S COUNSEL

Member’s  Counsel provided  no examples of prior  decisions made by the Discipline Committee,  but  did  offer  a  mitigating  argument.    Member’s  Counsel  provided  an argument whereby he maintained that one of the example cases provided by College Counsel was for a much more egregious case which warranted an aggressive penalty and therefore, perhaps publication with name was appropriate in that case.  In the matter at hand, the Member’s  behaviour  could be deemed to be of a lesser nature and should therefore be considered in determining a penalty.  At the same time, the Member pleaded guilty, cooperated fully and was remorseful.  Member’s  Counsel argued that the penalty imposed could be moderated and that publication without name would reflect his cooperation in facilitating the legal proceedings against him.  Further considerations were brought forward for the Committee. The Member is now eighty-three and the incident occurred thirty-nine years ago. The Member has also been sober for many years.

PENALTY

The Committee makes the following order as to penalty:

1.   The Committee directs the Registrar to revoke the Certificate of Qualification of the Member, which Certificate the Member is to immediately surrender to the Registrar; and

2.     The  Committee   directs  that  there  be  publication   of  the  findings  and  Order  of  the Committee  in summary  form, with the name  of the Member,  in the official  publication   of the College,  Professionally Speaking/Pour parler profession.

REASONS FOR PENALTY

Instances of sexual misconduct require significant penalties.   In this case, the Member pleaded guilty and was found guilty in criminal proceedings before the Superior Court of Justice.   The Committee was able to rely on the record of those proceedings to fully understand the magnitude of the Member’s  transgression.   The Committee took into account any mitigating factors that may have been part of the Member’s  cooperation in those proceedings.  Nevertheless, the behaviour still warrants revocation.  In the case of such  sexual  misconduct,  the  Committee  finds  that  it  is  appropriate  to  revoke  the Member’s Certificate of Qualification and Registration.

The  Committee  considered  the  issue  of  publication  with  or  without  name.    The Committee was of the opinion that in this particular instance, publication with name is warranted and appropriate.  It considered the matter of deterrence.   Specific deterrence was no longer an issue because  of the Member’s  current retired  status, age and the unlikelihood of his ever returning to teach.   General deterrence remains an important consideration.   The profession must be fully informed as to the consequences of the behaviour being considered in this matter.  Teachers must know that they are held to a very high standard and that failure to adhere to the standard will result in the College’s most severe penalty.