Ontario College of Teachers v. Mallette, 2017 ONOCT 60

DISCIPLINE COMMITTEE OF THE ONTARIO COLLEGE OF TEACHERS

Citation: Ontario College of Teachers v Mallette 2017 ONOCT 60

Date: 2017-08-23

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

Brian Anthony Mallette, a member of the Ontario College of Teachers.

PANEL: Tom Potter, Chair Sara Nouini, OCT

Wes Vickers, OCT

BETWEEN: )

) Zirka Jakibchuk,

) for Ontario College of Teachers,

ONTARIO COLLEGE OF TEACHERS ) assisted by Fiona Wang,

) Law Clerk

• and – )

) BRIAN ANTHONY MALLETTE ) Brian Anthony Mallette

(CERTIFICATE #458298) ) is self-represented but was

) not present

) Erica Richler,

) Steinecke Maciura LeBlanc, ) Independent Legal Counsel ) ) ) Heard: August 16, 2017

DECISION, REASONS FOR DECISION AND ORDER

This matter came on for hearing before a panel of the Discipline Committee (the “Committee”) on August 16, 2017 at the Ontario College of Teachers (the “College”) at Toronto.

A Notice of Hearing (Exhibit 1), dated July 15, 2016 was served on Brian Anthony Mallette (the “Member”), requesting his attendance before the Committee on August 24, 2016 to set a date for a hearing, and specifying the charges. The hearing was subsequently set for August 16, 2017.

The Member was not in attendance for the hearing and did not have legal representation.

Counsel for the College submitted an Affidavit of Fiona Wang (Exhibit 2) sworn August 11, 2017, to prove that the Member had been informed of the allegations against him, the time and date of the hearing, as well as the penalty being sought. In this affidavit, Ms. Wang, a law clerk with the College, outlines her communications with the Member and provides proof of the numerous attempts the College made to serve the Member by process server, registered mail, courier and email of all required documents.

Counsel for the College also submitted an Affidavit of Cheryl Fernandes-Stechishin (Exhibit 3) sworn July 20, 2017, to prove that the Member had received the emails sent to him by College Counsel, including the Notice of Hearing, Disclosure and notice of hearing date, at one of his last-known email addresses. In this affidavit, Ms. Fernandes-Stechishin, the hearings coordinator with the College, stated that she received a message from the Member in which he indicated that he had received communications from the College but opted not to respond. Based on these affidavits, the Committee was satisfied that the Member had been properly served with the Notice of Hearing and all disclosure documents and was aware of the time and date of the hearing and the penalty being sought. The Committee delayed the start of the hearing by approximately 20 minutes to allow the Member time to appear. The Member did not appear. The Committee therefore heard this matter in the absence of the Member.

THE ALLEGATIONS

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

IT IS ALLEGED that Brian Anthony Mallette 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 under that Act, contrary to Ontario Regulation 437/97, subsection 1(15);

(c) 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);

(d) 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);

(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. Brian Anthony Mallette is a member of the Ontario College of Teachers.

2. At all material times, the Member was employed by the Toronto District School Board as an occasional teacher.

3. Between October 21, 2012 and March 27, 2015, the Member accessed child pornography and was in possession of child pornography.

4. On November 23, 2015, the Member pleaded guilty to and was found guilty of:

(a) one count of possessing child pornography, contrary to section 163.1(4) of the Criminal Code of Canada; and

(b) one count of accessing child pornography, contrary to section 163.1(4.1) of the Criminal Code of Canada.

5. On January 8, 2016, the Member was sentenced to four months of imprisonment and placed on probation for three years.

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, 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 Brian Anthony Mallette (Exhibit 4), 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 Court Document Brief between Ontario College of Teachers and Brian Anthony Mallette (Exhibit 5), which contains the following documents:

1. Transcript of the Proceedings of the Honourable Justice M. McLeod dated November 23, 2015 and January 8, 2016;

2. Transcript of the Proceedings of the Honourable Justice M. McLeod dated January 6, 2016; and

3. Court Documents:

(a) Court Information with Appearance Dates;

(b) General Prosecution Summary;

(c) New Court Information with Appearance Dates and Disposition;

(d) Original Court Information with Appearance Dates and Disposition;

(e) Order to Comply with [xxx] Act;

(f) Prohibition Order; and

(g) Adult Probation Order.

The evidence presented in Exhibit 5 confirms that on November 23, 2015, in the Ontario Court of Justice, the Member pleaded guilty to and was found guilty of one count of possessing child pornography and one count of accessing child pornography, contrary to the Criminal Code of Canada.

SUBMISSIONS ON FINDING

College Counsel described the Member’s criminal actions in details, which involved the possession and accessing of child pornography gathered from the internet. The images and videos collected by the Member mostly depicted pubescent boys, some looking as young as 10 or 12 years old. According to College Counsel, the Member’s conduct, as detailed in the record of the criminal proceedings (see Exhibit 5) and the resultant criminal convictions, provide a sufficient basis to justify a finding of professional misconduct under all of the heads of misconduct alleged in the Notice of Hearing. The Member had legal representation during his criminal proceedings, he pleaded guilty to the possession and accessing of child pornography charges voluntarily and with the advice of legal counsel, and he did not appeal the court’s decision.

DECISION

Having considered the evidence, onus and standard of proof, and the submissions made by College Counsel, 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(5), 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 “Committee’s Rules”), 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 pleaded guilty to and was found guilty of two criminal offences before a Canadian Court, no appeal has been taken, and the time for an appeal has expired.

In addition, pursuant to Rule 13.04 of the Committee’s Rules, the Committee admits as ancillary to the certified copy of the Court Information, the findings of fact contained in the related decision before the Ontario Court of Justice involving the Member. 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.

Based on the evidence contained within the Court Document Brief, the College has proven, on a balance of probabilities, that the Member accessed and was in possession of child pornography between October 21, 2012 and March 27, 2015. On November 23, 2015, the Member pleaded guilty to and was found guilty of one count of possessing child pornography and one count of accessing child pornography, contrary to subsections 163.1(4) and 163.1(4.1) of the Criminal Code of Canada. On January 8, 2016, the Member was sentenced to four months of imprisonment and he was placed on probation for three years.

The Member’s conduct was repugnant. As set out by Justice McLeod in his reasons for judgment on January 8, 2016 (see Exhibit 5 at Tab 1), the Member had in his possession approximately 150 images of child pornography and 40 video files of varying length. Virtually all of the images and videos depicted pubescent boys, some looking as if they could be 10 to 12 years old. Most of the images and videos depicted acts of masturbation, and some involved fellatio or anal penetration. Most of the videos appeared to be webcam recordings, and one of the videos included adult participation. Justice McLeod described the Member’s collection as relatively modest (both in terms of the size of the Member’s collection and the nature of the acts depicted) compared to others cases involving the possession of child pornography. There was no indication of coercion, violence, bondage, bestiality or other features that courts have considered to heighten the seriousness of the images and videos beyond what they are.

Although the Member’s child pornography collection may not have been as large or as violent as that of other offenders, the Committee vehemently denounces the Member’s conduct all the same. It is completely unacceptable for members of the teaching profession to possess and access child pornography. Through his egregious conduct, the Member has jeopardized the public’s trust in the teaching profession and he has perpetuated the cycle of violence and abuse involving children who are the subjects of pornography. The Member’s despicable conduct was a clear breach of the standards of the profession. Possessing and accessing child pornography represents such a marked departure from the expectations placed on members of the profession that it self-evidently constitutes professional misconduct. Accordingly, the Committee finds that the Member’s prohibited acts involving child pornography constitute acts of professional misconduct contrary to Ontario Regulation 437/97, subsections 1(5), 1(15), 1(16), 1(17), 1(18) and 1(19).

SUBMISSIONS ON PENALTY

College Counsel submitted that committing prohibited acts involving child pornography is one of the enumerated acts of professional misconduct listed in subsection 30.2(2) of the Act. Therefore, pursuant to subsection 30.2(1) of the Act, the Committee has no discretion with respect to penalty and must order that the Member receive a reprimand and that his Certificate of Qualification and Registration be revoked.

PENALTY DECISION

The Committee makes the following order as to penalty:

1. The Committee directs the Registrar of the Ontario College of Teachers (the “Registrar”) to immediately revoke the Certificate of Qualification and Registration of Brian Anthony Mallette (the “Member”), which Certificate the Member is to immediately surrender to the Registrar; and

2. The Committee directs that the Member appear before the Committee within 90 days of the date of the Decision, Reasons for Decision and Order of the Discipline Committee, on a date to be arranged by the Member, to receive a reprimand, which will be delivered in person at the offices of the Ontario College of Teachers, 101 Bloor Street W., Toronto, Ontario, and the fact of the reprimand is to be recorded on the Register of the Ontario College of Teachers.

REASONS FOR PENALTY

The Committee recognizes that the Member’s conduct involving a prohibited act involving child pornography is one of the enumerated acts of professional misconduct listed in subsection 30.2(2) of the Act. Pursuant to subsection 30.2(1) of the Act, the Committee therefore must make an order: 1) requiring that the Member be reprimanded by the Committee; and 2) directing the Registrar to revoke any certificate held by the Member under the Act. The Committee notes that it has no discretion in this regard and is of the opinion that the reprimand is best delivered to the Member in person. The Committee denounces the Member’s egregious conduct in the strongest terms.

Publication of this decision with the Member’s name is now mandatory in accordance with subsection 45.1 of the Act. Accordingly, the Committee’s decision and reasons will be published with the Member’s name on the College’s website and a summary will be published with the Member’s name in the official publication of the College, Professionally Speaking/Pour parler profession.

The Committee is satisfied that the finding and the penalty is appropriate in the circumstances and meet the principle of serving and protecting the public interest.

Dated: August 23, 2017

______________________________ Tom Potter

Chair, Discipline Panel

______________________________ Sara Nouini, OCT Member, Discipline Panel

Wes Vickers, OCT

Member, Discipline Panel