FILE PHOTO: Deborah Ashton departs the Vernon courthouse during her perjury trial in 2013.

(CHARLOTTE HELSTON - REPORTER / iNFOnews.ca)

A former Vernon teacher says she was unfairly fired from her job as a youth worker after a criminal record check showed she was previously charged — and eventually acquitted — of sexual assault against a male student.

Deborah Ashton, 53, filed a complaint against the Ministry of Children and Family Development and its contractor, IDM Youth Services, after being terminated roughly three months after starting work at a residential care facility for girls. Ashton, who went through three high profile trials for allegations that she slept with a Grade 7 student, claims that she was discriminated against by her employer on the basis of prior criminal conviction and mental disability.

In a B.C. Human Rights Tribunal ruling from May 11, the Ministry’s application to have Ashton’s complaint dismissed was denied and the case was deemed worthy of a hearing.

According to tribunal documents — which outline the circumstances but make no findings of fact — Ashton was hired by IDM in October of 2015. At that time, IDM advised the Ministry that Ashton had a criminal record and as a result, would only be working with female youth. As part of the hiring process, IDM said it needed approval from the Ministry for her employment and a social worker asked for Ashton’s consent for a criminal record check. Ashton completed a consent form and noted that she was charged with sex assault and acquitted, and that she was charged with perjury and found not guilty. Ashton's first trial on the sexual assault and sexual interference charges ended with a hung jury in 2011. She was acquitted in a second trial in 2012. In 2013, she was found not guilty on two counts of perjury that stemmed from her testimony at trial.

The records check returned negative results for the “vulnerable sector check for pardoned sexual offences” and noted the acquittals and not guilty verdicts on all of Ashton’s charges. After receiving the records check, the Ministry requested a meeting with Ashton to “obtain further information regarding the circumstances of the charges, their outcome, and Ms. Ashton’s personal history since the time of the charges in order to make a determination of whether the charges posed any risk to the safety and well-being of children in the care of MCFD.”

The Ministry says in tribunal documents that Ashton spoke freely about the charges during the meeting but was “agitated and upset when discussing the matter, crying for much of the meeting.” Ashton refutes this in tribunal documents, saying she was not agitated, rather, she “did cry during a part of the meeting when discussing how the charges and court proceedings had affected her own children.”

After the meeting, Ministry staff discussed how they did not believe they could consider the risk of Ashton repeating the behaviour for which the charges were laid, because she was acquitted of all charges, the tribunal ruling states.

“However, they did note that “she was still significantly affected by the events relating to the criminal charges and the trial processes, that the impact on her was traumatic and ongoing, and that she felt compelled to share her experience.” They discussed their mutual concern that Ashton may not maintain appropriate boundaries. In their assessment, they did not consider her to be emotionally stable, determining that “this could pose a risk to the safety or well-being of a child in care, particularly if she discussed her experiences with a child who may be a victim of sexual abuse,” the tribunal says.

Ashton says she was never given a chance to respond to their concerns and was told that because she would be working at an all girls facility, the charges weren’t likely to be a problem.

The Ministry says it expressed its concerns to IDM in late December or early January 2016 but did not direct it to terminate Ashton’s employment. The social worker says IDM had their own concerns and he expected an upcoming services change may result in staffing changes during which IDM would “perhaps not keep Ms. Ashton on.”

On Jan. 21, 2016, Ashton was fired by IDM. When she asked why, she says she was told it was due to a shortage of available hours for staff. She offered to work in the casual pool of employees, but says IDM told her that wasn’t possible and repeatedly said it was “too great a risk” to keep her on, according to tribunal documents. She was denied a meeting with the Ministry social worker and says after her termination, several new youth workers were hired for her position.

In her complaint, Ashton argues that because she was acquitted, the charges are irrelevant to her employment. The Ministry claims that the charges did not influence IDM’s decision to terminate Ashton, and even if they were, there would be no discrimination because the charges are related to the employment. It states that the circumstances of the charges, the particulars of the allegations involved, the time elapsed since the conclusion of the criminal proceedings and Ashton’s ongoing trauma led to its conclusion that she may pose a risk to the safety and well-being of children in care.

Tribunal member Emily Ohler said the human rights code protects against discrimination stemming from a conviction for an offence that is unrelated to the employment, but pointed out Ashton may not be covered because of the acquittal and resulting lack of a criminal conviction.

“A second problem is that an acquittal does not necessarily mean that the events at the heart of the charges did not occur, or cannot otherwise give rise to an enquiry, particularly where vulnerable persons are involved,” Ohler says.

She says an acquittal from criminal charges may affirm the innocence presumptively afforded to a person, but employers must look at things differently.

“An employer has a different set of obligations to its various stakeholders in protecting their respective interests than the state has in seeking to deprive someone of their liberty under the Criminal Code,” she says.

Ohler says there are important questions that need to be addressed, such as an employer’s obligations to consider the circumstances around charges and what happens if the person is acquitted.

Ashton did not respond to a request for comment, and the Ministry’s lawyer refused to speak about the case. A spokesperson for the Ministry of Children and Family Development says in a written statement that background and criminal record checks are required for any position that directly delivers services to children and families. Speaking generally, the spokesperson says they would consider all aspects of the criminal record check – charges, as well as convictions.

"In circumstances where an applicant has been acquitted of past charges, we would need to weigh a number of factors, including: the  nature and the circumstances of the charges, the reasons for the acquittal, and the nature of employment being sought," the spokesperson says.

The Ministry also checks its child protection database to ensure the individual has not previously placed children at risk.

"Our paramount consideration is always the safety and well-being of children and youth. We would take appropriate steps to ensure that anyone who is deemed unsafe or unfit does not work with vulnerable young people," the Ministry says. 

The tribunal has not yet released a date for Ashton’s hearing.

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