Ontario College of Teachers v. Adams, 2013 ONOCT 2

DISCIPLINE COMMITTEE OF THE ONTARIO COLLEGE OF TEACHERS

Date: 2013-05-23

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

Stewart Montague Adams, a member of the Ontario College of Teachers.

PANEL: John Tucker, Chair Monika Ferenczy, OCT

Wes Vickers, OCT

BETWEEN: ) ) David Leonard,

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

ONTARIO COLLEGE OF TEACHERS ) assisted by Daniela De Bartolo,

) Litigation Paraprofessional )

• and – )

) Stewart Montague Adams was not ) present or represented

STEWART MONTAGUE ADAMS )

(CERTIFICATE #100893) )

) Julie Maciura,

) Steinecke Maciura LeBlanc, ) Independent Legal Counsel ) ) Heard: May 22, 2013

DECISION, REASONS FOR DECISION AND ORDERS

This matter came on for hearing before a panel of the Discipline Committee (the “Committee”) on May 22, 2013 at the Ontario College of Teachers (the “College”) at Toronto.

A Notice of Hearing (Exhibit 1), dated October 25, 2012 was served on Stewart Montague Adams, requesting his attendance before the Discipline Committee of the Ontario College of Teachers on December 11, 2012 to set a date for a hearing, and specifying the charges. The hearing was subsequently set for May 22, 2013.

The Member was not present nor was he represented.

College Counsel submitted into evidence an Affidavit of Beverley Hodsdon, sworn May 21, 2013 (Exhibit 2). The Affidavit confirmed that the Member had been properly served with the Notice of Hearing and Disclosure Brief.

Counsel for the Member, Mr. Loccisano, wrote a letter to College Counsel on behalf of the Member confirming that he had received instructions from the Member to advise the College that he did not wish to dispute the allegations; he understood that it was likely his teaching license would be revoked; and that he did not wish to participate or be present in any way at a hearing. Mr. Loccisano confirmed that the Member understood that the College would be asking for publication of the decision of the Committee which could include his full name in the official publication of the College. Mr. Loccisano informed College Counsel that the Member’s instructions were being made freely, voluntarily and with no undue influence (Exhibit 2, Tab D).

The Committee was satisfied that the Member was duly informed of the date and time of the hearing and proceeded with the hearing.

THE ALLEGATIONS

The allegations against Stewart Montague Adams (the “Member”) in the Notice of Hearing are as follows:

IT IS ALLEGED that Stewart Montague Adams is guilty of professional misconduct as defined in subsections 30(2) of the Ontario College of Teachers Act in that:

(a) he failed to comply with the Education Act, Revised Statutes of Ontario, 1990, chapter E.2, and specifically section 264(1) thereof or the Regulations made under that Act, contrary to Ontario Regulation 437/97, subsection 1(15);

(b) 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);

(c) he contravened a law the contravention of which may cause a student 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).

PARTICULARS OF THESE ALLEGATIONS ARE AS FOLLOWS:

1. At all material times, the Member was employed by the Toronto District School Board (the “Board”) as a teacher at [XXX] School (the “School”).

2. From in and around February 14, 2010 to in and around June 1, 2010, the Member:

(a) possessed child pornography;

(b) made available child pornography;

(c) accessed child pornography.

3. On or about July 13, 2011, the Member was found guilty of three (3) criminal charges: possession of child pornography, making available child pornography and accessing child pornography. The charge of making child pornography was withdrawn.

4. On or about January 18, 2012, the Member was sentenced by the Honourable Justice A. Tuck-Jackson to fifty-three (53) months in jail and three (3) years probation. He was also prohibited pursuant to section 161 the Criminal Code (Canada), from doing the following for a period of twenty (20) years:

(a) Attending a public park or a 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;

(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) of the Criminal Code (Canada), for the purpose of communicating with a person under the age of sixteen years.

5. The Member has not appealed the conviction or sentence.

MEMBER’S PLEA

As the Member was not present or 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

College Counsel entered into evidence the following additional documents:

Registered Member Information (Exhibit 3); and

Brief of Court Documents - Her Majesty The Queen v. Stewart Montague Adams (Exhibit 4).

The Brief of Court Documents (Exhibit 4) with respect to the criminal proceedings against the Member submitted into evidence consisted of:

1. Certified Copy of Information and Appearances and Recognizance of Bail (Found at Tab A);

2. Certified Copy of Probation Order dated January 18, 2012 (Found at Tab B);

3. Certified Copy of Prohibition Order dated January 18, 2012 (Found at Tab C);

4. Transcript of Court Proceedings before Madam Justice A. Tuck-Jackson dated July 13, 2011 (Found at Tab D); and

5. Transcript of Reasons for Sentence before Madam Justice A. Tuck-Jackson dated January 18, 2012 (Found at Tab E).

The evidence presented in the Brief of Court Documents (Exhibit 4) confirmed that on July 13, 2011, the Member pleaded and was found guilty of three charges: that he, between the 14^th^ day of February and the 1^st^ day of June in the year 2010, possessed, made available and accessed child pornography contrary to the Criminal Code (Canada). The count of making child pornography was withdrawn at the request of the Crown Attorney.

On January 18, 2012, the Member was sentenced to fifty-three (53) months in jail to be followed by three (3) years of probation. He was also prohibited pursuant to section 161 the Criminal Code (Canada), from doing the following for a period of twenty (20) years:

(a) Attending a public park or a 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;

(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) of the Criminal Code (Canada), for the purpose of communicating with a person under the age of sixteen years.

The Member’s actions were revealed through an undercover investigation conducted by the Toronto Police Service Child Exploitation Section, to determine users who were engaged in the possession and distribution of known child pornography files. The Police observed an Internet Protocol (“IP”) address which identified the subscriber of that IP address as the Member. The report identified this IP address as having been a download candidate for two hundred fifty-four (254) unique child pornography files.

SUBMISSIONS ON FINDING

College Counsel submitted the Brief of Court documents (Exhibit 4) in support of the allegations in the Notice of Hearing. The Member was represented by counsel in the criminal proceedings, where he pled guilty to the charges of possessing, making available and accessing child pornography.

College Counsel submitted that the Member had amassed a shockingly vast amount of child pornography. In total, there were 192,327 images of children, 677 child pornography videos and 37 child pornography movies located on various digital devices. Moreover, College Counsel added that the Member had made his collection available to broader distribution via a peer-to-peer network.

College Counsel concluded that given the Member’s admission of guilt in the criminal proceedings, subsequent conviction and the amassing and sharing of this collection over the Internet, there was no doubt that the Member was guilty of professional misconduct. The College has met its onus to prove on a balance of probabilities that the conduct occurred, the allegations were proven and the Committee was bound to accept the findings of the Criminal Court judge.

PUBLICATION BAN

A non-publication order was issued under subsection 486.4 of the Criminal Code (Canada), in the proceedings in the Ontario Court of Justice. The Committee is therefore required to uphold this publication ban imposed in the matter of Her Majesty The Queen v. Stewart Montague Adams by the Ontario Court of Justice. There shall be no publication of any information that might tend to identify the victims involved in this matter.

DECISION

Having considered the evidence, onus and standard of proof, and the submissions made by College Counsel, the Committee finds that the facts support a finding of professional misconduct. In particular, the Committee finds that Stewart Montague Adams committed acts of professional misconduct as alleged, more particularly breaches of Ontario Regulation 437/97, subsections 1(15), 1(16), 1 (17), 1(18) and 1(19).

REASONS FOR DECISION

The Committee accepts as fact, as detailed in the Brief of Court Documents contained within Exhibit 4 that on July 13, 2011, the Member was convicted of possessing, making available and accessing child pornography.

On January 18, 2012 the Member was sentenced to fifty-three (53) months in jail to be followed by three (3) years of probation.

The Member was also prohibited pursuant to section 161 the Criminal Code (Canada), for a period of twenty years from being in the presence of persons under the age of sixteen, seeking employment or volunteer opportunities that involve being in a position of trust or authority towards persons under the age of sixteen years, or using a computer system as a means of communicating with persons under the age of sixteen years.

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 a certificate of conviction 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 Member has not appealed the conviction or the sentence.

The Honourable Madam Justice A. Tuck-Jackson concluded that the quantity of child pornography involved in this case was staggering (Exhibit 4, Tab E). The Committee agrees.

The Committee finds that the Member’s possession of child pornography and his criminal conviction for possessing, accessing and making available child pornography constitutes acts of professional misconduct, being more particularly breaches of Ontario Regulation 437/97, subsections 1(15), 1(16), 1(17), 1(18) and 1(19).

SUBMISSIONS ON PENALTY

College Counsel submitted that revocation of the Member’s Certificate of Qualification and Registration, and publication with name was the appropriate penalty for the gravity of the misconduct. College Counsel stated that the overriding principle of penalty in this case should be the protection of the public, specifically children. Counsel submitted that this case goes to the heart of the suitability of placing individuals in a position of trust and responsibility with children. Given the Member’s conduct and subsequent diagnosis, there is no other way to protect the public and children than revocation.

Dr. Julian Gojer, who is a forensic psychiatrist particular to the assessment, treatment and management of sex offenders, authored a report on behalf of the Member and testified with regards to his report, dated January 3, 2011 (Exhibit 4, Tab D, page 54). Dr. Gojer testified that the Member actually used some of the children in his class for his masturbatory fantasies (Exhibit 4, Tab D, page 70). College Counsel stated that this fact bears directly on the Member’s suitability to hold a teaching certificate. College Counsel submitted the following aggravating factors:

1. The quantity of child pornography involved;

2. Symbolized degradation and absence of respect for human dignity;

3. A concerted effort to develop a collection of such material;

4. The use of peer-to peer mechanism to make the collection available to others which facilitated the re-victimization of each subject and contributed to the expansion of the market for such material; and

5. Dr. Gojer diagnosed the Member as an incurable pedophile and the focus of intervention must be on managing the risk that it presents. The Member presents as an ongoing and serious risk to children (Exhibit 4, Tab E, page 29). College Counsel submitted that treated or untreated, the Member presents a risk to children.

College Counsel stated that the Member’s conduct has damaged the reputation of the profession in the province. College Counsel submitted that the only way to restore public confidence in the system and its teachers is to remove the Member from the profession.

College Counsel provided two cases for review by the Committee which demonstrated the degree of penalty application for similar behaviour. Counsel submitted that the present case was more aggravating and deserved the penalty proposed.

PENALTY DECISION

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) There shall be publication of the findings and order of the Committee, in summary form, with the Member’s name, in the official publication of the College Professionally Speaking/Pour parler profession.

REASONS FOR PENALTY

Accessing, possessing and making available child pornography are among the most heinous crimes in our society, targeting children and perpetuating a market which thrives on the exploitation and abuse of children. In her Reasons for Sentence, the Honourable Madam Justice A. Tuck-Jackson stated, “Not only is the gravity of the offences committed by Mr. Adams high, so too is his degree of responsibility. During the relevant time period, Mr. Adams taught as an elementary school teacher. In this capacity, he had to have known full well the danger presented to children and society as a whole by the very existence of child pornography” (Exhibit 4, Tab E, page 15). As a Member who contravened a law, his conduct is disgraceful, dishonourable and brings the profession into disrepute. The Member is not suitable to be in a position of trust and authority over children and must not be permitted to teach.

The Committee concurs with the submissions on penalty by College Counsel. Revocation serves as both a specific and general deterrent as removing the Member from the classroom protects children and restores public confidence in the profession. Publication with name serves the public interest by informing the community that the profession acts decisively when matters of this nature are brought to its attention and will denounce such behaviour to other members of the profession.

Dated: May 23, 2013

______________________________ John Tucker,

Chair, Discipline Panel ______________________________ Monika Ferenczy, OCT Member, Discipline Panel

Wes Vickers, OCT

Member, Discipline Panel