DISCIPLINE COMMITTEE OF THE ONTARIO COLLEGE OF TEACHERS
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 Eric John Maillard, a member of the Ontario College of Teachers.
PANEL: Irene Dembek, OCT, Chair
Danny Anckle
Alexander (Sandy) Bass, OCT
BETWEEN: )
) David Leonard,
) McCarthy Tétrault LLP,
) for Ontario College of Teachers,
ONTARIO COLLEGE OF TEACHERS ) assisted by Daniela DeBartolo,
) Litigation Paraprofessional
-and- )
) Eric John Maillard was not
) present, nor was he represented
ERIC JOHN MAILLARD )
(CERTIFICATE #491930) )
) Julie Maciura,
) Steinecke Maciura LeBlanc,
) Independent Legal Counsel
) Heard: February 25, 2013
DECISION, REASONS FOR DECISION AND ORDERS
This matter came on for hearing before a panel of the Discipline Committee (the “Committee”) on February 25, 2013 at the Ontario College of Teachers (the “College”) at Toronto.
A Notice of Hearing, dated March 7, 2012 was served on Eric John Maillard (the “Member”), requesting his presence on April 2, 2012 to set a date for a hearing, and specifying the charges. The hearing was subsequently set for February 25, 2013.
The Member was not present or represented.
College Counsel tendered an Affidavit of Daniela De Bartolo, Litigation Paraprofessional at McCarthy Tétrault, sworn February 20, 2013 (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. Attached to Exhibit 2 and found at Tab B is an Affidavit of Service of Norman Ng, Process Server, sworn March 20, 2012 which confirms that the written materials sent by Ms. De Bartolo to the Member were served on the Member’s father on March 15, 2012. Attached to Exhibit 2 and found at Tab E is a copy of a letter from Daniela De Bartolo to the Member dated December 17, 2012 advising the Member of the February 25, 2013 hearing date. Attached to Exhibit 2 and found at Tab F is an Affidavit of Service of Norman Ng, Process Server, sworn January 3, 2013, which confirms that the letter from Ms. De Bartolo dated December 17, 2012 to the Member was served on the Member’s father on January 2, 2013. College Counsel submitted that the Member is not incarcerated and therefore is able to appear at the hearing if that was his intention. The Committee is 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 Eric John Maillard in the Notice of Hearing (Exhibit 1) dated March 7, 2012 are as follows:
IT IS ALLEGED that Eric John Maillard 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 Act and the Education Act, Revised Statutes of Ontario, 1990, chapter E.2, and specifically section 264(1) thereof or the Regulations made under those Acts, contrary to Ontario Regulation 437/97, subsections 1(14) and 1(15);
(c) 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);
(d) he engaged in conduct unbecoming a member, contrary to Ontario Regulation 437/97, subsection 1(19).
PARTICULARS OF THESE ALLEGATIONS ARE AS FOLLOWS:
Eric John Maillard (the “Member) is a member of the Ontario College of Teachers.
Between August 1, 2007 to October 23, 2009, the Member:
(a) was in possession of child pornography;
(b) accessed child pornography.
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
The College called two witnesses, Iona Mitchell and Detective Cameron Hyde.
Evidence of Iona Mitchell
Iona Mitchell (“Ms. Mitchell”) is the Manager of Membership Records for the Ontario College of Teachers. Ms. Mitchell testified that she is responsible for the department that manages the records of members and prospective members. Ms. Mitchell confirmed that the College does have a member by the name of Eric John Maillard, whose Ontario College of Teachers (“OCT”) Registration number is 491930 and that he was a member of the College from 2005 to 2010. Ms. Mitchell testified that the Member’s status was “Suspended-Non-payment of fees” as of April 30, 2010. Ms. Mitchell confirmed that the Member submitted his resignation from the College on September 2, 2011 (Notice of Resignation-Exhibit 4) and that his current status is “Cancelled-Resigned” as of September 8, 2011.
Ms. Mitchell testified that the Member’s last known address was as shown on the “Personal Information Tab” of the College’s “New Registry System” (Exhibit 5) and made reference to the College’s by-law, which states that within thirty days of any part of a record change, the College must be notified of the change.
Evidence of Detective Cameron Hyde
Detective Hyde (“Det. Hyde”) testified that he was in his eleventh year with the Winnipeg Police Service and that he was a member of the Internet Child Exploitation Unit (“ICE”) from 2008 to 2013. Det. Hyde stated that the ICE unit is responsible for investigating child pornography, internet luring and crimes against children. Det. Hyde further stated that the unit has a ninety percent success rate for securing confessions during interviews.
Det. Hyde testified that he received a phone call from Constable Mark Hutton, (“Const. Hutton”) who was the first responder for the ICE unit, on October 21, 2009. Det. Hyde stated that Const. Hutton advised him that images of a sexual nature of children between ten to twelve years of age were found on a computer that was brought to a repair shop in Winnipeg (“Mac Helper”).
Det. Hyde testified that he attended at Mac Helper and spoke with the manager, Howie Morrow. Det. Hyde further testified that he then interviewed the technician servicing the computer, Kevin Russell, who had discovered six (6) to ten (10) images of very young girls “scantily clad”. Det. Hyde advised Mr. Russell that the images did not meet the definition of child pornography and therefore were not illegal. Det. Hyde further advised Mr. Russell that the images were considered “child-modeling” and that this in itself is not illegal. Det. Hyde stated that these images are of a moral concern but not child pornography.
Det. Hyde testified that he obtained a copy of the work order from Mac Helper that identified the Member as the owner of the computer. Det. Hyde stated that he left a voicemail message for the Member to contact him. Det. Hyde testified that he received a phone call from the Member on October 21, 2009. Det. Hyde further testified that the Member stated that he was a “smut addict”, had an “addiction to pornography” and had “bad images” on his computer. Det. Hyde gave evidence that the Member stated that he wished to meet with the Police in person. Det. Hyde stated that at this time, he read the Member his “Right to Counsel” from the Charter of Rights (sec:10B), and the Police Caution (Exhibit 6). Det. Hyde testified that he was satisfied that the Member understood his rights. Det. Hyde further testified that it was arranged that the Member would attend at the police station on October 23, 2009 to be interviewed.
Det. Hyde testified that he contacted Mac Helper and advised them to hold the computer for investigation. Det. Hyde further testified that the next morning, October 22, 2009, he seized the Member’s computer and an external hard drive, which contained a copy of the contents of the Member’s hard drive.
Det. Hyde testified that when the Member attended at the police station for the interview, he advised him that the interview would be audio and video recorded. Det. Hyde played segments of the video interview (Exhibit 7) with the Member for the Committee. The video interview showed the Member admitting that the pornography located on the computer was his collection and that he relied on the disclaimers of the websites, which stated that the images were of girls eighteen years or older. The video interview shows the Member admitting that he knows that looking at the images is not appropriate and that looking at images of children would be considered child abuse. The Member also admitted in the video that as a school teacher, he could tell the difference in ages of children, that there was an “inordinate amount of pornography” on the computer, and that he is “not in the right profession”. The video interview showed the Member being advised that he would be charged with possession of child pornography and accessing child pornography. The video interview also showed the Member being read his Charter Rights and being advised that the Police would be obtaining a search warrant to view the contents of the Member’s computer.
Det. Hyde testified that following the interview, a search warrant was obtained on November 2, 2009 to search the Member’s computer. Det. Hyde further testified that Constable Daryn Laminman (“Const. Laminman”), an officer assigned to the Tech Crime Forensic Unit, extracted images from the Member’s computer using the Law Enforcement against Child Exploitation (“LACE”) program. Det. Hyde described the LACE program as a computer program that examines photographs by using “LACE Image Analysis” to categorize the images (Exhibit 8). Det. Hyde stated that a trained officer then views the image and categorizes it. Det. Hyde further stated that members of the task force receive training in how to identify the nature of an image through various conferences and working with medical doctors.
Det. Hyde testified that an examination of the 318,577 images on the Member’s computer found that 197 met the Criminal Code definition of child pornography. Det. Hyde presented the Committee with a sample of fifteen images of pre-pubescent girls in various positions that were extracted from the Member’s computer.
Det. Hyde testified that along with the images, the Member used the Google search engine to look up some of the following terms:
“Child Porn Law Canada”;
“How People get caught child porn”;
“Prevent other users from viewing administrator files”;
“How do I hide downloaded files on Mac”;
“How do I hide Vuze files from other accounts”; and
“Sharing Vuze files with other users”.
Det. Hyde further testified that no child pornography video files were found on the Member’s computer, however “Play Angel” videos (depicting dancing teenage aged girls with the video camera focused on their groin area) were found on the Member’s computer. Det. Hyde stated that the collection of images found on the Member’s computer were of mostly pre-pubescent females ranging from eight to sixteen years of age.
Det. Hyde testified that the Crown Attorney assigned to the criminal proceedings advised that the charges against the Member were stayed due to late disclosure of the Forensic Tech Crime report, therefore, there was never a criminal trial relating to the charges brought against the Member.
SUBMISSIONS FROM COLLEGE COUNSEL ON FINDING
College Counsel submitted that the case is overwhelming against the Member and there is little difficulty in coming to a conclusion. Counsel referenced the Child Pornography Image Descriptions submitted by Det. Hyde (Exhibit #9), images viewed by the Committee, video interview of the Member and Det. Hyde’s testimony as evidence that supports a finding of professional misconduct. Specifically, Counsel referenced subsections 1(5), 1(14) and 1(15) of Ontario Regulation 437/97 and further submitted that as a teacher “you are role models in society 24 hours a day. What you do in private life to the extent it becomes public does have a bearing on the profession”. Counsel submitted that in this case, the Member’s conduct fits all three heads of misconduct in subsection 1(18) of Ontario Regulation 437/97, disgraceful, dishonourable and unprofessional and is far beyond conduct unbecoming a member (Ontario Regulation 437/97 1(19)). Counsel asked the Committee to consider the search terms found on the Member’s computer on how to hide and share information. Counsel submitted that the Member knew what he was doing and this was very troubling and concerning. Counsel stated that the Committee’s task is to determine whether these facts support the findings as alleged.
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 Eric John Maillard committed acts of professional misconduct as alleged, more particularly breaches of Ontario Regulation 437/97, subsections 1(5), (14), 1(15), 1(18) and 1(19).
REASONS FOR DECISION
Based on the evidence and testimony of Det. Hyde, and exhibits filed, the Committee finds that the Member accessed and was in possession of child pornography from August 1, 2007 to October 23, 2009. The Member, by his own admission, as seen in the video interview, is addicted to pornography, but upon further investigation, the type of pornography that he accessed and possessed depicted children between the ages of eight to sixteen years of age. These images fit the Criminal Code definition of child pornography. The Committee viewed a sample of images taken from the Member’s computer which clearly depicted pre-pubescent girls, some nude and in various positions. In some of the images, the girls were photographed being touched by adults.
The Committee finds that the Member was fully aware that his conduct was inappropriate as evidenced by the fact that Google searches that were found on the Member’s computer included terms like “Child Porn Law Canada” and “How people get caught child porn”. It also seems clear to the Committee from the evidence presented that the Member may have attempted to share the images with others because Google searches for terms like “Sharing Vuze files with other users same computer” and “Sharing Vuze files with other users” were also found on the Member’s computer.
The Committee finds that the Member’s conduct is disgraceful, dishonourable, unprofessional, unbecoming a member of the profession, fails to maintain the standards of the profession and demonstrated a failure to comply with the Act and the Education Act.
SUBMISSIONS FROM COLLEGE COUNSEL ON PENALTY
College Counsel submitted that the only appropriate penalty in this case is revocation and publication with the Member’s name. Counsel submitted that even though the Member’s current status is “Cancelled-Resigned”, it is in the Committee’s jurisdiction to change a Member’s status by imposing a penalty for professional misconduct. Counsel provided the Committee with three cases which were similar in nature to the matter before the Committee. In each case, the Member’s conduct was such that the trust of the public was lost, the interest of the public was not served and the interest of children was not protected.
Counsel submitted that the Member’s conduct has brought the profession into disrepute. There is no evidence before the Committee that demonstrates remorse or rehabilitative steps to suggest that the Member has done anything to address his addiction. Counsel stated that there is a line that members may cross with their conduct, and once they have crossed this line, they forfeit their right to be members of the profession.
Counsel submitted that revocation will send the appropriate message that this conduct is not consistent with being a member of the College, and is insidious and will not be tolerated.
PENALTY DECISION
The Committee makes the following order as to penalty:
directs the Registrar of the Ontario College of Teachers to immediately revoke the Member’s certificate of qualification and registration; and
pursuant to subsection 30 (5) paragraph 3 of the Ontario College of Teachers Act, the findings and Order of the Committee shall be published in summary, with the name of the Member, in the official publication of the College, Professionally Speaking/Pour parler profession.
REASONS FOR PENALTY DECISION
The Committee agrees with the submissions of College Counsel that it has the jurisdiction to hear the matter relating to the Member by virtue of subsection 15(4) and that it furthermore has the jurisdiction to impose a penalty pursuant to subsection 30(4) and (5) even though the status of the Member’s Certificate of Qualification and Registration is currently “Cancelled-Resigned.” The Member was a member of the College during the time period which the allegations arose.
Possession of child pornography is a crime against children and perpetuates a market which thrives on the exploitation of children. Society abhors child exploitation and the Committee is resolute that no member of the profession should engage in this type of egregious conduct. It is particularly unacceptable that the Member was a teacher, someone who is entrusted with the protection of children. Children are vulnerable members of society and must be safeguarded against exploitation and abuse.
The Committee finds the conduct of the Member was despicable and will not be tolerated by the profession. The Member, as a result of his conduct, has forfeited the privilege of holding a teaching certificate and being a member of the profession. Revocation is the appropriate penalty for misconduct of this severity.
The Committee concurs that publication of the findings and Order of the Committee, in summary, with the name of the Member is necessary to alert the public and the profession that members of the College who exploit children for their own gratification do not belong in the profession. Publication acts as a specific deterrent to the Member, provides a general deterrent to the profession and serves to inform the public that a member of the teaching profession, who engages in this type of activity, will have their Certificate of Qualification and Registration revoked.
In conclusion, the Committee is confident that the finding and penalty order is appropriate. It serves and protects the interests of the public and the profession.
Date: May 29, 2013
______________________________
Irene Dembek, OCT
Chair, Discipline Panel
______________________________ Danny Anckle
Member, Discipline Panel
______________________________
Alexander (Sandy), OCT
Member, Discipline Panel