Focus on LeSage, Former Ontario Cheif Justice Patrick LeSage and K. Lynn Mahoney, By Brian Jamieson.

Why did you take this review on? What interested you?

Patrick LeSage: I like to learn. What I find in these various reviews that I undertake is that I learn an immense amount. Life should be about learning.

Lynn MAHONEY: I’m always thrilled at the opportunity to delve into an area I know very little about. I have children in school, but that is the end of my knowledge of the College. I was surprised, too, because I’m on parent councils at high schools and elementary schools. I didn’t know of the College at all.

How was this review different from the others that you’ve done?

LeSage: I have always believed that education is one of the most important and fundamental values. Next to food in your stomach and a roof over your head, education is the most important thing to humankind, so I was honoured and delighted to be doing something in the field of education.

Did you find the milieu that you were working in different or unusual from other sectors that you’ve worked in?

LeSage: No, not particularly so. When people know that they’re at risk of having adverse comments made about them —not because of what they say to me but because of what I’m delving into — what pleasantly surprises me is how willing they are to be open and frank with us when we’re meeting to discuss the issues about which there may be very strongly held views. In this review, like many others, the people who presented diverse views didn’t come with an axe to grind or a chip on their shoulder. They came to inform me, inform us, about what the issues are and what the reality of teaching is. We think we know a bit about teaching, having gone through many years of schooling, but the reality is that being a teacher is a very challenging task.

MAHONEY: The process we’ve gone through for this review was the same we’ve used for many others. The people we met with were well aware of what the issues were — the significant issues that were front and centre — and they did come with very direct, responsive, helpful feedback on all of it. Everybody we received emails or phone calls from or we met with were all very helpful. There was no negativity in the process at all.

Were you conscious, having made 49 recommendations, that more than 60 per cent require action by an organization (the provincial government) outside ours?

MAHONEY: A lot of the recommendations will require legislative change, but the terms of reference that we were operating within required us to review the investigation and disciplinary policies and procedures, and a large number of those policies and procedures require an examination of the Act and the regulations. To the extent that the College and its departments act in accordance or pursuant to those regulations, we felt that the regulations or the legislation could be improved, and that was the recommendation to the College. I believe the thought was that the process for amending the legislation is such that the result will be a more consistent future, because it is enshrined and everybody acts in accordance with it.

LeSage: We didn’t try to break down what is a procedural rule and what is a bylaw, what is a rule of practice, a rule of procedure, what is a regulation and what is legislation. In some cases, we did specifically say the legislation should be changed. But in many of the other cases, we didn’t specify. As you know, legislation — with a small “l” — can come in many forms. You can do it by an amendment to the Act, which is generally referred to as a legislative change. Regulations are also legislative change, but they’re not done by an act. And then you have bylaws and the rest. There are many ways any form of rules can be implemented. We tried not to be doctrinaire, to say this should be a bylaw, this should be a rule of procedure. That can best be worked out by the people who are involved daily. We in the legal profession always think of legislation as an amendment to an act as being the highest form of rule, and it is, in part because it is always subject to legislative debate. Regulations are not. In some cases, we referred to specific changes in legislation, in others we left it up to those involved, including the Ministry of Education, as to whether it should be legislation, regulation, bylaw or procedural rule.

Patrick LeSage and K. Lynn Mahoney at conference table

Were you specifically looking at what was wrong or not working?

The one word it comes down to is transparency. That doesn’t give you a lot of solutions, but it is so important, as I believe it is in all the public domain.

LeSage: We were looking at what could be improved. We always try, when we do these things, to think — and I know it’s simplistic — better to light a candle than to curse the darkness. And so we don’t, in any of our reports, if we don’t have to, spend a lot of time reflecting on whether something was done poorly or why or who did it, rather what should happen in the future. We consider our reports to be forward-looking — what should be done. I know it’s far more titillating to talk about what’s gone wrong in the past. It might attract great headlines, but it’s not very productive.

What, if anything, surprised you?

LeSage: One of the first things we learned was that there was an Ontario College of Teachers and that we weren’t the only ones who didn’t know that there was a College and what it does, what its mandate was and its history. We were somewhat surprised to discover that it’s the only one in Canada.

Hence your first recommendation in the report.

LeSage: Absolutely.

MAHONEY: The public cannot make use of a system that they’re not aware of. At the same time, there are people who make use of the complaint system at the Ontario College of Teachers who probably shouldn’t be there and who should, more appropriately, be dealing with it at the school board and schools. It’s a dual problem and there needs to be a great deal of clarification regarding the roles of the various actors within the education system and who deals with what. That will help the College as well because it won’t have to address matters that are not within its bailiwick.

From my perspective, the thing that surprised me the most was the lack of publication of names of teachers who were involved in the discipline process, and the lack of publication and accessibility of the discipline decisions.

Why did that surprise you?

MAHONEY: In my experience with other self-regulating professions, and the one that’s closest to home for me, the Law Society, the name of any lawyer who deals with the Law Society on the discipline side of things, except for minor levels of involvement, is publicized and it remains on the record. In the civil and criminal justice system, the accused’s name, notwithstanding the nature of the process particularly on the criminal side — and they’re often difficult cases — is publicized, except for circumstances involving the sexual abuse of a child.

How is the public better served by having that information?

LeSage: Because it is the public system. We, the public, are the ones who create and elect government and indirectly run government in all of its manifestations. Anything I think of necessity certainly in the public service realm has to be public.

I spent 41 years in a courtroom and I can count on one hand the number of times when a court was closed. In 29 years as a judge, I never closed a court. I came close, but I still allowed the lawyers, police and the media to remain. But I was worried about the witness being identified. Everything I was ever involved in as a prosecutor or a judge was public, except for negotiations in plea discussions where a plea was agreed upon by the prosecutor and the defence. That discussion remained private, but if it went into a courtroom and came to fruition, it was all disclosed and on the record in the courtroom. The only times names aren’t given are if it’s a young offender or if naming the accused disclosed the identity of the victim.

Even in family law, where the most sensitive things come out about relationships, and all financial relationships, that’s all public. And the interesting thing is very little is picked up by the media. They use their discretion and rarely print.

It’s when you try to hide something from public scrutiny that it’s going to hit the front page. The event itself may have been on the back page or, in fact, not on any page, but if there’s an attempt to hide it, it will then be on the front page and you’re just assuring that there will be a lot of effort to comment — and publicity.

Were you in any way influenced by what you saw in the media coverage about what the College was doing?

LeSage: Informed, to some extent, but not influenced.

MAHONEY: It set out a scenario and then we were given access to all the information. So it set us about the task, but we delved into it further and found out whether it was accurate or inaccurate. It probably highlighted for all the participants who ultimately became involved in the review what, graphically, the issues were, and those issues were dealt with in the review, plus others.

Is there a recommendation you made that stands out for you?

LeSage: The one word that it comes down to is transparency. That doesn’t give you a lot of solutions, but it is one thing that is so important, as I believe it is in all the public domain. There are very few things that are more in the public domain than education.

Do you have faith when you make a report like this and with the recommendations you’ve made that, if acted on, a lot of what we’re looking for in terms of transparency will actually transpire?

LeSage: Absolutely.

MAHONEY: I think also in terms of the processes, particularly at the Discipline Committee stage, the processes and the constitution of the panels, the rendering of decisions and all that it entails in terms of publication of the member’s name. All of that can only be enhanced and, therefore, the confidence that the public has in the system will be enhanced.

There are terrific people who work at the College and all the stakeholders we met with — everybody has the public interest at heart. It’s difficult sometimes to go beyond that to ensure transparency. Some people feel somewhat conflicted. But I believe that if the system is changed in accordance with the recommendations, that will happen, and I think it will be to the benefit of every teacher in the province and certainly for the public beyond the teachers.

I believe that the public interest is what our democracy is based on. We, the citizens, create a structure to act on our behalf.

How do you feel about recommendations that Council would have passed on to committees for further discussion?

LeSage: That doesn’t bother me. Some of the things that we’ve spoken about require further discussion. We didn’t want to make specific, mandatory recommendations because you need more input. For instance, about what happens on the website when a charge is withdrawn or the person is found not guilty. It’s not easy. We could have made recommendations, but I don’t see that issue as black and white. There needs to be some nuance.

You say that invariably there should be revocation for a member found guilty of sexual abuse and that there be a mandatory period of five years before being allowed to reapply.

LeSage: Yes, I recommended that. I recalled my own experience as a prosecutor or as a judge. Mandatory, minimum sentences have caused some very real problems, in my view, historically. It’s not something I see as black and white. I see no problem for mandatory minimum sentence for murder. But I lived through an era when we had mandatory minimum sentences, for instance, importing a narcotic. I recall sentencing a man who was 21, second-year university, and he brought five marijuana cigarettes into the country. I sentenced him to seven years in prison because that was the mandatory minimum. That is not justice. There are so many nuanced areas. I can’t imagine sexual abuse where there shouldn’t be revocation. But sexual misconduct can occur in some very unusual circumstances and does that of necessity mandate revocation? You can end up with an injustice with a mandatory minimum, and I know that’s not popular today with the federal government, and probably not with the provincial government, but that’s my view and that’s why I expressed it.

MAHONEY: The language used in the report of sexual abuse and sexual misconduct was deliberate for that very reason. The legislation as it is presently drafted uses sexual abuse but does not define it. In other self-regulating professions, I believe it’s under the regulated health procedural code or under the bylaw of the College of Physicians and Surgeons, they define what type of sexual misconduct results in revocation. As the legislation is currently drafted, sexual abuse is not defined with any degree of particularity, which is why perhaps there is such a range in the penalties that have been given for the conduct. We reviewed a lot of those cases and there was quite a divergence in the penalties given. So the wording in the report was to focus on those types of cases and to suggest, perhaps, that it will be further studied and that further study is warranted.

You recommended that our Dispute Resolution process should be enforced in legislation. Can you talk about that?

LeSage: In the years I was a Crown attorney, going back to the ’60s, people were shocked to learn that there were plea discussions going on between the Crown and the defence. The press made a lot about it. The reality is that, directly or indirectly, that is how the vast majority of cases are resolved, between the prosecutor and the defence counsel. So we regularized it with rules. Eventually it became part of the Criminal Code, so now people don’t say it’s shocking. I’ve had first-degree murder cases come before me where Crown and defence agreed and said this is what we recommend happen. There’s nothing wrong with doing it. If the result of the plea discussion ends up with the adjudicator and is put into effect, by necessity it must be explained why this disposition is being recommended.

MAHONEY: As an aside, perhaps a new title for the system would be a good thing, — because it’s a bit misleading. It’s a complaint resolution system. If the public understands what the system is and they know that these are the rules going in, they’ll accept it.

LeSage: They may not agree with the result you come up with, but they accept the process. That’s important because it is the public system.

Can you talk a little about self-regulation? People don’t have a real sense of what it is.

LeSage: That’s a difficult question; I’m not an expert in the area. The concept of self-regulation is somewhat unusual in a democratic society, but it works and has worked for many, many years. I think it’s at the stage that if self-regulators are accountable and transparent, the public will accept self-regulation. The public at large doesn’t have a say in who is the Council and who the actual people are, but the system is accountable to the legislature because the legislature creates it. That’s what makes it accountable and, if it’s transparent, I think the public generally accepts it.

What does it mean to work in the public interest?

LeSage: The College’s Public Interest Committee prepared a very extensive and good report on that very question. There’s no simple or easy answer to it. However, it is sort of the essence of our democracy. I believe that public interest is what our form of democracy is based on. We, the citizens, create a structure to act on our behalf — the public’s behalf — so we elect you and your job is to ensure that what you do is consistent with the public interest.

You quoted former Registrar Joseph Atkinson in the report saying, “My wish is for the College to guarantee to the public that there is a certified, qualified teacher in every classroom, that they are competent and that the students are safe in the charge of these people.” What about that quotation resonated with you?

LeSage: We tried to find an expression to incorporate in the report. I thought it summed up our view of the education system. It’s not a comprehensive view, but it goes to the core of the essence of teaching. To me, the way he summed it up is the way most of the citizens of our country, of this province, would agree.

MAHONEY: It’s a simple summary of what the College’s role in the system is, and if the College, at the end of the day, can look at what it does and, if these recommendations are adopted, it will be a lot closer to achieving those goals.

Were there any difficult hurdles in the process of the review?

MAHONEY: I thought it was remarkable how helpful everybody was. There was a myriad of different perspectives and positions that people were advancing, but there weren’t any difficulties.

LeSage: There was very little defensive reaction or commentary. We laid out what the issues were and people were positive. We met with the Discipline Committee, with the Investigation Committee, with Fitness to Practise, and they were positive. We didn’t talk about what might have happened in the past. We talked about how the system could be better.

MAHONEY: Everybody started from the premise that the system needed to improve. Everybody moved forward from that. People didn’t take a defensive position. I think the best part of the review was putting people in a room in roundtables — different stakeholder groups in the same room together. There was such an education and dialogue that happened, even from different school boards across the province, with people explaining the process they go through and how it diverged from other people’s processes. Or, they said something that resonated with somebody else who hadn’t thought of it. There was communication in those meetings that I don’t think happened previously in these groups. I believe that that’s the great work that Pat does. He brings people together, notwithstanding whether recommendations are adopted. People have met each other and I believe that they will continue to improve things whether the government makes changes to the legislation.

If the recommendations are implemented, where do you see the College five or 10 years from now?

LeSage: I see the College being better recognized, accepted and understood.

MAHONEY: I think it’s heading in the right direction. It’s the largest College and has the largest body of members and it can do great work. It’s such an important institution.

LeSage: If it’s perceived to be operating in the public interest, it should continue.

Having gone through this review, is there a message you would give to parents? What do people need to know about the College?

LeSage: I think you need to explain who you are, what you do and how you do it. What is the College’s mandate? Try, to the extent you can, to delineate what matters are preferable to be dealt with by the school, by the board or by the College. There’s not going to be clear lines, because a lot of things can be dealt with in more than one area. But what is the preferred course? You do have the right to come directly to the College, but is this a matter that you want to raise with the school or the board instead?

Is this a watershed moment? What happens if none of the recommendations go forward?

LeSage: Bluntly, look at British Columbia. (The BC College of Teachers was recently dissolved by the British Columbia government.)

MAHONEY: What I say to that is, what a wasted opportunity. It would be a shame because there’s lots of good work that goes on at the College. I think the recommendations are extremely reasonable, well-founded and very positive. If they’re embraced, then you’ll end up having an institution that can truly do what the former Registrar said it can do. It’s achievable. The College can get past the bad publicity if it wants to.

LeSage: It will.

* Patrick LeSage and Lynn Mahoney practise law at Gowling Lafleur Henderson LLP.

Council approves LeSage recommendations

Council approved recommendations at its June 7–8 meeting that will result in significant changes to its discipline practices.

Council approved 43 of the 49 recommendations in an independent 76-page report from the Honourable Patrick LeSage CM, OONT, QC, who reviewed the College’s investigation and discipline processes and practices, including Dispute Resolution, over nine months.

Six recommendations were referred to the Investigation, Discipline, Fitness to Practise and Quality Assurance committees to study the operational implications and report back in November.

More than half of the recommendations require changes to Ontario legislation. The College has forwarded 26 of the 49 recommendations to Ontario’s Minister of Education for action.

“We’re ready to work closely with the government to help rewrite the laws that we’ve been working under for the last 15 years,” says Council Chair Liz Papadopoulos, OCT.

The recommendations require additions or amendments to provincial legislation, regulations, policy and College bylaws. Some recommendations serve to enshrine in law College practices that are already in place such as having the public register — Find a Teacher — online.

The concept of self-regulation is somewhat unusual in a democratic society, but it works and has worked

for many years. it’s at the stage that if self-regulators are accountable and transparent, the public will accept self-regulation.

Once implemented, the changes will ensure that the College:

“We’re grateful for the honest, open assessment of our practices and we’re moving fast to improve the way we work and communicate,” says College Registrar and CEO Michael Salvatori, OCT. “This is about greater efficiency and transparency — all in the name of protecting the public interest and Ontario students.”

The full report and backrounder are available at

For more on Council’s actions to follow up on the LeSage report.