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 Yvan Rhéal Michaud, a member of the Ontario College of Teachers at the time when the incidents at issue in this matter took place.
PANEL: Robert Gagné, Chair Sara Nouini, OCT Stéphane Vallée, OCT
BETWEEN:
Christine Lonsdale, McCarthy Tétrault LLP, for Ontario College of Teachers assisted by Annie Lacroix, Law Clerk
ONTARIO COLLEGE OF TEACHERS – and – YVAN RHÉAL MICHAUD (CERTIFICATE #507999)
Yvan Rhéal Michaud was neither present nor represented
Renée A. Kopp, Jones Litigation Counsel, Independent Legal Counsel
Heard: December 9, 2015
DECISION, REASONS FOR DECISION AND ORDERS
This matter came on for hearing before a panel of the Discipline Committee (the “Committee”) on December 9, 2015 at the Ontario College of Teachers (the “College”) at Toronto.
A Notice of Hearing dated April 23, 2015 (Exhibit 1) was served on Yvan Rhéal Michaud (the “Member”), requesting his presence on July 7, 2015 to set a date for hearing, and specifying the charges. The hearing was subsequently set for December 9, 2015.
The Member was neither in attendance at the hearing nor was he represented by legal counsel.
Counsel for the College submitted the Affidavit of Annie Lacroix (Exhibit 2) sworn on December 4, 2015, to prove that the Member had been informed of the allegations against him, the date and time of the hearing and the penalty that could be sought by the Committee. In the affidavit, Ms. Lacroix, a law clerk with McCarthy Tétrault LLP, provides a detailed description of her attempts to contact the Member and provides proof of service of all required documents as well. On the basis of the affidavit, the Committee is satisfied that the Member was served with the Notice of Hearing and all disclosure documents, and was aware of the date and time of the hearing and the penalty that could be sought by the Committee. The Committee therefore heard this matter in the absence of the Member.
ALLEGATIONS
The allegations against the Member in the Notice of Hearing are as follows:
IT IS ALLEGED that Yvan Rhéal Michaud is guilty of professional misconduct as defined in subsection 30(2) of the Ontario College of Teachers Act, 1996 (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) thereof or the regulations made thereunder, 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:
Yvan Rhéal Michaud is a member of the Ontario College of Teachers.
During the relevant period, the Member was employed by the Conseil scolaire public du Nord-Est de l’Ontario (the “Board”) as a teacher. During the period in question, the Member was teaching at [XXX] in North Bay.
On or about June 12, 2012, the Member sold a controlled drug, that is, marijuana, to an undercover police officer.
On May 8, 2014, the Member pleaded guilty to trafficking in a substance included in Schedule II, contrary to subsection 5(1) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19. The Court found the Member guilty of the criminal charge against him.
MEMBER’S PLEA
As the Member was not present and did not have legal representation, the Committee proceeded on the basis that the Member denied the allegations set out in the Notice of Hearing. The Chair of the Committee, on behalf of the Member, entered a plea of not guilty to the allegations.
THE EVIDENCE
College Counsel entered into evidence the Registered Member Information for Yvan Rhéal Michaud (Exhibit 3), which indicates that the Member was a member of the College at the time of the alleged events. The College also entered into evidence a Brief of Court Documents - Her Majesty the Queen v. Yvan-Rheal Michaud (the “Brief of Court Documents”) (Exhibit 4), which contains the following documents:
Court Information and Appearances;
Order of Restitution, dated May 8, 2014;
Conditional Sentence, dated October 9, 2014;
Prohibition Order issued by the Court at the imposition of sentence, dated October 9, 2014;
Transcript: R. v. Yvan-Rheal Michaud, Proceedings at Guilty Plea before the Honourable Justice G.P. Rodgers, dated May 8, 2014; and
Transcript: R. v. Yvan-Rheal Michaud, Reasons for Sentence delivered by the Honourable Justice G.P. Rodgers, dated October 9, 2014.
The evidence presented in Exhibit 4 confirms that, on May 8, 2014, in the Ontario Court of Justice, the Member was found guilty of trafficking in a substance included in Schedule II, contrary to subsection 5(1) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19.
SUBMISSIONS ON FINDING
College Counsel described the Member’s criminal history in detail and submitted that the Member’s case involved the trafficking of a controlled drug, that is, less than three kilograms of marijuana, contrary to subsection 5(1) of the Controlled Drugs and Substances Act, to an undercover police officer. According to the Brief of Court Documents, the Member had sold one pound of cannabis (marijuana) to an undercover police officer for $2,400, while he was a full-time teacher. Counsel further submitted that the Member was motivated by greed, not need.
Counsel also submitted that the Member’s conduct, as detailed in the Brief of Court Documents, and the resultant criminal conviction, provided a sufficient basis to justify a finding of professional misconduct under all of the headings of misconduct alleged in the Notice of Hearing. The Member had legal representation during his criminal proceedings.
DECISION
Having considered the evidence, the onus and standard of proof, as well as 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 Yvan Rhéal Michaud committed acts of professional misconduct as alleged in the Notice of Hearing, contrary to Ontario Regulation 437/97, subsections 1(5), 1(15), 1(16), 1(18) and 1(19).
REASONS FOR DECISION
In accordance with the law of evidence and Rule 13.03 of the Rules of Procedure of the Discipline Committee and of the Fitness to Practise Committee (the “Rules of Procedure”), inter alia, the Committee accepts the certified copy of the Court Information (Exhibit 4, Tab A) as proof, in this case, that the Member committed the criminal offence outlined therein. The Member was found guilty and convicted of this offence before a Canadian Court. No appeal has been made, and the time for an appeal has expired.
In addition, pursuant to Rule 13.04 of the Rules of Procedure, the Committee admits as ancillary to the certified copy of the Court Information, the findings of fact contained in the related decision of the Ontario Court of Justice involving the Member (Exhibit 4, Tab E). The Committee further admits as incidental to the certified copy of the Court Information, transcripts of the proceedings at which the conviction occurred, for the purposes of explaining the finding of guilt (Exhibit 4, Tabs E and F).
Based on the evidence contained within the Brief of Court Documents, the College has proven, on a balance of probabilities, that on or about June 12, 2012, the Member sold a controlled drug, that is, marijuana, to an undercover police officer. During the relevant period, the Member was employed by the Board. In 2014, he pleaded guilty to trafficking in a substance included in Schedule II, contrary to subsection 5(1) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19. The Court found the Member guilty of the criminal charge against him, and sentenced him to a conditional sentence of 12 months (Exhibit 4, Tab C).
The Committee finds the Member’s conduct egregious. By becoming involved in drug trafficking, he abused his position of trust and authority and undermined the public’s trust in the teaching profession. Accordingly, the Committee finds that the Member’s conduct constitutes acts of professional misconduct contrary to Ontario Regulation 437/97, subsections 1(5), 1(15), 1(16), 1(18) and 1(19).
SUBMISSIONS ON PENALTY
Counsel for the College submitted that a reprimand, a 24-month suspension of the Member’s Certificate of Qualification and Registration, the requirement to take a course of instruction prior to accepting any teaching position and publication with name are appropriate penalties for this misconduct. According to College Counsel, while the drug trafficking may have occurred off school premises, the selling of a controlled drug is a very serious matter and the penalty for such conduct ought to be severe.
College Counsel drew the Committee’s attention to a number of aggravating factors as they were described by Justice Rodgers of the Ontario Court of Justice (Exhibit 4, Tab F), inter alia, that although the Member knew or ought to have known the harmful effects of cannabis (marijuana) on youth and on our communities, he became involved in drug trafficking nonetheless. Furthermore, he knew or ought to have known that the drugs he sold could end up on the street. According to Justice Rodgers, greed would appear to have been the Member’s reason for committing the offence.
College Counsel referred the Committee to three cases upholding the College’s proposed penalty: Ontario College of Teachers v. Dungey, 2002 LNONECD 10; Ontario College of Teachers v. Poisson, 2003 LNONECD 42; and Ontario College of Teachers v. Horsford (October 6, 2015). She submitted that the first two cases were similar to that of the Member and that a significant two-year suspension and publication with name were ordered in both instances. The third case was submitted to the Committee as an example of the appropriate terminology with respect to the penalty.
PENALTY DECISION
The Committee makes the following order as to penalty:
The Committee directs that, prior to accepting a teaching position, or accepting any other position requiring a Certificate of Qualification and Registration (collectively, the “teaching position”), the Member is to appear before the Committee, on a date scheduled by him, to receive a reprimand delivered in person at the College’s offices at 101 Bloor Street West in Toronto, Ontario, with the fact of the reprimand to be recorded in the public register.
The Committee directs the Registrar to suspend the Member’s Certificate of Qualification for 24 months from the date of the Committee’s decision and to publish a notation to this effect in the public register.
The Committee directs the Registrar to impose the following terms, conditions and limitations on the Member’s Certificate of Qualification, and to publish this decision in the public register:
(a) Prior to accepting a teaching position, the Member must, at his own expense, enrol in and successfully complete a professional ethics course, approved in advance by the Registrar and subject to the following terms and conditions:
(i) the Member must submit to the course provider a copy of the Discipline Committee’s Decision and Reasons for Decision;
(ii) after a review of the documents referred to in paragraph (i), above, the course provider must submit to the Registrar, for his approval, a curriculum for the proposed course, which specifically addresses the concerns of the Discipline Committee with respect to the Member’s professional misconduct. The curriculum proposed by the course provider must also specify the length of the course, describe the assignments which the Member must complete for the course and identify the course objectives.
(b) Within 30 days of completion of the course described in paragraph (a), above, the Member must provide the Registrar with a certificate in writing from the course provider stating that the Member has successfully completed said course, and describing the Member’s progress with respect to the course objectives.
(c) The Member must notify the Registrar of any other drug-related criminal charges filed against him, covering a two-year period following the order handed down by the Committee.
- The Committee directs that a summary of its decision and order be published in the College’s official publication, Professionally Speaking/ Pour parler profession, including the Member’s name.
REASONS FOR PENALTY DECISION
The Committee finds that, in view of the seriousness of the Member’s conduct, the proposed penalty is reasonable and appropriate. In coming to this decision, the Committee considered the aggravating factors detailed by Justice Rodgers, and the case law submitted by Counsel for the College. Firstly, the Member became involved in drug trafficking, which undermined the public’s trust in the teaching profession. He knew or ought to have known the harmful effects of drugs on our communities. Secondly, he knew or ought to have known that the drugs he sold could end up on the street and thus in the possession of young students, which could compromise their academic and social development. Thirdly, the Member was motivated by greed. He squandered his talent and intelligence to sell drugs for personal enrichment. The Member’s serious misconduct warrants a correspondingly serious penalty.
The reprimand will allow the Committee to directly address its concerns with the Member, and will serve as a specific deterrent. Recording the fact of the reprimand on the Register is important, in that it will serve as a general deterrent to other members of the profession.
The Committee finds that, in view of the seriousness of the Member’s misconduct, a two-year suspension is appropriate in the circumstances and makes it clear that such behaviour is unacceptable. The Member’s conduct in 2012 is worrisome, as noted above. The fact of the suspension will be recorded on the Register in order to serve as a general deterrent to the members of the teaching profession.
The Committee finds that the course of instruction on professional ethics will assist in the rehabilitation of the Member, should he decide to return to the teaching profession after his suspension. It will remind the Member of his obligations as a teacher and will help him to make better decisions. The condition requiring the Member to notify the Registrar of any other drug-related criminal charges filed against him, covering the two-year period following the order handed down by the Committee, serves the public interest. Given the Member’s criminal history, the Committee considers that it is reasonable to monitor his conduct closely should he decide to return to teaching.
The Committee finds that publication of the Member’s name in Professionally Speaking/Pour parler profession is warranted. It conveys to the profession the serious nature of the Member’s misconduct and the consequences of such behaviour. Publication with name acts as a specific deterrent to the Member as it holds him accountable for his actions. It also serves as a general deterrent by reminding the profession that such behaviour is not tolerated. Moreover, publishing the Member’s name ensures the transparency of the discipline process and reassures the public that the College acts decisively and does not shield its members when matters of this nature are brought to its attention.
The Committee is satisfied that the finding and the penalty protect the public interest and uphold the standards of the teaching profession.
Date: January 14, 2016
Robert Gagné Chair, Discipline Panel
Sara Nouini, OCT Member, Discipline Panel
Stéphane Vallée, OCT Member, Discipline Panel