Chapter I: The Nature and Scope of the Review

Background

On April 9, 1996, Kenneth DeLuca pleaded guilty to 14 sexual offences, involving 13 victims. The crimes took place from 1972 to 1993. Each was committed while DeLuca was a teacher with the former Sault Ste. Marie Roman Catholic Separate School Board. All of his victims were females; all but one were students. Their ages ranged from 10 to 18.

DeLuca's crimes represent the ultimate breach of the trust reposed in a teacher. He was every parent's nightmare-a teacher who sexually preys on students. His conduct severely damaged his victims' physical and emotional well-being and, in some cases, has had a devastating impact on their lives.

As early as 1973 and at numerous times thereafter, complaints were made about DeLuca's sexually abusive conduct to principals, other teachers and school board officials. Though the complaints were well-founded, they were not acted upon. The crimes continued unabated for over 20 years. Indeed, DeLuca easily moved from school to school, leaving behind emotionally wounded victims, with a fresh opportunity to victimize others.

When DeLuca's crimes were belatedly exposed through the criminal process, it became clear that the educational system had failed his victims. The community was understandably shocked and wanted to know what went so terribly wrong and why. How could this abuse have gone unchecked for 20 years? What protocols or procedures existed to protect children from such abuse? What can be done to ensure that this will not happen again?

These questions raise issues of great importance and require serious attention. After all, children are our most precious asset. Schools are intended to be healthy and nurturing environments within which children can safely learn and grow. When a school environment is poisoned by sexual crimes or harassment, it is of fundamental concern to us all.

The vast majority of teachers are unquestionably highly dedicated and caring professionals who seek to ensure a safe learning environment for their students. They are no doubt appalled by conduct such as DeLuca's, and are understandably concerned that such conduct may unfairly reflect upon them and their profession. Some are also concerned that a heightened sensitivity to sexual abuse may inhibit an appropriate nurturing relationship between teacher and student and deprive children of the warmth and compassion of those who educate them. Most are concerned about false allegations of sexual abuse and the terrible damage that can result when such accusations are made against a teacher. One must remain mindful of these concerns.

However, DeLuca's case is not unique. There are abusive teachers who, like DeLuca, are "opportunistic" sexual predators motivated by power, control and sexual gratification. Some are pedophiles who prefer to have sex with children and have chosen to work in schools so they can better access their targets. Others have "romantic/bad judgment" relationships with students, believing that their conduct is either harmless or is acceptable because the students are said to be doing what they want to do. Still others engage in sexual harassment or insensitive and inappropriate, though not necessarily criminal, conduct. The unhappy reality is that cases of sexual misconduct are more prevalent than the public and the teaching profession may believe.

While reliable statistics are hard to come by, the law reports, disciplinary cases, arbitration cases and media accounts indicate a significant number of cases in which Ontario teachers, and teachers elsewhere, have engaged in sexual misconduct against students. Moreover, it can be safely assumed that many, perhaps most, incidents of sexual misconduct remain hidden and unreported. Some studies suggest that a sizable percentage of students find sexual harassment by teachers within their school environment to be a problem. In short, it would appear that the reported cases of sexual misconduct represent only the tip of the iceberg.

Nor can the response to DeLuca's victims be regarded as unique. Reluctance on the part of teachers to report suspected sexual misconduct by a colleague, intimidation of victims and their parents to prevent or discourage disclosure, failure to act upon disclosures of misconduct, the inadequacy of records documenting complaints made, the transfer of a suspected perpetrator from school to school, the absence of screening procedures on the hiring of new teachers have all been seen, to varying degrees, in both the DeLuca case and in numerous other cases and in the literature documenting sexual misconduct in schools.

Of course, the physical and emotional impact of sexual abuse on DeLuca's victims is far from unique. Tragically, it is to be expected.

The DeLuca case provides an important framework for an evaluation of how suspected and proven sexual misconduct by teachers upon students is addressed and how it can be prevented or better identified and dealt with in the future. Though, since DeLuca, important changes have been made, they do not completely address these issues and, in any event, practices widely vary from jurisdiction to jurisdiction within Ontario. As the Report simply states: "the problem remains".

The Report examines the issues raised by the DeLuca case and the lessons to be learned from it. Recommendations for change are designed in the hope that they will facilitate the identification and prevention of sexual misconduct within the Ontario school system, and thus better protect our students.

The Mandate

By Order in Council dated May 5, 1999, the Honourable Sydney L. Robins, a former judge of the Court of Appeal for Ontario, was appointed to conduct a review into and report on the following matter:

The incidents involving Kenneth DeLuca which gave rise to charges and the prosecution and guilty pleas of Mr. DeLuca with respect to the sexual assault of female students enrolled in the former Sault Ste. Marie Roman Catholic Separate School Board from the late 1970s to the early 1990s to the extent appropriate to make recommendations regarding protocols, policies and procedures to effectively identify and prevent sexual assault, harassment or violence.

The Order in Council permitted the Chair to request any person to provide information or records, meet with any person and rely on any transcripts or record of legal proceedings relating to any criminal, civil or administrative proceedings respecting DeLuca. The Order in Council authorized a review, not a public inquiry. During a review, witnesses cannot be compelled to testify under oath. Interested parties have no opportunity to test the accuracy or veracity of other parties. Given these and other limitations, neither findings of credibility nor disputed findings of misconduct could fairly be made. Indeed, the Chair was precluded, as is also the case in a public inquiry, from finding civil or criminal responsibility of any person or organization or making recommendations regarding such responsibility.

However, the voluminous documentary record fully enabled the Chair to identify what went wrong in the DeLuca case and to make recommendations as to how similar events might be prevented in the future. For example, a realistic appraisal of the undisputed evidence available to the review made clear that the response of the School Board and its employees to complaints or disclosures made by the victims was completely inadequate and, indeed, harmful. It involved, at times, stereotypical notions of what could be expected from a truthful victim, a minimizing of the seriousness of DeLuca's misconduct, a lack of objectivity and a self-serving approach to these complaints, a failure to properly investigate or document these complaints and a complete absence of appropriate policies, protocols and procedures to identify and investigate suspected abuse and prevent its continuation.

The public has had very limited information on what transpired during the DeLuca affair. Criminal and civil proceedings were resolved or settled without the necessity of trials. This lack of information doubtless contributed to the community of Sault Ste. Marie's understandable outrage and its continuing concern for the safety and well-being of its children. The factual component of the Report is designed not only to provide a basis for the systemic recommendations which follow, but also to inform the community of what happened here and facilitate the healing process.

The Report contains 101 recommendations for change. They specifically address teacher-student sexual misconduct in the elementary and secondary schools. However, it is hoped that the recommendations will be received, as they were intended - as part of a larger strategy, directed at contributing to a healthier school environment generally. It is important to remember that policies and protocols designed to identify and prevent sexual misconduct by educators may, and indeed, should be established within larger initiatives designed to create a school environment free from violence, abuse, harassment and discrimination. These initiatives could address student-to-student or student-to-teacher activities as well as a wide range of conduct, including physical abuse or harassment unrelated to sexual misconduct. It is hoped that the policies and protocols recommended in this Report can be integrated with analogous policies.

Definitions of Sexual Misconduct, Abuse and Harassment

Throughout the Report, the terms "sexual abuse" and "sexual harassment" are discussed. These terms admit of some confusion. "Sexual abuse" is generally understood by many to describe conduct that involves physical contact between the abuser and victim which is criminal and which involves a significant age differential between the parties. (DeLuca's criminal activity is appropriately so described.) "Sexual harassment" is often used to describe non-criminal but offensive conduct, including comments about a student's physical characteristics, suggestive or offensive remarks, propositions of physical intimacy and other behaviour which is unwelcome and sexual in nature. The Report introduces the term "sexual misconduct" to address the full range of activities by teachers which should be proscribed and to avoid labels which are too easily misunderstood. Generally, it constitutes offensive conduct of a sexual nature which may affect the personal integrity or security of any student or the school environment. Chapters IV and VI of the Report contain a more precise delineation of the boundaries set by this definition.

Survivors of DeLuca's Abuse

The Report reflects the input, including the insight and helpful suggestions, of a number of the survivors of DeLuca's abuse with whom the review met. These women, who demonstrated great courage in the affirmative steps they took to overcome their ordeals, are "survivors" in the fullest and most positive sense of that word.

In order to protect the privacy of these survivors, and to avoid their re-victimization, the Report refers to them by initials unrelated to their actual names.

The Process

The review sought the views of as many different stakeholders as possible. A toll free line was set up and an advertisement was placed in local Sault Ste. Marie newspapers inviting interested parties to file submissions, propose recommendations and provide information relevant to the review. Many did. In addition, members of the review staff met with representatives of many stakeholders from across Ontario, including teachers' federations and associations, trustees' associations, school boards, the Ontario College of Teachers, child or victim-witness organizations, the Crown Attorneys' Association, the Criminal Lawyers' Association, faculties of education, counsel for many of these stakeholders and academia. Interested parties included a number of DeLuca's victims, in some cases, their parents, and other interested parties in Sault Ste. Marie.

Questionnaires were sent to all school boards and authorities and children's aid societies in Ontario. Submissions were also requested from 17 of the province's larger police service boards or police forces and from principals' associations, parents' associations and students' associations.

This extensive consultative process across Ontario was important to a fuller understanding of what transpired in the DeLuca case and the formulation of systemic recommendations.

Structure of the Report

The Report is comprised of six chapters. Recommendations for change, reproduced in bold print, appear throughout Chapters IV to VI. They are again reproduced, without supporting commentary, at the end of the Report. The Appendices which follow include, amongst other things, several policies and protocols currently in use by school boards in Ontario.

Chapter I provides an overview of the entire Report.

Chapter II outlines the facts directly arising from the DeLuca affair. These facts relate to DeLuca's conduct, the response to complaints about his conduct and the impact of these events upon DeLuca's victims. Commentary upon these facts is contained in italicized passages throughout the chapter and in a summary and conclusion at the end of the chapter. The Report's conclusions as to what went wrong in the DeLuca case provide a basis for later recommendations.

Chapter III examines the extent and nature of the problem of sexual misconduct by teachers as reflected in the reported criminal and disciplinary cases, media accounts and in the literature.

Chapter IV of the Report examines the laws pertaining to sexual misconduct by teachers upon students to the extent necessary to fulfill the review's mandate and to make recommendations for change. The chapter addresses the relevant provisions of the Criminal Code, the Ontario Human Rights Code, the Child and Family Services Act, and education-related statutes, such as the Education Act, the Teaching Profession Act, and the Ontario College of Teachers Act, 1996. Certain deficiencies in existing legislation are highlighted. Civil liability is also briefly canvassed. Much of the chapter is dedicated to the special evidentiary and procedural considerations which obtain when a sexual complainant or child witness' account is relevant to criminal or administrative proceedings. Recommendations relating to this particular section are directed at minimizing the re-victimization of complainants after they have disclosed misconduct in a way compatible with the interests of all affected parties.

Chapter V focusses on concerns raised by teachers, including false accusations of sexual misconduct. The fear that a heightened sensitivity to potential sexual misconduct will have a chilling effect on a friendly and nurturing school environment is also explored. Several recommendations in this chapter better promote a fair and accurate evaluation of sexual misconduct allegations. The views espoused by teachers on the issues examined in the Report are not confined to this chapter; they find expression in various chapters.

Chapter VI extensively examines existing policies, protocols and procedures which are relevant to the systemic issues under consideration and makes recommendations for change. Many of the concerns raised by this review are best addressed, not through legislative intervention, but through comprehensive policies and protocols adopted by school boards across Ontario. The chapter concludes with a detailed checklist to assist school boards in developing their own policies and protocols.