Ontario College of Teachers v Martin-Smith, 2016 ONOCT 68

DISCIPLINE COMMITTEE OF THE ONTARIO COLLEGE OF TEACHERS

Citation: Ontario College of Teachers v Martin-Smith, 2016 ONOCT 68

Date: 2016-11-18

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

Alistair Martin-Smith, a retired member of the Ontario College of Teachers.

PANEL: Tom Potter, Chair Stéphane Vallée, OCT Wes Vickers, OCT

BETWEEN: ) Christine Wadsworth, ) McCarthy Tétrault LLP, ) for Ontario College of Teachers, ONTARIO COLLEGE OF TEACHERS ) assisted by Daniela De Bartolo, ) Law Clerk – and – ) ALISTAIR MARTIN-SMITH ) Patricia D’Heureux, (CERTIFICATE #210413) ) Cavalluzzo Shilton McIntyre ) Cornish LLP, ) for Alistair Martin-Smith ) Erica Richler, ) Steinecke Maciura LeBlanc, ) Independent Legal Counsel ) ) Heard: November 3, 2016

DECISION, REASONS FOR DECISION AND ORDER

This matter came on for hearing before a panel of the Discipline Committee (the “Committee”) on November 3, 2016 at the Ontario College of Teachers (the “College”) at Toronto.

A Notice of Hearing dated January 12, 2015 (Exhibit 1) was served on Alistair Martin-Smith (the “Member”), requesting his presence on February 2, 2015 to set a date for hearing, and specifying the charges. The hearing was subsequently set for November 3, 2016.

The Member was not in attendance for the hearing but had legal representation.

THE ALLEGATIONS

The allegations against the Member in the Notice of Hearing are as follows:

IT IS ALLEGED that the Member 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 provided false information or documents with respect to his professional qualifications, contrary to Ontario Regulation 437/97, subsection 1(1);

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

(c) he signed or issued, in his professional capacity, a document that he knows or ought to have known contained a false, improper or misleading statement, contrary to Ontario Regulation 437/97, subsection 1(12);

(d) 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 under that Act, contrary to Ontario Regulation 437/97, subsection 1(15);

(e) 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);

(f) 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

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

AGREED STATEMENT OF FACTS

Counsel for the College advised the Committee that an agreement had been reached on the facts and introduced an Agreed Statement of Facts and Guilty Plea (Exhibit 2), which provides the following:

1. Alistair Martin-Smith was at all material times, a member of the Ontario College of Teachers. Attached hereto and marked as Exhibit “A” is a copy of the Ontario College of Teachers Registered Member Information respecting the Member.

2. In 2006, the Member lived and worked in the United Kingdom.

3. In August 2006, the Member took his laptop into a repair shop where the technician checked the laptop’s hard drive and found what looked like pornographic images of children on the Member’s laptop.

4. The repair shop reported the findings to the police and the Member was subsequently arrested and charged with related criminal offences. On September 27, 2007, the Member was found guilty of one count of taking an indecent photograph and 14 counts of making indecent photographs of children contrary to the United Kingdom Protection of Children Act, 1978, relating to images that the Member had downloaded from the internet. Attached and marked as Exhibit “B” is a copy of the Certificate of Conviction from HM Courts & Tribunals Service in the United Kingdom.

5. The images found on the Member’s laptop included more than 1700 pornographic images and videos of individuals who were or who appeared to be children.

6. In January 2012, the Member applied to the York Region District School Board (the “Board”) for a position as a long term occasional teacher.

7. The Member did not disclose to the Board that he had been convicted of offences in the United Kingdom as described above.

8. The Member commenced employment with the Board on August 8, 2012. Thereafter he completed and submitted an Interim Offence Declaration. His Declaration did not disclose his convictions. A copy of his Interim Offence Declaration is attached hereto and marked as Exhibit “C”.

9. In December 2012, the Member provided his consent to the York Regional Police and the Toronto Police Service to conduct a police reference check and prepare a Vulnerability Sector Screening Report. While reviewing the Vulnerability Sector Screening Reports in June 2013, the Board was advised by the Toronto Police that the Member had a criminal record in the United Kingdom.

10. Board officials met with the Member on June 24 and July 15, 2013 to discuss the information received from the Toronto Police.

11. The Member resigned his position with the Board on August 12, 2013.

GUILTY PLEA

12. By this document, the Member admits the truth of the facts and exhibits referred to in the paragraphs above (the “Admitted Facts”).

13. The Member hereby acknowledges that the Admitted Facts constitute conduct which is professional misconduct and pleads guilty to the allegations of professional misconduct against him, being more particularly breaches of Ontario Regulation 437/97 subsections 1(1), 1(5), 1(12), 1(15), 1(16), 1(18) and 1(19).

14. By this document the Member states that:

(a) he understands fully the nature of the allegations against him;

(b) he understands that by signing this document he is consenting to the evidence as set out in the Admitted Facts being presented to the Discipline Committee;

(c) he understands that by pleading guilty to the allegations, he is waiving the right to require the College to otherwise prove the case against him and the right to have a hearing;

(d) he understands that depending on the penalty ordered by the Discipline Committee, the decision of the Committee and a summary of its reasons, including reference to his name, may be published in the official publication of the College;

(e) he understands that any agreement between him and counsel for the College with respect to the penalty proposed does not bind the Discipline Committee;

(f) he understands and acknowledges that he is executing this Agreement voluntarily, unequivocally, and with the advice of legal counsel.

15. In light of the Admitted Facts and circumstances and the plea of guilt, the Ontario College of Teachers and the Member submit that the Discipline Committee find the Member guilty of professional misconduct.

DECISION

Having considered the Agreed Statement of Facts and Guilty Plea and the submissions of the parties, the Committee finds that the facts support a finding of professional misconduct. In particular, the Committee finds that the Member committed acts of professional misconduct as alleged, contrary to [Ontario Regulation 437/97, subsections ]1(1), 1(5), 1(12), 1(15), 1(16), 1(18), and 1(19).

REASONS FOR DECISION

The Member admitted the truth of the facts and exhibits referred to in paragraphs 1 to 11 of the Agreed Statement of Facts and Guilty Plea and pleaded guilty to the allegations of professional misconduct against him. He acknowledged and the Committee accepts that the Admitted Facts constitute conduct which is professional misconduct, contrary to Ontario Regulation 437/97, subsections 1(1), 1(5), 1(12), 1(15), 1(16), 1(18) and 1(19).

Paragraphs 7 and 8 of the Agreed Statement of Facts and Guilty Plea demonstrate that the Member provided false information or documents with respect to his professional qualifications, contrary to Ontario Regulation 437/97, subsection 1(1).

Paragraphs 3, 4, 5, 7 and 8 of the Agreed Statement of Facts and Guilty Plea demonstrate that the Member failed to maintain the standards of the profession, contrary to Ontario Regulation 437/97, subsection 1(5).

Paragraphs 7 and 8 of the Agreed Statement of Facts and Guilty Plea demonstrate that the Member signed or issued, in his professional capacity, a document that he knows or ought to have known contained a false, improper or misleading statement, contrary to Ontario Regulation 437/97, subsection 1(12).

Paragraphs 3, 4, 5, 7 and 8 of the Agreed Statement of Facts and Guilty Plea demonstrate that the Member 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).

Paragraphs 3, 4 and 5 of the Agreed Statement of Facts and Guilty Plea demonstrate that the Member 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).

Paragraphs 3, 4, 5, 7 and 8 of the Agreed Statement of Facts and Guilty Plea demonstrate that the Member 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).

Paragraphs 3, 4, 5, 7 and 8 of the Agreed Statement of Facts and Guilty Plea demonstrate that the Member engaged in conduct unbecoming a Member, contrary to Ontario Regulation 437/97, subsection 1(19).

JOINT SUBMISSION ON PENALTY

Through a Joint Submission on Penalty (Exhibit 3), the parties jointly submitted that the appropriate penalty to be imposed by the Discipline Committee in this matter would be that the Committee:

1. direct the Registrar of the Ontario College of Teachers to immediately revoke the certificate of qualification and registration of the Member, which Certificate the Member is to immediately surrender to the Registrar;

2. direct that there be publication of the finding and order of the Committee in summary form, in the official publication of the College, Professionally Speaking/Pour parler profession. The parties have not agreed on whether or not the Member’s name should be included and submissions will be made on that issue.

SUBMISSIONS ON PUBLICATION

Submissions of College Counsel

College Counsel submitted that publication with the name of the Member is warranted in this case. Publication with the name of the Member serves as a specific deterrent to the Member and as a general deterrent to the profession. College Counsel added that the Committee’s denunciation of the Member’s conduct through the publication of his name demonstrates to the public that acts of professional misconduct attract serious consequences. College Counsel concluded that publication with name informs the public and other members of the profession that matters before the Committee are resolved in an open and transparent manner.

College Counsel referred the Committee to three cases involving possession of child pornography and inappropriate pornographic images by a member: Ontario College of Teachers v. Welch, 2012 LNONCTD 55 (“Welch”); Ontario College of Teachers v. Teeple, 2014 LNONCTD 66; and Ontario College of Teachers v. Maycock, 2012 LNONCTD 45 (“Maycock”). College Counsel submitted that these cases were similar to the Member’s case and that revocation and publication with name were ordered in all instances.

Submissions of Member’s Counsel

Member’s Counsel submitted that the Committee has the discretion to order publication with or without the Member’s name and that publication with the name of the Member is not warranted in this case. The purposes of penalty, including specific deterrence, general deterrence, and transparency will be met through revocation of the Member’s Certificate. Member’s Counsel submitted that the facts that led to revocation in the Member’s case do not require the publication of the Member’s name. Member’s Counsel added that there is no value added by publishing the Member’s name in the College’s official publication. In order to protect his family’s privacy, Counsel for the Member stated that the Member has asked that his name not be published in Professionally Speaking/Pour parler profession.

Member’s Counsel submitted that the Committee should not rely on the cases presented by College Counsel, and noted that Welch, in particular, was dissimilar to the Member’s case.

PENALTY DECISION

The Committee accepts the Joint Submission on Penalty presented by the parties and makes an order in accordance with its terms, as set out above. With respect to the issue of publication, the Committee directs that there be publication of a summary of the finding and order of the Committee in the official publication of the College, Professionally Speaking/Pour parler profession, with the name of the Member.

REASONS FOR PENALTY DECISION

The Committee accepts the penalty jointly proposed by the parties. The Committee recognizes that, once it ensures that it has jurisdiction to make the order requested, the law confines the Committee’s role to determining whether the proposed penalty is so unreasonable that accepting it would bring the administration of justice or the discipline process into disrepute. The Committee finds that the penalty proposed in the Joint Submission on Penalty is proportionate to the misconduct committed by the Member and is reasonable given the circumstances of this case.

The Committee finds that the revocation of the Member’s certificate of qualification and registration is proportionate to the misconduct committed by the Member. The Member’s conduct was at the highest end of spectrum of professional misconduct. In particular, the Member was found guilty on September 27, 2007 of one count of taking an indecent photograph and 14 counts of making indecent photographs of children relating to images that he had downloaded from the internet, contrary to the United Kingdom Protection of Children Act, 1978. The Member’s laptop contained child pornography including more than 1700 pornographic images and videos. When he applied for a position as a long term occasional teacher with the Board, the Member did not disclose his criminal convictions.

The Member has forfeited the privilege of being a member of the teaching profession in Ontario and of holding a certificate of qualification and registration. His disgraceful, dishonourable and unprofessional conduct has jeopardized the public’s perception of teachers in the province and must be denounced in the strongest terms. As a panel of the Discipline Committee found in Maycock at paragraph 28, “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.” The Committee agrees. Through his egregious conduct, the Member has flagrantly abused his position of trust and authority. His reprehensible conduct warrants the most serious consequence available – revocation.

The Committee finds that publication with the Member’s name in Professionally Speaking/Pour parler profession is warranted. While the Committee recognizes the Member’s desire to protect his family’s privacy and notes that the Member has accepted responsibility for his actions and has cooperated with the College in this case, the aggravating factors in this case outweigh these mitigating factors. The Member’s conduct was at the highest end of the spectrum of professional misconduct. He was convicted of crimes relating to child pornography. His laptop contained more than 1700 pornographic images and videos of children. He failed to disclose his convictions when he applied for a position with the Board. He jeopardized the public’s perception of the teaching profession. The Member’s privacy interests are far outweighed by the need for deterrence, transparency, accountability and the protection of the public interest in this case.

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

Date: November 18, 2016 ______________________________

Tom Potter

Chair, Discipline Panel

______________________________ Stéphane Vallée, OCT

Member, Discipline Panel

Wes Vickers, OCT

Member, Discipline Panel