IN THE SUPREME COURT OF BRITISH COLUMBIA
Reasons for Judgment
INTRODUCTION [1] Mr. Stuart appeals two decisions of the Discipline Sub-Committee and a decision of the Council of the British Columbia Teachers' College (the "College") that found him guilty of professional misconduct, and conduct unbecoming a teacher. He argues that they failed to consider, or give adequate weight, to the role that his medical condition of bipolar disorder, complicated by a change of medication, played in his conduct. In other words, that they treated the offences as absolute liability offences in which the mental element was irrelevant. BACKGROUND [2] Mr. Stuart is a teacher who is on a stress-related medical leave. He qualified as a teacher in 1993, and appears to have fulfilled his professional responsibilities without difficulty. He has been on stress leave since January 2002. He was diagnosed with bipolar disorder (type I), when he was approximately 21 years of age. He successfully completed his education and was a teacher for a number of years, being able to manage this disease. [3] He was suffering from mania characterized by agitation, pressured speech, flight of ideas, poor concentration, anger outbursts, poor impulse control and sleeplessness in February 2002. His medication was changed on February 15, 2002, and within six to eight weeks he still felt agitated, angry, elated and unable to cope with stress. His feelings of mania were treated with Lithium carbonate in May 2002. [4] Mr. Stuart tried to telephone a former student a number of times, beginning February 18, and did speak to the student on the telephone on February 24, 2002. He also spoke to her boyfriend on February 24, 2002. Mr. Stuart screamed garbled profanities at her boyfriend. He also screamed profanities at the former student when she took the telephone. This led to the citation for conduct unbecoming a teacher. [5] Mr. Stuart attended at the school on June 17, 2002, as the school day was ending. He attended to obtain his personal belongings, but became involved in a verbal confrontation with school staff, including using profanities. He drove his vehicle in an erratic, stop and go manner, in the parking lot, while students and parents were in the lot. He had a verbal and physical confrontation with the police officer and was subdued by the use of a tazer. He was charged with assaulting a peace officer, resisting a peace officer and dangerous driving. He pleaded not guilty to those offences, but guilty to the included offence of causing a disturbance contrary to s.175(1)(a)(i) of the Criminal Code of Canada. He was given a conditional discharge. These actions resulted in a citation for professional misconduct. [6] The citation for professional misconduct arising from the June 2002 incident was issued on May 26, 2003. It states: . while on leave from your employment as a teacher at Princess Margaret Secondary School (the "school") in Surrey, British Columbia, and while school was in session, you acted inappropriately by: a. Attending your former classroom at the school, acting unprofessionally and uttering profanities; b. Acting in a publicly confrontational and threatening manner with teachers and administrators of the school; c. Driving your vehicle in the school parking lot in a dangerous and erratic manner; d. Engaging in abusive verbal behaviour with a member of the RCMP on the school grounds; e. Engaging in a physical confrontation with a member of the RCMP on the school grounds; [7] In addition, that while on the school grounds: . you caused a criminal disturbance, to which you pleaded guilty and for which you were given a conditional discharge with 18 months of probation and 9 conditions of probation. [8] The citation makes it clear that the College could terminate his membership in the College and cancel his teaching certificate. [9] The citation for conduct unbecoming arising from the February telephone call was issued September 11, 2003, and it states: During the month of February 2002, while you were a teacher at Princess Margaret Secondary School in Surrey, B.C., you engaged in unprofessional and inappropriate behaviour with MG, a student at that school. Your behaviour included: a. Touching of her face in an inappropriate way; [this allegation was dismissed] b. Attempting, on numerous occasions, to visit with her and speak to her after school hours; c. Making inappropriate phone calls to her late at night and using profane language with both her and her companion. [10] The citation again makes it clear that the College could terminate his membership in the College and cancel his teaching certificate. [11] The hearing of the professional misconduct citation proceeded on December 9, 2003. It proceeded on an agreed statement of facts. The decision was rendered January 13, 2004. Mr. Stuart was found guilty of professional misconduct. [12] The hearing of the conduct unbecoming citation proceeded on January 15, 2004, on an agreed statement of facts. Mr. Stuart was found guilty on January 15, 2004 of conduct unbecoming. There was no finding of inappropriate touching. [13] The College Council of the British Columbia College of Teachers met on May 7, 2004, and considered the recommendations and reasons of the hearing sub-committee and the submissions of Mr. Stuart dated March 18, 2004. The College adopted the recommendations and reasons of the hearing sub-committee. [14] Mr. Stuart agreed that his actions alone were sufficient to justify a finding of professional misconduct and conduct unbecoming, if there is no requirement for a mental element to these offences. However, he argues that these citations do require a mental element to be proven by the College. He argues that the agreed statement of facts demonstrates that he lacked the necessary mental capacity to commit the offences, or that the necessary mental element has not been proven. [15] Mr. Stuart argued that the College should have dealt with the matter as an issue of competency. [16] Counsel for Mr. Stuart and counsel for the College, who appeared at the College proceedings (different counsel appeared for the College before me), agreed with the disposition whether the matter were treated as a competency issue, or a conduct issue. Mr. Stuart argues, before me, that the |