Ontario College of Teachers v. Dumais, 2012 ONOCT 13

DISCIPLINE COMMITTEE OF THE ONTARIO COLLEGE OF TEACHERS

Citation: Ontario College of Teachers v Dumais, 2012 ONOCT 13

Date: 2012-02-09

IN THE MATTER OF the Ontario College of Teachers Act, 1996, and Ontario Regulation 437/97 thereunder;

AND IN THE MATTER OF a discipline proceeding against Paul André Dumais, a member of the Ontario College of Teachers.

PANEL: Robert Gagné

Darlene Mead, OCT

Ruth Ann Penny, OCT

BETWEEN: ) Christine Lonsdale and Lisa Filgiano, ) McCarthy Tétrault LLP,

ONTARIO COLLEGE OF TEACHERS ) for Ontario College of Teachers,

• and - )

PAUL ANDRÉ DUMAIS ) The Member was in attendance but was not

(CERTIFICATE #443535) ) represented by counsel at the hearing

) Paul Marshall,

) Emond Harnden LLP,

) Independent Legal Counsel

) Heard:

) November 23, 2011

REASONS FOR DECISION, DECISION AND ORDERS

This matter came on for hearing before a panel of the Discipline Committee (the "Committee") on November 23, 2011, at the Ontario College of Teachers ("the College") at Toronto.

A Notice of Hearing dated February 23, 2011, was served on Paul André Dumais, instructing him to appear before the Discipline Committee of the College on March 8, 2011, to set a hearing date. The hearing was scheduled for November 23, 2011.

Paul André Dumais was in attendance at the hearing but was not represented.

ALLEGATIONS

The allegations brought against Paul André Dumais in the Notice of Hearing (Exhibit 1) dated February 23, 2011, are as follows:

IT IS ALLEGED that Paul André Dumais is guilty of professional misconduct, as defined in subsection 30(2) of the Ontario College of Teachers Act, in that:

a) he failed to maintain the standards of the profession, contrary to Ontario Regulation 437/97, subsection 1(5);

b) he contravened a law relevant to his suitability to hold a certificate of qualification and registration, contrary to Ontario Regulation 437/97, subsection 1(16);

c) he contravened a law that caused or may cause a student who is under a member’s professional supervision to be put at or to remain at risk, contrary to Ontario Regulation 437/97, subsection 1(17);

d) he committed acts that having regard to all the circumstances would reasonably be regarded by members as disgraceful, dishonourable or unprofessional, contrary to Ontario Regulation 437/97, subsection 1(18); and

e) he engaged in conduct unbecoming a member, contrary to Ontario Regulation 437/97, subsection 1(19).

OVERVIEW

1. Paul André Dumais (the “Member”) is a member of the College.

2. At all times during the relevant period, the Member was employed by the Conseil des écoles publiques de l’Est de l’Ontario (the “Board”) as a teacher at École élémentaire publique Jeanne-Sauvé (the “School”) in Ottawa.

3. On February 6, 2009, the Member had child pornography in his possession.

4. On March 23, 2009, the Member was arrested and charged with possession of child pornography (Criminal Code, sect. 163.1(4).

5. On September 8, 2010, the Member pleaded guilty to the offence of possessing child pornography (Criminal Code, sect. 163.1(4).

6. On January 11, 2011, the Member was sentenced to nine months in prison and to one year of probation.

7. The aforesaid criminal charges are public knowledge because of the media coverage they received.

MEMBER’S PLEA

The Member did not deny the allegations stated in the Notice of Hearing.

EVIDENCE

Evidence Presented by the College:

Counsel for the College submitted the following documents:

Member’s Information Sheet (Exhibit 2)

Paul André Dumais is a member of the Ontario College of Teachers, as stated in the Member’s Information Sheet.

Collection of Legal Documents – Her Majesty the Queen v. Paul André Dumais (Exhibit 3)

This document contains certified copies of:

A. Information from the Court – March 24, 2009

B. Indictment – January 26, 2010

C. Probation Order – January 10, 2011

This document also includes:

D. Decision of the Honourable Madam Justice Ratushny – January 10, 2011

The Collection of Legal Documents is the initial evidence used by Counsel for the College in support of her arguments.

Counsel for the College noted the following facts:

a) The Member was arrested on March 23, 2009, and was charged with possession of child pornography under section 163.1(4) of the Criminal Code (Exhibit 3, Tab A).

b) The Member pleaded guilty to the offence of possessing child pornography under section 163.1(4) of the Criminal Code (Exhibit 3, Tab B).

c) The Member was sentenced to nine months in prison and to one year of probation (Exhibit 3, Tab C).

In the transcript of her oral decision (Exhibit 3, Tab D), Judge Ratushny noted that:

“It was discovered that his peripheral computer devices had 170 pictures and 44 films of a pornographic nature depicting sexual activities (fellatio, penetration and voyeurism) involving intimate parts of the bodies of young girls.”

Counsel for the College quoted Judge Ratushny: “Child pornography is a serious crime; by downloading and having these images in his possession, Mr. Dumais participated in the repeated victimization of the unfortunate children shown in the photographs. He watched their unending virtual rape. By taking these images for his own use, he also participated in the market created by this type of odious crime and encouraged the exploitation thereof. As a result, he unknowingly spurred other people on to victimize even more children and to carry out the same act of violence on them.”

Evidence Presented by the Member:

The Member presented no admissible evidence at the hearing.

DECISION

Having reviewed the relevant and admissible exhibits together with the submissions of Counsel for the College and of the Member’s counsel, the Committee finds that the facts support a finding of professional misconduct. In particular, the Committee finds that Paul André Dumais committed an act of professional misconduct, being more particularly breaches of Ontario Regulation 437/97, subsections 1(5), 1(16), 1(17), 1(18) and 1(19), as set out in the Notice of Hearing.

REASONS FOR DECISION

The Committee may, at its discretion, admit the transcripts of proceedings resulting in a guilty verdict for a person, and may accept as proof the specific findings of fact indicated in the grounds for the decision and sentencing before a court in Canada (Rules of Procedure of the Discipline Committee and of the Fitness to Practise Committee, Rules 13.03 and 13.04).

The Member pleaded guilty to the offence of possessing child pornography (Criminal Code, section 163.1(4)) on January 10, 2011, before the Superior Court of Justice of Ontario.

The Member was sentenced to nine months in prison and to one year of probation.

Given that the Member pleaded guilty to criminal charges and considering the sentencing and penalty imposed on him, the Committee finds that he committed professional misconduct.

SUBMISSIONS OF THE COLLEGE

Submissions Presented by the College:

Counsel for the College indicated in her submissions that:

1. Possession of child pornography is a crime, regardless of the number of pictures or videos.

2. In this case, there were 170 pictures and 44 videos of a graphic nature, including some with instances of violence. This is an offence warranting revocation of the certificate of qualification and registration.

3. It is important that this crime be exposed; this is a serious offence that needs to be a deterrent to the teaching population and to the Member.

4. The Committee has the responsibility of protecting the reputation of the teaching profession.

5. Revocation and publication of the Member’s name in Professionally Speaking/Pour parler profession will send a clear message to the profession and protect the public interest.

SUBMISSION OF THE MEMBER

Submissions Presented by the Member:

The Member set out the following points in his submissions:

1. He accepts responsibility for his actions; he is sorry that he did what he did and will regret it for the rest of his life. He admits that what he did was seriously blameworthy and that he has learned a “very hard lesson.” He has not taught for two years. He has already been punished for his actions and has sustained considerable loss. He now has a criminal record and feels humiliated in front of his colleagues, family and friends.

2. He viewed all the digital pictures on his personal home computer and carried out none of these actions at school.

3. The Member also stated that he had no malicious intention in viewing these pictures; instead, he said that he was curious and wanted to have a better understanding of the problems and suffering of the children victimized by this type of abuse. The Member continued his explanation, acknowledging that his intentions were good but poorly thought out and amounted to an error of judgment.

4. He has never received a complaint from the community during his teaching career.

5. According to the Member, possession of child pornography does not necessarily involve a danger for students.

6. The Member indicated that the Honourable Madam Justice Ratushny of the Superior Court of Ontario stated in her decision that, in her view, he did not use these pornographic pictures to satisfy his sexual deviance and agreed that the Member is not a pedophile. The Court judgment does not ban him from being around children.

7. The Member is undergoing therapy at the Sexual Behaviours Clinic in the Royal Ottawa Mental Health Centre and is continuing to attend these sessions twice a month of his own free will, even though the order issued by Judge Ratushny of the Superior Court of Ontario stipulates that he report to the clinic only once a month. Dr. Federoff, who is his physician at the clinic, carried out a psychiatric assessment of the Member and found that the Member is not at risk of committing the same actions again.

The Member also submitted his objection to two matters. In the first place, he does not think he has contravened a law that causes or may cause a student who is under a member’s professional supervision to be put at or to remain at risk, as stated in Ontario Regulation 437/97, subsection 1(17). In the second place, he tried to make a distinction between the legal terms “child” and “juvenile.” In the Notice of Hearing (Exhibit 1), the College elected to use the term “child” to describe the charge of possession of pornography. According to him, the term “child” is not relevant in describing his case. He pointed out that the criminal court uses “juvenile” rather than “child.”

ADVICE OF INDEPENDENT COUNSEL

The independent counsel made the following points:

1. The Member did not deny the allegations stated in the Notice of Hearing.

2. The Committee needs to have a clear understanding of the difference between the evidence and submissions of the College and of the Member.

3. The Member did not present any evidence of his own, but it must be acknowledged that the submissions do carry a certain weight.

4. The Supreme Court of Canada has ruled that a decision made by another tribunal cannot be reviewed or contested.

PENALTY AND ORDER

The Discipline Panel makes the following Order:

1. The Committee directs the Registrar of the Ontario College of Teachers to revoke the certificate of qualification and registration of Paul André Dumais.

2. The Discipline Committee requires that a summary of its Decision and Order appear in Professionally Speaking/Pour parler profession and that the Member’s name be published as it appears in the College’s public register.

REASONS FOR DECISION ON PENALTY AND ORDER

The Committee accepts the Member’s admission of guilt before the Superior Court of Justice of Ontario. The Committee also accepts the interpretation of the Honourable Madam Justice Ratushny that child pornography is a serious offence.

When the Member decided to download these pictures and videos, he did indeed take part in the victimization of children – a serious crime. Through his downloading of these images, he

was encouraging a market that promotes the abuse of children and indeed puts all children in danger.

It is therefore the opinion of the Committee that the Member not only contravened a law relevant to his suitability to hold a certificate of qualification and registration, contrary to Ontario Regulation 437/97, subsection 1(16), but that he also contravened a law that caused or may cause a student who is under a member’s professional supervision to be put at or to remain at risk, contrary to Ontario Regulation 432/97, subsection 1(17).

Because of his conduct and admission of guilt and because of the nature of the offence and all the circumstances of this matter, it is the opinion of the Committee that the Member has lost the privilege of being a member of the teaching profession.

The Committee finds that revocation and publication of the Member’s name in the official publication of the College, Professionally Speaking/Pour parler profession, are appropriate in the circumstances and will serve and protect the public interest. The public needs to know that a member of the teaching profession who engages in such conduct will be subject to the most serious consequences.

Publication acts as a specific deterrent to the Member and as a general deterrent to members of the profession.

Date: February 9, 2012

Robert Gagné,

Chair, Discipline Panel

______________________________,

Darlene Mead, OCT,

Member, Discipline Panel

Ruth Ann Penny, OCT,

Member, Discipline Panel