ATTENTION: In accordance with subsection 486.4 of the Criminal Code of Canada, any information that could identify the victim or a witness in this matter shall not be published.
DISCIPLINE COMMITTEE OF THE ONTARIO COLLEGE OF TEACHERS
IN THE MATTER OF the Ontario College of Teachers Act, 1996, and Ontario Regulation 437/97 thereunder;
AND IN THE MATTER OF a discipline proceeding against Youssef Benabdallah Chaouni, OCT, a member of the Ontario College of Teachers.
PANEL: Irene Cheung, OCT, Chair
Robert Gagné
Stéphane Vallée, OCT
BETWEEN: ) Alexandre Blanchard, ) McCarthy Tétrault LLP,
) for the Ontario College of Teachers,
ONTARIO COLLEGE OF TEACHERS ) assisted by Annie Lacroix,
) Law Clerk
– and – )
YOUSSEF BENABDALLAH CHAOUNI ) Youssef Benabdallah Chaouni
(CERTIFICATE #491788) ) was not present or represented
) Erica Richler,
) Steinecke Maciura LeBlanc, ) Independent Legal Counsel
) Heard: July 26, 2016
DECISION, REASONS FOR DECISION AND ORDER
This matter came on for hearing before a panel of the Discipline Committee (the “Committee”) of the Ontario College of Teachers (the “College”) on July 26, 2016 at Toronto.
A Notice of Hearing dated March 17, 2015 (Exhibit 1) was served on Youssef Benabdallah Chaouni (the “Member”), requesting his presence on March 31, 2015 to set a date for hearing, and specifying the charges. The hearing was subsequently set for July 26, 2016.
The Member was not in attendance at the hearing and was not represented by legal counsel. He did, however, prepare some written remarks that were submitted to the Committee.
Counsel for the College submitted an Affidavit of Annie Lacroix sworn July 19, 2016 (Exhibit 3), and a Supplemental Affidavit of Annie Lacroix (Exhibit 4) sworn July 25, 2016, to prove that the Member had been informed of the allegations against him, of the date and time of the hearing and of the penalty that could be sought by the Committee. In the affidavits, Ms. Lacroix, a law clerk with McCarthy Tétrault LLP, describes in detail her communication with the Member and provides proof of service of all required documents. On the basis of the affidavit [sic], 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 of the penalty that could be sought by the Committee. The Committee delayed the commencement of the hearing by approximately 15 minutes to enable the Member to attend at the hearing. Because he failed to do so, the Committee heard this matter in his absence.
ORDER OF NON-PUBLICATION
In R v. Youssef Chaouni-Benabdallah, the Honourable Justice P. F. Lalonde of the Ontario Court of Justice handed down an order of non-publication and non-disclosure (Exhibit 5, Tab D), pursuant to subsection 486.4 of the Criminal Code of Canada. The Committee is required to comply with this order and therefore prohibits the publication of any information that could identify the victim or witnesses.
ALLEGATIONS
The allegations against the Member in the Notice of Hearing are as follows:
IT IS ALLEGED that Youssef Benabdallah Chaouni is guilty of professional misconduct as defined in subsections 30(2) and 40(1.1) of the Ontario College of Teachers Act, 1996 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 psychologically or emotionally, contrary to Ontario Regulation 437/97, subsection 1(7.2);
(c) he abused a student sexually, contrary to Ontario Regulation 437/97, subsection 1(7.3), and/or engaged in sexual abuse as defined in Part 1 of the Act;
(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 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 contravened a law such that the contravention has caused or may cause a student who is under the member’s professional supervision to be put at or to remain at risk, contrary to Ontario Regulation 437/97, subsection 1(17);
(g) 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
(h) he engaged in conduct unbecoming a Member, contrary to Ontario Regulation 437/97, subsection 1(19).
PARTICULARS OF THESE ALLEGATIONS ARE AS FOLLOWS
The Member is a member of the Ontario College of Teachers.
At all material times, the Member was employed by the [XXX] District School Board as a teacher of [XXX]. At all material times, he was teaching at [XXX] School in Ottawa.
Between November 1 and November 17, 2011, the Member, for a sexual purpose, touched a Grade [XXX] female student.
The Member thereby contravened sections 151 and 271(1) of the Criminal Code of Canada.
On March 21, 2014, the Member was found guilty of two counts of sexual assault and two counts of, for a sexual purpose, touching directly with a part of his body any part of the body of a person under the age of 16 years, contrary to sections 151 and 271(1) of the Criminal Code of Canada.
MEMBER’S PLEA
Because the Member was not in attendance at the hearing nor was he represented by legal counsel, the Committee proceeded on the assumption that he 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 Youssef Benabdallah Chaouni (Exhibit 2), which indicates that the Member was a member of the College at the time of the alleged incidents. The College also entered into evidence a Brief of Court Documents - Her Majesty the Queen v. Youssef Benabdallah Chaouni (Exhibit 5), which contains the following documents:
Court Information and Appearances;
Prohibition Order, dated October 13, 2015;
[XXX];
Indictment;
Transcript: R v. Youssef Chaouni-Benabdallah, Proceedings at Trial before the Honourable Justice P. F. Lalonde, dated March 21, 2014; and
Transcript: R v. Youssef Chaouni-Benabdallah, Reasons for Sentence Delivered by the Honourable Justice P. F. Lalonde, dated June 20, 2014.
The evidence presented in Exhibit 5 confirms that, on March 21, 2014, in the Ontario Court of Justice, the Member was found guilty of two counts of sexual assault and two counts of, for a sexual purpose, touching directly with a part of his body any part of the body of a person under the age of 16 years, contrary to sections 151 and 271(1) of the Criminal Code of Canada.
SUBMISSIONS ON FINDING
College Counsel described the Member’s criminal history in detail and submitted that the Member’s case involved sexual abuse. Counsel also submitted that the Member’s conduct, as detailed in the Brief of Court Documents (refer to Exhibit 5), and the resultant criminal conviction, provided sufficient basis to justify a finding of professional misconduct with respect to all of the allegations of misconduct set out in the Notice of Hearing. The Member had legal representation during his criminal proceedings.
DECISION
Having considered the evidence and jurisprudence produced, the onus and standard of proof, the submissions by College Counsel and the Member’s written remarks, the Committee finds that the facts support a finding of professional misconduct. In particular, the Committee finds that Youssef Benabdallah Chaouni committed acts of professional misconduct as alleged in the Notice of Hearing, contrary to Ontario Regulation 437/97, subsections 1(5), 1(7.2), 1(7.3), 1(15), 1(16), 1(17), 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 as proof, in this case, that the Member committed the criminal offences outlined therein. The Member was found guilty and convicted of multiple criminal offences 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. The Committee further admits as incidental to the certified copy of the Court Information, the transcript of the proceedings at which the conviction occurred, for the purposes of explaining the finding of guilt.
Based on the evidence contained in the Brief of Court Documents, the College has proven, on a balance of probabilities, that between November 1 and November 17, 2011, the Member, for a sexual purpose, touched a Grade [XXX] female student. The facts relate specifically to two incidents in November 2011. Firstly, during a practice lockdown exercise in his class, he touched a student’s buttocks. He then asked the student if she liked it, to which she replied no. Secondly, he again put his hand down the same student’s pants and touched her buttocks during a presentation in front of the class.
The Honourable Justice P. F. Lalonde of the Ontario Court of Justice found that the aforementioned incidents had taken place beyond any reasonable doubt. Notwithstanding the Member’s written remarks (which the Committee found largely irrelevant as concerns this hearing), the fact remains that on March 21, 2014, the Member was found guilty of two counts of sexual assault and two counts of, for a sexual purpose, touching directly with a part of his body any part of the body of a person under the age of 16 years, contrary to sections 151 and 271(1) of the Criminal Code of Canada. The College has therefore shown that the Member is guilty of professional misconduct as alleged in the Notice of Hearing.
The Committee finds the Member’s conduct unacceptable and reprehensible. He abused his position of trust and authority in a repellant manner. Accordingly, the Committee finds that the Member’s sexual abuse of a Grade [XXX] female student constitutes professional misconduct contrary to Ontario Regulation 437/97, subsections 1(5), 1(7.2), 1(7.3), 1(15), 1(16), 1(17), 1(18) and 1(19).
SUBMISSIONS ON PENALTY
Counsel for the College submitted that the revocation of the Member’s Certificate of Qualification and Registration and the publication of his name is an appropriate penalty for misconduct of such a serious nature. Counsel maintained that the matter is one of extremely serious sexual abuse in the commission of which the Member demonstrated complete indifference to the wellbeing of this young and vulnerable student. He completely abused his position of trust and authority as a teacher. Revocation of certificate is appropriate in such serious cases.
College Counsel added that publication of the Member’s name is warranted. It acts as a specific deterrent for the Member and serves as a general deterrent for the teaching profession. Counsel maintained that by exposing the Member’s conduct through the publication of his name, the Committee would convey to the public that acts of professional misconduct have serious consequences. Publication is also important because it demonstrates to the general public and to the teaching profession that matters brought before the Committee are settled openly and transparently.
College Counsel referred the Committee to two cases involving sexual misconduct by a member of the College: Ontario College of Teachers v. Gervais, 2015 LNONECD 63 and Ontario College of Teachers v. O’Keefe, 2013 LNONECD 54. Counsel stated that these cases were similar to the Member’s and that publication with name was ordered in both instances.
PENALTY DECISION
The Committee makes the following penalty order:
The Committee directs the College Registrar to revoke the Member’s Certificate of Qualification and Registration; and
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 the revocation of the Member’s Certificate of Qualification and Registration is appropriate. The Member’s conduct with regard to this young student is heinous and reprehensible. His repeated sexual misconduct, that is, putting his hand down the student’s pants and touching her buttocks, warrants the Committee’s order of revocation, the most severe penalty it can impose. The seriousness of the Member’s conduct was traumatic for the [XXX]-year-old girl. His blatant actions left the Grade [XXX] student terrified, confused, saddened and disenchanted by his treatment of her. His actions have resulted in severe, long-term consequences. The Member has shaken public trust in the teaching profession. Consequently, he loses the privilege of membership.
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 teaching profession 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: September 1, 2016
Irene Cheung, OCT
Chair, Discipline Panel
Robert Gagné
Member, Discipline Panel
Stéphane Vallée, OCT
Member, Discipline Panel