Ontario College of Teachers v Talukder, 2013 ONOCT 88

DISCIPLINE COMMITTEE OF THE ONTARIO COLLEGE OF TEACHERS

Citation: Ontario College of Teachers v Talukder, 2013 ONOCT 88

Date: 2013-04-11

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

Yusuf Ali Talukder, a member of the Ontario College of Teachers.

PANEL: Pauline Smart, Chair Monika Ferenczy, OCT

Darlene Mead, OCT

BETWEEN: ) ) Shane D’Souza,

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

ONTARIO COLLEGE OF TEACHERS ) assisted by Bev Hodsdon,

) Law Clerk )

• and – )

) Yusuf Ali Talukder was not present

YUSUF ALI TALUKDER ) or represented

(CERTIFICATE #474890) )

) Julie Maciura,

) Steinecke Maciura LeBlanc, ) Independent Legal Counsel ) ) Heard: March 26, 2013

DECISION, REASONS FOR DECISION AND ORDERS

This matter came on for hearing before a panel of the Discipline Committee (the “Committee”) on March 26, 2013 at the Ontario College of Teachers (the “College”) at Toronto.

A Notice of Hearing (Exhibit 1), dated September 14, 2012 was served on Yusuf Ali Talukder, requesting his attendance before the Discipline Committee of the Ontario College of Teachers on October 10, 2012 to set a date for a hearing, and specifying the charges. The hearing was subsequently set for March 26, 2013.

The Member was not present nor was he represented.

Counsel for the College submitted into evidence an Affidavit of Beverley Hodsdon, sworn March 25, 2013 (Exhibit 3). The Affidavit confirmed that the Member had been properly served with the Notice of Hearing and Disclosure Brief. The Member was provided with a letter of notification advising him of the scheduled date, place and time of the hearing. This letter also stated that the College would be seeking to have his Certificate of Qualification and Registration revoked and publication of his name in Professionally Speaking/Pour parler profession. On March 19, 2013, Beverley Hodsdon spoke with the Member and he verified receipt of this letter. He further indicated he would not be attending the hearing but that he would be sending a letter to the College pointing out the weaknesses of the College’s case. No letter was received by the date of the hearing.

The Committee was satisfied that the Member was duly informed of the date and time of the hearing and the penalty sought and proceeded with the hearing at 9:20 a.m.

THE ALLEGATIONS

The allegations against Yusuf Ali Talukder (the “Member”) in the Notice of Hearing are as follows:

IT IS ALLEGED that Yusuf Ali Talukder is guilty of professional misconduct as defined in subsections 30(2) and 40(1.1) 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 abused a student or students physically, sexually, verbally, psychologically or emotionally, contrary to Ontario Regulation 437/97, subsection 1(7) and engaged in sexual abuse of a student or students of a nature defined in section 1 of the Act.

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 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);

e) 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

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

PARTICULARS OF THESE ALLEGATIONS ARE AS FOLLOWS:

1. Yusuf Ali Talukder (the “Member”) is a member of the Ontario College of Teachers.

2. At all material times, the Member was the Principal of [XXX], Toronto (the “School”).

3. On or about November 24, 2007, the Member sexually touched a [XXX] year old female student (“the Student”), whom he was tutoring at the School.

4. On or about May 31, 2010 the Member was found guilty in the Ontario Court of Justice of the charges that he:

(a) On or about November 24, 2007, in the City of Toronto, in the Toronto Region, did for a sexual purpose touch the Student, a person under the age of 14 years directly with a part of his body contrary to the Criminal Code (Canada); and

(b) On or about November 24, 2007, in the City of Toronto, in the Toronto Region, did commit a sexual assault on the Student contrary to the Criminal Code (Canada).

5. On or about September 20, 2010, the Member was sentenced to six months in jail to be followed by three years’ probation. He was also prohibited pursuant to section 161 the Criminal Code (Canada), from doing the following for a period of ten 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.

6. 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

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

Registered Member Information (Exhibit 2); and

Brief of Court Documents - Her Majesty The Queen v. Yusuf Ali Talukder (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 dated November 28, 2007 to September 10, 2010 (Found at Tab A);

2. Certified Copy of Recognizance of Bail dated November 28, 2007 (Found at Tab B);

3. Certified Copy of Probation Order dated September 20, 2010 (Found at Tab C);

4. Certified Copy of Prohibition Order dated September 20, 2010 (Found at Tab D);

5. R. v. Talukder, 2010 ONCJ 592-Reasons for Judgment of the Honourable Madam Justice D. Hackett released on June 13, 2010 (Found at Tab E);

6. Transcript of Proceedings and Reasons for Sentence before the Honourable Madam Justice D. Hackett dated September 20, 2010 (Found at Tab F).

The evidence presented in the Brief of Court Documents (Exhibit 4) confirmed that on May 31, 2010, the Member was found guilty of the charge that he, on or about the 24^th day of November in the year 2007, did for a sexual purpose touch the Student, a person under the age of fourteen years, directly with a part of his body, contrary to the Criminal Code (Canada). Further, the Member was found guilty of committing a sexual assault on the Student contrary to the Criminal Code (Canada), however this charge was later conditionally stayed by the Court at the sentencing hearing according to the principles set out in R. v. Kienapple 1974 CanLII 14 (SCC), [1975] 1 S.C.R. 729.

On September 20, 2010, the Member was sentenced to six months in jail to be followed by three years’ probation. He was also prohibited pursuant to section 161 the Criminal Code (Canada), from doing the following for a period of ten 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.

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 not guilty to both charges. College Counsel pointed out that the Crown had successfully proven the Member’s guilt beyond a reasonable doubt. Counsel also noted that the burden of proof in this discipline proceeding is based on a lower threshold, the balance of probabilities.

Therefore, College Counsel stated that the Member’s criminal convictions, on both counts, are sufficient evidence for this Committee to make a finding of professional misconduct.

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. Yusuf Ali Talukder by the Ontario Court of Justice. There shall be no publication of any information that might tend to identify the victim involved in this matter.

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 Yusuf Ali Talukder committed acts of professional misconduct as alleged, more particularly breaches of Ontario Regulation 437/97, subsections 1(5), 1(7), 1(16), 1 (17), 1(18) and 1(19).

The Committee further finds that the Member engaged in sexual abuse of a student as defined in section 1 and subsection 40(1.1) of the Act.

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 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 Committee accepts as fact, as detailed in the Brief of Court Documents contained within Exhibit 4, that on May 31, 2010 the Member was convicted of sexual assault (again, later stayed) and sexual touching of a person under the age of 14 years of age.

On September 20, 2010 the Member was sentenced to six months in jail to be followed by three years’ probation.

The Member was also prohibited pursuant to section 161 the Criminal Code (Canada), for a period of ten 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.

Counsel submitted that statements made during the criminal trial, that the Member is not subject to disciplinary action because he was not employed by a school board, are erroneous. The Member’s misconduct is in conflict with the standards of profession and is not any less significant because it occurred in a private school setting. The Committee agrees with these submissions and finds that it has jurisdiction over the member regardless of the setting in which he was teaching.

SUBMISSIONS ON PENALTY

Counsel for the College 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.

Counsel referred the Committee to the Brief of Court Documents (Exhibit 4, Tab F) outlining the aggravating factors considered by Madam Justice Hackett in sentencing the Member: the young age of the victim, her vulnerability as a result of her father’s death, the Member’s breach of trust due to the Member’s position as a teacher and highly respected member of the community, multiple incidents of touching in one day, deliberate and premeditated attempts to increase the vulnerability of the victim, and evidence of grooming over a period of a year.

Revocation and publication will serve as a specific deterrent to the Member to not engage in any future misconduct of this nature.

As a general deterrent, the penalty informs the profession and the public that such behaviour will result in revocation of certification, as well as full publication with the Member’s name.

Counsel further submitted that criminal convictions are publicly available with the Member’s name and that publication of the Member’s name reinforces the principle of transparency for such serious misconduct.

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

The Member was found guilty of sexual assault and sexual interference in criminal proceedings. The victim was a [XXX] year old student in the Member’s [XXX] school [XXX], whose vulnerability was preyed upon by the Member in his position of trust as a teacher and respected member of the community.

Despite being found guilty beyond a reasonable doubt, the Member continues to deny the allegations and refuses to take responsibility for his actions. As outlined in the Affidavit of Beverly Hodsdon (Exhibit 3, page 2), on October 17, 2012 “the Member said, in reference to the allegations, that he “did not do that”, that there were no witnesses to the crime and that he did not want to plead guilty.” On March 19, 2013 the Member stated he would send a letter (which was never received) pointing out the weaknesses in the College’s case.

The Committee recognizes that the Member’s probation and prohibition orders prohibit him from being in a position of trust or authority towards young persons (unless another adult is immediately present) for a period of ten years from the sentencing date. These conditions and limitations would seriously impact the Member’s ability to work as a teacher for at least that period of time.

The Committee finds that based on the Member’s conduct and the criminal convictions and sentencing orders, the Member has forfeited the privilege of holding a teaching certificate. Revocation is the appropriate penalty for misconduct of this severity.

The Committee finds there are compelling reasons to publish the Member’s name in Professionally Speaking/Pour parler profession. Publication of the findings and Order of the Committee, in summary, along with the name of the Member, identifies to the profession the serious nature of the Member’s misconduct and the consequences of such behavior. Publication in this case acts as both a specific and general deterrent and informs the profession and the public that such conduct will not be tolerated and will result in the most serious penalty.

Revocation and publication with name serves as a specific and general deterrent, informing members of the College that they are expected to act professionally with students at all times. The Committee believes it is important to communicate to the public that any member of the College is bound by the standards of the profession regardless of the setting. It also meets the principle of transparency that is important for the reasons discussed herein, including the fact that the discipline hearing was a public hearing.

The Committee is satisfied that the penalty serves and protects the public interest.

Dated: April 11, 2013

______________________________ Pauline Smart,

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

Darlene Mead, OCT

Member, Discipline Panel```