DISCIPLINE COMMITTEE OF THE ONTARIO COLLEGE OF TEACHERS

Citation: Ontario College of Teachers v Maycock, 2012 ONOCT 44

Date: 2012-11-15

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

AND IN THE MATTER OF a discipline proceeding against

John Roy Maycock, a member of the Ontario College of

Teachers.

PANEL: Irene Dembek, OCT, Chair Pauline Smart

Wes Vickers, OCT

BETWEEN: ) ) Caroline Zayid,

) McCarthy Tétrault LLP, ) for Ontario College of Teachers,

ONTARIO COLLEGE OF TEACHERS ) assisted by Bev Hodsdon,

) Law Clerk )

• and – )

) John Roy Maycock was not

) present, nor was he represented

JOHN ROY MAYCOCK )

(CERTIFICATE #241938) )

) Rebecca Durcan,

) Steinecke Maciura LeBlanc, ) Independent Legal Counsel ) ) Heard: October 16, 2012

DECISION, REASONS FOR DECISION, AND ORDERS

This matter came on for hearing before a panel of the Discipline Committee (the “Committee”) on October 16, 2012 at the Ontario College of Teachers (“the College”) at Toronto.

The hearing was scheduled for 11:00 a.m. on October 16, 2012. The Committee waited until 11:35 a.m. to begin the hearing to allow the Member time to attend; however, the Member did not appear, nor was he represented. The Committee proceeded in the Member’s absence.

A Notice of Hearing (Exhibit 1), dated June 25, 2012 was served on John Roy Maycock, requesting attendance before the Discipline Committee of the Ontario College of Teachers on August 30, 2012 to set a date for a hearing, and specifying the charges. The hearing was subsequently set for October 16, 2012.

College Counsel submitted an Affidavit of Service of Daniela De Bartolo, Litigation Paraprofessional at McCarthy Tétrault, sworn August 29, 2012 (Exhibit 2) outlining written communications she sent to the Member with respect to the allegations made against him, the set date hearing procedure and his ability to make submissions and participate in the hearing. College Counsel tendered an Affidavit of Attempted Service of Norman Ng, Process Server, sworn June 29, 2012 (Exhibit 3) and an Affidavit of Attempted Service of Donald Wilkinson, Process Server, sworn July 4, 2012 (Exhibit 4), to further document the attempts made to personally serve the Notice of Hearing and other materials on the Member. In addition, College Counsel submitted an Affidavit of Daniela De Bartolo sworn October 12, 2012 (Exhibit 5), which detailed all attempts made to notify the Member of the scheduled hearing date. Attached to Exhibit 5 and found at Tab A is a copy of a letter from Daniela De Bartolo to the Member dated September 18, 2012 advising the Member of the scheduled hearing date. Attached to Exhibit 5 and found at Tab C is a copy of a Federal Express Receipt, which indicates that a package (containing the letter found at Tab A) shipped from McCarthy Tétrault LLP was delivered to and signed for by J. Maycock on September 20, 2012. Attached to Exhibit 5 and found at Tab D is a copy of a Canada Post receipt, which indicates that a package (containing the letter found at Tab A) sent by McCarthy Tétrault LLP was delivered to and signed for by John Roy Maycock on September 23, 2012. The Committee was satisfied that the Member was properly served with the Notice of Hearing and all disclosure documents and was aware of the time and date of the hearing. The Committee therefore proceeded to hear the matter in the absence of the Member.

THE ALLEGATIONS

The allegations against John Roy Maycock (“the Member”) in the Notice of Hearing are as follows:

IT IS ALLEGED that John Roy Maycock is guilty of professional misconduct as defined in subsection 30(2) of the Ontario College of Teachers Act (the “Act”), in that:

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

(b) he failed to comply with the Education Act, Revised Statutes of Ontario, 1990, chapter E.2, and specifically subsection 264(1)(c) thereof, contrary to Ontario Regulation 437/97, subsection 1(15);

(c) he contravened a law, the contravention of which is relevant to the Member’s suitability to hold a Certificate of Qualification and Registration, contrary to Ontario Regulation 437/97, subsection 1(16);

(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).

PARTICULARS OF THESE ALLEGATIONS ARE AS FOLLOWS:

1. John Roy Maycock (the “Member”) is a member of the Ontario College of Teachers.

2. At all material times, the Member was employed by the London District Catholic School Board (the “Board”) as a teacher at St. David’s Elementary School (the “School”) in Dorchester, Ontario.

3. On or about June 23, 2009, the Member was in possession of child pornography in that he had on his home computer:

(a) child pornography videos;

(b) child pornography images.

4. On or about June 24, 2009, the Member was charged by the London Police Service that he on or about June 23, 2009 at the City of London in the Southwest Region did, without lawful excuse, possess child pornography in the form of a computer image file, contrary to Section 163.1, subsection (4) of the Criminal Code (Canada).

5. On or about August 31, 2011, the Member pleaded guilty to the charge described in paragraph 4 above.

6. On or about November 21, 2011, the Member was sentenced to nine (9) months incarceration followed by two (2) years of probation.

7. The Member has not appealed the conviction and/or sentence.

MEMBER’S PLEA

As the Member was neither present nor represented by counsel, the Committee proceeded on the basis that the Member denied the allegations set out in the Notice of Hearing. The Chair, on behalf of the Member, entered a plea of not guilty to the allegations.

THE EVIDENCE

Counsel for the College entered into evidence the following additional documents:

Registered Member Information (Exhibit 6);

Brief of Court Documents-Her Majesty The Queen v. John Roy Maycock (Exhibit 7);

The Brief of Court Documents (Exhibit 7) with respect to the criminal proceedings against the Member submitted into evidence consisted of:

1. Certified Copy of Indictment dated January 6, 2011 (Found at Tab A);

2. Certified Copy of Probation Order dated November 21, 2011 (Found at Tab B);

3. Certified Copy of Prohibition Order dated November 21, 2011 (Found at Tab C);

4. Certified Copy of Warrant of Committal on Conviction Sentence of Imprisonment dated November 21, 2011 (Found at Tab D);

5. Transcript of Proceedings at Guilty Plea before Mr. Justice W.U. Tausendfreund at London dated August 31, 2011 (Found at Tab E); and

6. Transcript of Reasons for Sentence before Mr. Justice W.U. Tausendfreund at London dated November 21, 2011 (Found at Tab F);

Criminal Information dated June 24, 2009 (Exhibit 8); and

Recognizance of Bail Taken by a Justice of the Peace (Exhibit 9).

The evidence presented in the Brief of Court Documents (Exhibit 7) confirmed that on August 31, 2011, the Member pled guilty to the charge of possessing child pornography in the form of a computer image file, contrary to section 163.1, subsection (4) of the Criminal Code (Canada). Further, the Member was convicted and sentenced on November 21, 2011 to 9 (nine) months in custody, 2 (two) years of probation and prohibited for a period of 10 (ten) years from:

a) attending a public park or public swimming area where persons under the age of sixteen years are present or can reasonably be expected to be present, or a daycare centre, school ground, playground or community centre; or

b) Seeking, obtaining or continuing any employment, whether or not the employment is remunerated, or becoming or being a volunteer in a capacity that involves being in a position of trust or authority towards persons under the age of sixteen years; or

c) Using a computer system within the meaning of subsection 342.1(2) for the purpose of communicating with a person under the age of sixteen years.

The Member has not appealed the conviction or sentence.

DECISION

Having considered the evidence, onus and standard of proof, and the submissions made by Counsel for the College, the Committee finds that the facts support a finding of professional misconduct. In particular, the Committee finds that John Roy Maycock committed acts of professional misconduct as alleged, more particularly breaches of Ontario Regulation 437/97, subsections 1(5), 1(15), 1(16), 1(18) and 1(19).

REASONS FOR DECISION

The law of evidence and Rules 13.03 and 13.04 of the Rules of Procedure of the Discipline Committee and of the Fitness to Practise Committee of the Ontario College of Teachers allow the Committee to accept as proof that an offence was committed by a person, where there is a finding of guilt and conviction in a Canadian court, provided that there is no evidence to the contrary and that no appeal has been granted. The Committee accepts as fact, as detailed in the court documents contained within Exhibit 7, that the Member pled guilty and was convicted of possessing child pornography in the form of a computer image file, contrary to section 163.1, subsection (4) of the Criminal Code (Canada). The conviction was entered on November 21, 2011.

The Member was sentenced on November 21, 2011 to 9 (nine) months in custody, 2 (two) years of probation and prohibited for a period of 10 (ten) years from being in the presence of any child under 16 (sixteen) years of age. The Member did not appeal the conviction or sentence.

The Committee finds that by being in possession of child pornography and being convicted of such possession, the Member committed acts of professional misconduct as alleged, more particularly breaches of Ontario Regulation 437/97, subsections 1(5), 1(15), 1(16), 1(18) and 1(19).

SUBMISSIONS ON PENALTY

As the member was not present or represented by counsel, the Committee treated the matter of penalty as contested. There were no submissions on penalty on behalf of the member.

College Counsel submitted that the appropriate penalty would include revocation of the Member’s Certificate of Qualification and Registration, and publication with name.

College Counsel provided three cases for review by the Committee, which demonstrated the degree of penalty application for similar behaviour.

College Counsel submitted that the proposed penalty meets the sentencing principles in that the components provide specific and general deterrence, and serves the public interest by denunciating this type of behaviour.

PENALTY

The Committee makes the following order as to penalty:

a) the Registrar of the Ontario College of Teachers is directed to revoke the Certificate of Qualification and Registration of the Member; and

b) the Committee directs that there be publication of the findings and order of the Committee, in summary form with the name of the member, in the official publication of the College Professionally Speaking/Pour parler profession.

REASONS FOR PENALTY

The Committee determined that a member who has been convicted of possession of child pornography and who is subject to conditions which do not allow him to be in the company of children under the age of 16 (sixteen) years, is not suitable to be in a position of trust and authority over children and must not be permitted to teach. Child pornography is one of the most serious crimes in our society. Possession of child pornography is a crime against children and perpetuates a market which thrives on the abuse of children. In his Reasons for Sentence, the Honourable Justice W. U. Tausendfreund stated: “one might argue that here there were 4000 plus innocent parties, that is children, and that is the insidious aspect of child pornography.” The public must be informed that a member of the teaching profession, who engages in this type of activity, will suffer the most serious of consequences.

The Committee ordered publication of the finding and order with the name of the Member in Professionally Speaking/Pour parler profession. Publication serves the public interest by informing the community that the profession acts decisively when matters of this nature are brought to its attention. It provides both a specific deterrent to the Member and a general deterrent to the profession while assuring the public that the College will not tolerate such egregious conduct.

In conclusion, the Committee is confident that the penalty serves the interest of the public and the profession and denounces such behaviour.

Dated: November 15, 2012

______________________________ Irene Dembek, OCT, Chair

Chair, Discipline Panel ______________________________ Pauline Smart Member, Discipline Panel

Wes Vickers, OCT

Member, Discipline Panel