How many Hamilton teachers have been investigated for misconduct? School boards don’t have that answer

A Hamilton Catholic board teacher was recently charged with sexual assault.

It was shocking news for a school community. After all, teachers are in a position of trust over vulnerable young students. The Spectator wanted to know more, specifically about how cases like this are handled by school boards and how often they arise.

We got few answers.

In October, The Spectator filed two freedom-of-information (FOI) requests with both the Hamilton-Wentworth District School Board (HWDSB) and the Hamilton-Wentworth Catholic District School Board (HWCDSB) asking for:

• the total number of teachers currently employed by the school board with conditions on their licences and the nature of the conditions;

• and six years of data regarding school board investigations into teachers accused of professional misconduct.

Both requests were denied.

In its decision letter, the public school board said it denied the requests because privacy laws allow the board to withhold records relating to employee misconduct investigations and internal complaints against employees. The same goes for former employees' records.

The Catholic board decision said much the same: You have requested information that is recorded only in employment-related records that are outside of the scope of MFIPPA (Municipal Freedom of Information and Protection of Privacy Act)."

But it's not just that the boards are refusing to provide the information - they don't have it.

The board does not compile or collect information related to the topics that you've requested," said Shawn McKillop, HWDSB spokesperson.

We can confirm that the HWCDSB does not have a record of teachers with conditions on their licences or the nature of the conditions," said Pat Daly, HWCDSB chairperson. However, in most cases we would be aware if the conditions were reported to us by the Ontario College of Teachers (OCT) and actions/decisions by OCT placed in personnel files."

As such, neither board can answer questions such as:

• How many Hamilton teachers have been investigated for allegations of misconduct in recent years?

• How many were investigated by police following reports of abuse?

• How many have conditions on their teaching licences such as: Not to be in a position of trust or authority over any person under the age of 18 years?"

Experts say the lack of tracked data means no one knows how pervasive potential cases of teacher misconduct are. And while some information is made public regarding individual teachers once it passes through the OCT's investigations processes, the experts say failing to track cases from their outset raises questions about possible systemic issues going unchecked.

Why does a lack of data matter?

Without data, Hamiltonians have little to no sense of how widespread teacher misconduct is, what the nature of the misconduct is, how often investigations result in vexatious, unfounded or unsubstantiated findings, how Hamilton compares to other boards, and so on. The boards, apparently, also have no concrete idea.

And yet, teachers hold positions of authority over some of society's most vulnerable members.

These are public servants paid by public dollars who have charge of our children," said Dean Beeby, a retired CBC journalist and expert in access-to-information laws.

Beeby adds that if the information The Spectator requested was indeed tracked, it could shed light on potential trends.

The data could answer questions such as: Does Hamilton have higher rates of teacher misconduct than elsewhere? Are our boards slower to resolve investigations? How often are cases dismissed?

There are lots of important questions to ask that you're unable to answer," Beeby said.

Arthur Schafer, founding director of the Centre for Professional and Applied Ethics at the University of Manitoba, has similar concerns about possible issues going unchecked.

Suppose that the ratio of allegations ... to the (findings of guilt) was as miserable as rape accusations to rape convictions - that might alert people to a serious problem," Schafer said. For reference, just roughly one in 10 sexual assaults reported to police in Canada leads to a criminal conviction.

If it turned out ... that only one in every 100 allegations led to convictions and discipline, people might say, Why?'" Schafer asks. Does it demonstrate that 99 per cent of allegations were unsubstantiated (or) were frivolous, vexatious? Or is there something wrong with the disciplinary process?"

The experts also questioned why the boards referenced privacy exemptions relating to employee records when denying The Spectator's FOI request, since no identifying information was sought.

Hamilton teacher charged with sexual assault

The revelation that boards don't track investigations comes in the wake of a criminal charges laid against a Catholic board teacher.

On Nov. 3, 2021, police arrested Bishop Ryan Catholic Secondary School teacher Brian Boyle, 53, charging him with eight sex crime charges. The alleged crimes span a period of 13 years and involve four complainants. None of the allegations have been proven. The matter is still before the courts.

Police would not say if the complainants were students or former students.

Boyle is now on an unpaid leave pending the criminal proceeding," the board says.

The Spectator attempted to contact Boyle, but did not hear back.

In September, a month before charges were laid, the HWCDSB confirmed it was aware of serious allegations" involving Boyle, which were posted on social media.

At the time, board chair Pat Daly said the HWCDSB had launched an internal investigation immediately" upon learning of allegations days earlier. At the time of the investigation, Boyle was not currently assigned" to the school, Daly said.

Police also confirmed they were aware of the Boyle allegations. The Ontario College of Teachers (OCT), the self-regulating body that oversees teacher discipline, confirmed it was aware of the matter.

But it wasn't until November, when Boyle was criminally charged, that his OCT record - which is public - was updated to reflect any investigation or interim sanctions.

The notation on Boyle's file reads: Not to be in a position of trust or authority (active employment or volunteering) over any person under the age of 18 years unless they are his own children."

It goes on to say: On Nov. 3, 2021, in the City of Hamilton, in the province of Ontario, Brian Boyle was arrested and charged with the following offences which are relevant to his membership in the College: four counts of sexual assault, three counts of sexual exploitation and one count of sexual interference, contrary to the Criminal Code of Canada."

When Boyle was charged, the board put their internal investigation on pause until the criminal investigation is completed." The OCT still will not confirm if it is investigating, though it said OCT investigations can take place concurrently with criminal investigations.

Again, the unanswered question: how many other Hamilton teachers are being investigated by school boards? We don't know. Unless the media reports on the matter, or it somehow otherwise becomes public, such as via a police release or charges being laid, the public will likely never know about individual cases.

What information is publicly available?

Some of the information requested by The Spectator is publicly available on the OCT's own website - if you were to look through each teacher's profile individually.

The profile of each member," including teachers and principals, is searchable and lists information such as:

• If a teacher's licence is active;

• If terms, conditions or limitations have been imposed on their licence;

• If the teacher has a misconduct case that the OCT's discipline committee has deemed worthy of holding a hearing regarding;

• and if there has been a finding of misconduct, incompetence or incapacity involving the teacher.

But it's not possible to access the nonidentifying data board by board, which could highlight trends. Again, you would have to know the name of each teacher in the board and search them individually.

What is known is that the college can impose terms, conditions and limitations on a licence after it has investigated a teacher and found them guilty of misconduct, or in other cases such as when a teacher is under investigation by police for allegations of sexual violence.

But due of the lack of tracked data, the boards are not able to say how many Hamilton teachers have conditions on their licences.

Nor, apparently, can the OCT.

We would not be in a position to advise as to how many board employees currently have conditions on their certificates as we do not collect that information," said OCT spokesperson Gabrielle Barkany in a statement to The Spectator. There is no list of teachers that have terms/conditions on their licences by specific boards."

But the OCT is adamant: it does track overall cases - just not board by board.

The assertion that the college does not keep track of how many members are subject to conditions is incorrect," the OCT said in a statement. The college actively tracks orders made by college committees involving members whose certificates are subject to terms, conditions, or limitations."

Statistics from the OCT show an intake of 625 complaints in 2020. Of those, 88 were referred to the OCT's discipline committee, 342 to the investigation committee and 12 to the fitness to practice committee.

As for what have happened to the other 183 complaints, the OCT says they could fall under a number of categories, including being abandoned by the complainant, on hold for criminal investigation, or simply ongoing.

How the OCT handles complaints

When complaints come into the OCT, they are processed through a complex web.

According to the OCT, when the college receives a complaint, its intake staff assess the file. The OCT only deals with complaints relating to alleged misconduct, incapacity or incompetence. In such cases, the OCT will inform the member in question, who is given 60 days to respond.

Where appropriate, certain complaints may be resolved through the college's voluntary complaint resolution program," the OCT said. Cases involving sexual misconduct cannot be resolved through this process."

Matters not resolved voluntarily are then passed to the OCT's investigation committee. If the committee finds insufficient evidence of professional misconduct, incompetence or incapacity," the complaint is dismissed. If sufficient evidence" of professional misconduct is found through the investigation, the case is referred to the OCT's discipline committee and/or fitness to practice committee.

Fitness to practice proceedings address allegations relating to a member's physical or mental capacity to meet their professional responsibilities." Proceedings are closed to the public.

Discipline committee proceedings address allegations of professional misconduct and/or incompetence. The proceedings are typically open to the public and, once a decision is made, it is posted on the college website and the member's public register page."

Certain acts of professional misconduct, such as sexual abuse, result in mandatory revocation of a member's certificate."

How school boards handle complaints

Separate from the OCT's processes, school boards can do their own investigations.

The Hamilton Catholic board said it takes all allegations of wrongdoing very seriously" and all allegations are investigated/followed up on."

Our process when staff/teachers are accused of wrongdoing begins with fact finding, which may include interviews and/or statements from complainants/witnesses, and discussions/information sharing with the appropriate member of school and central administration," said Pat Daly, board chair. This step may trigger reporting obligations to the CCAS (Catholic Children's Aid Society) and/or police and lead to the individual being assigned to home duties."

When teachers are assigned to home duties, meaning they're not working in the school, the board is required to report to the OCT, Daly said.

Internal investigations may be paused while other authorities are investigating ... to ensure that their investigations are not prejudiced in any way," Daly said. Upon conclusion of the external investigation, the HWCDSB would resume its internal investigation."

When criminal charges and convictions are involved, that may be cause for termination," Daly said, adding that in some cases, the OCT may revoke the teacher's licence.

If a teacher termination is recommended, it would require the approval of the board of trustees."

The public board pointed to their staff progressive discipline policy when asked for information about internal investigations.

The policy has few details about investigations but defines progressive discipline as: increasingly formal steps for dealing with job-related behaviour that does not meet expected and communicated performance standards."

Police's role

Would you find out if police were investigating a teacher? Maybe.

In the Boyle case, Hamilton police issued a release in September 2021 saying they were aware of the information that is being circulated on social media regarding reports of sexual violence and sexual harassment associated to a Catholic local secondary school." They did not name the teacher.

Police issued second release, naming Boyle, when he was arrested and charged less than a month later.

Jackie Penman, Hamilton police spokesperson, said if there was a risk to students, police would make a matter public.

In other cases, police make public disclosure decisions a case-by-case basis.

She said factors police consider when deciding to release information include: public interest and grave hazard," compelling public interest" or other circumstances.

Province moves to make charges and convictions public

In February, the Ministry of Education announced that Ontario is now the first province to publish the names of teachers facing serious charges or convicted of crimes relevant to their job. The change was effective as of that month.

The OCT told The Spectator that, previously, the college was only able to post restrictions relating to a member's eligibility to be in the classroom.

For instance, if a member had been charged criminally and bail conditions prevented them from teaching, the college could post that," said OCT spokesperson Andrew Fifield. However, if there were no such restrictions, the college would not have been able to post any information on the public register."

However, the Toronto Star reported that critics have concerns about the move tarnishing teacher's reputations when cases are dropped or they are found not guilty.

Asked what happens if a charge is dropped or a teacher is found not guilty, the Ministry of Education said the college would determine when the information is no longer applicable or relevant to the member's membership and can be removed from the public register."

Information on convictions would also not be included if the person received a pardon and the OCT was made aware of that.

What happens elsewhere?

In New Brunswick, a province without a college of teachers or a requirement to publicly share information about teacher discipline cases, records similar to what The Spectator asked for from the Hamilton boards are made available upon request.

Specifically, in 2018, the Daily Gleaner newspaper in Fredericton requested similar information of the seven New Brunswick school districts via right-to-information legislation. Among the information requested: how many teachers were under investigation over a multi-year period, what was the nature of the alleged misconduct, and what was the finding of the investigation.

The bulk of the requested information was provided. The records revealed the number of cases in which New Brunswick teachers were found to have abused students or engaged in misconduct toward students nearly tripled from 2016 to 2017.

Why the information can be tracked and made available in one province, but not in another remains unclear.

What should change?

Sachin Maharaj, an assistant professor in the University of Ottawa's faculty of education, argues that if the data exists, which it does - publicly - then in the interest of transparency, it should also be shared, publicly, by the board itself.

I think most parents have no idea," Maharaj said of teacher's licence status being available online. My guess would be most parents have no idea how to look up their (children's) teacher's record."

He thinks boards should post a list of teachers with conditions on its website, or provide obvious resources online showing parents how to look up kids' teachers. But he doubts many boards would do so willingly.

Paul Bennett, a Nova Scotia-based education consultant and adjunct professor at Saint Mary's University, agrees, saying it's not typically in school boards' interest to make public the details of teacher misconduct.

Educational organizations ... are opaque when it comes to answering inquiries or being accountable for matters that are controversial," Bennett said. Everyone clams up and walls go up and a cloak of secrecy drops.

You need to pry it out."

Katrina Clarke is a reporter at The Spectator. katrinaclarke@thespec.com