DISCIPLINE COMMITTEE OF THE ONTARIO COLLEGE OF TEACHERS
Citation: Ontario College of Teachers v Somerfield 2019 ONOCT 27
Date: 2019-05-01
DECISION, REASONS FOR DECISION AND ORDER
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
Gary George Somerfield, a member of the Ontario College of Teachers at all material times.
BETWEEN:
ONTARIO COLLEGE OF TEACHERS
– and –
GARY GEORGE SOMERFIELD (REGISTRATION #169611)
PANEL: Irene Dembek OCT, Chair Sara Nouini, OCT Tom Potter
HEARD: April 29, 2019
Jason Bennett for Ontario College of Teachers
No one appearing for Gary George Somerfield
Rebecca Durcan of Steinecke Maciura LeBlanc, Independent Legal Counsel
PUBLICATION BAN: Pursuant to subsection 32.1(3) of the Ontario College of Teachers Act, 1996, no person shall publish the identity of, or any information that could disclose the identity of, any person who is under 18 years old and is a witness in a hearing or is the subject of evidence in a hearing.
This matter came on for hearing before a panel of the Discipline Committee (the “Committee”) on April 29, 2019 at the Ontario College of Teachers (the “College”) at Toronto.
A Notice of Hearing dated February 11, 2019 (Exhibit 1) was served on Gary George Somerfield (the “Member”), inviting him to participate in the scheduling of the hearing and specifying the allegations. The hearing was subsequently set for April 29, 2019.
The Member was not in attendance for the hearing and did not have legal representation. The Committee was advised at the outset of the hearing that the parties had entered into an agreement with respect to the hearing. College Counsel also noted that, although Ms. Dembek and Mr. Potter had heard a prior discipline matter involving the Member in October 2016, the Member consented, via email (see Exhibit 3), to having these same panel members consider the present matter.
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 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, 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).
AGREED STATEMENT OF FACTS
College Counsel presented the Committee with the parties’ Agreed Statement of Facts and Guilty Plea (Exhibit 4), which provides the following:
Gary George Somerfield was, at all material times, a member of the Ontario College of Teachers. Attached hereto and marked as Appendix “A” is a copy of the Ontario College of Teachers Registered Member Information with respect to the Member.
At all material times, the Member was a retired teacher formerly employed by the Lakehead District School Board (the “Board”). The Member retired from the Board on March 2, 2014.
On January 25, 2017, the Thunder Bay Police Service executed a search warrant at the Member’s residence during which officers seized 11 electronic devices belonging to the Member. Forensic analysis revealed that two of those items contained 58 unique digital images that met the definition of child pornography under the Criminal Code (Canada).
On February 28, 2018, the Member was arrested and charged with:
(a) one count of possessing child pornography (possession), contrary to section 163.1(4) of the Criminal Code (Canada); and
(b) one count of having in his possession for the purpose of making available child pornography (distribution), contrary to section 163.1(3) of the Criminal Code (Canada).
Attached hereto and marked as Appendix “B” is a certified true copy of the Information of Peace Officer William Boote of the Thunder Bay Police Service.
Each of the above acts constitutes a “prohibited act involving child pornography” as defined in section 1 of the Act.
On March 1, 2017, the Board notified the Ontario College of Teachers that the Member had been charged with child pornography offences under the Criminal Code (Canada). Attached hereto and marked as Appendix “C” is a copy of the Board’s letter to the College dated March 1, 2017 and received on March 10, 2017.
On July 24, 2017, the Registrar of the Ontario College of Teachers initiated a complaint against the Member.
On November 20, 2017, the Member pleaded guilty to possession of child pornography, contrary to section 163.1(4) of the Criminal Code (Canada), while the charge of making child pornography available (distribution) was withdrawn. Attached hereto and marked as Appendix “D” is a certified copy of Proceedings on Arraignment and Guilty Plea before the Honorable Madam Justice C. M. Brochu, dated November 20, 2017.
On November 20, 2017, the Member was sentenced to six months of imprisonment, received a three-year probation order, and was made subject to a number of ancillary orders. Attached hereto and marked as Appendix “E” is a certified copy of Reasons for Judgment and Sentence of the Honorable Madam Justice C. M. Brochu, dated November 20, 2017.
On December 11, 2018, a panel of the College’s Investigation Committee considered the Registrar’s complaint and referred this matter to the College’s Discipline Committee.
GUILTY PLEA
By this document,1 the Member admits the truth of the facts and appendices referred to in paragraphs 1 to 10 above (the “Admitted Facts”).
The Member hereby acknowledges that paragraphs 3, 4(a), 8 and 9 of the Admitted Facts constitute conduct that 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(5), 1(15), 1(16), 1(18) and 1(19).
By signing 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 he is pleading guilty to the allegations, and is waiving the right to require the College to prove the case against him and the right to have a hearing;
(d) he understands that the Discipline Committee’s decision and reasons shall be published on the College’s website, and that a summary of the Discipline Committee’s decision and reasons, including his name, shall be published in the official publication of the College;
(e) he understands that any agreement between his counsel [sic] and the College with respect to the penalty does not bind the Discipline Committee; and
(f) he understands and acknowledges that he is executing this agreement voluntarily, unequivocally, and with the advice of legal counsel.
- In light of the Admitted Facts and circumstances and the plea of guilt, the College 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 College Counsel, the Committee rendered an oral decision on April 29, 2019 finding that the Member engaged in acts of professional misconduct as alleged, contrary to Ontario Regulation 437/97, subsections 1(5), 1(15), 1(16), 1(18) and 1(19).
REASONS FOR DECISION
The Member admitted the truth of the facts and appendices referred to in paragraphs 1 to 10 of the Agreed Statement of Facts and Guilty Plea and admitted 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(5), 1(15), 1(16) , 1(18) and 1(19).
Paragraphs 3, 4(a), 8 and 9 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 3, 4(a), 8 and 9 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 subsection 264(1) thereof or the Regulations made under that Act, contrary to Ontario Regulation 437/97, subsection 1(15).
Paragraphs 3, 4(a), 8 and 9 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(a), 8 and 9 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(a), 8 and 9 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 5), the parties jointly submitted that the appropriate penalty to be imposed in this matter would be that the Committee make an order:
reprimanding the Member, pursuant to section 30.2(1)(a) of the Act; and
directing the Registrar of the Ontario College of Teachers to immediately revoke the Certificate of Qualification and Registration of the Member, pursuant to section 30.2(1)(c)(ii)2 of the Act.
PENALTY DECISION
In an oral decision rendered on April 29, 2019, the Committee accepted the Joint Submission on Penalty presented by the parties and made an order in accordance with its terms, as set out above.
REASONS FOR PENALTY DECISION
The Member’s misconduct consisted of a prohibited act involving child pornography as described at subsection 30.2(2) of the Act. The Committee is required to, and has therefore, made an order: requiring that the Member be reprimanded by the Committee; and directing the Registrar to revoke the Member’s certificate of qualification and registration. The Committee notes that it has no discretion in this regard. The Committee denounces the Member’s egregious misconduct in the strongest terms.
With respect to the form of the reprimand, the Committee accepts College Counsel’s submission that it is reasonable in the circumstances to order that the Member’s reprimand be delivered in writing.
The Committee is satisfied that the penalty is appropriate in the circumstances and meets the principle of serving and protecting the public interest.
Date: May 1, 2019
______________________________
Irene Dembek, OCT
Chair, Discipline Panel
______________________________
Sara Nouini, OCT
Member, Discipline Panel
______________________________
Tom Potter
Member, Discipline Panel
Footnotes
- For the purposes of paragraphs 11 and 13, this “document” refers to the Agreed Statement of Facts and Guilty Plea.
- The mandatory penalty provisions under section 30.2 of the Act have undergone legislative amendments, which came into effect on April 3, 2019. The parties’ Joint Submission on Penalty was signed before these amendments came into effect and reflects the numbering of the Act that was in effect at the time that the parties concluded their agreement. Despite the renumbering and other legislative amendments to section 30.2 of the Act, revocation was (at the time that the parties concluded their agreement) and still is a mandatory penalty in cases where a member has engaged in a prohibited act involving child pornography.