Ontario College of Teachers v. Fiocca, 2019 ONOCT 39 — Ontario College of Teachers | minicounsel

Citation: Ontario College of Teachers v Fiocca 2019 ONOCT 39

Date: 2019-05-15

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

A. Jay Fiocca, a member of the Ontario College of Teachers.

BETWEEN:

ONTARIO COLLEGE OF TEACHERS

– and –

A. JAY FIOCCA (REGISTRATION #190848)

PANEL: Jonathan Rose, Chair Diane Ballantyne, OCT Stéphane Vallée, OCT

HEARD: May 15, 2019

Jason D. Bennett for Ontario College of Teachers

No one appearing for A. Jay Fiocca

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.

By order of Justice F. O’Donnell of the Ontario Court of Justice, there is also a publication ban on any information that could identify the victims or a witness in this matter, pursuant to subsection 486.4 of the Criminal Code of Canada.

This matter came on for hearing before a panel of the Discipline Committee (the “Committee”) on May 15, 2019 at the Ontario College of Teachers (the “College”) at Toronto.

A Notice of Hearing dated January 21, 2019 (Exhibit 1) was served on A. Jay Fiocca (the “Member”), inviting him to participate in the scheduling of the hearing and specifying the allegations.

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.

THE ALLEGATIONS

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

IT IS ALLEGED that A. Jay Fiocca 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 contravened a law, the contravention of which 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).

AGREED STATEMENT OF FACTS

College Counsel presented the Committee with the parties’ Agreed Statement of Facts and Guilty Plea (Exhibit 2), which provides the following:

A. Jay Fiocca is 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 employed by the Niagara Catholic School Board (the “Board”) as a teacher at [XXX] School (the “School”) in St. Catharines, Ontario.
On August 30, 2017, the Niagara Regional Police Service executed a search warrant at the Member’s residence during which officers seized, among other items, a desktop computer and certain electronic devices. Forensic analysis of those items revealed 65 unique digital images that met the definition of child pornography under the Criminal Code (Canada).
On August 31, 2017, the Member was arrested and charged with:

(a) one count of making child pornography, contrary to section 163.1(2) of the Criminal Code (Canada);

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

Attached hereto and marked as Appendix “B” is a copy of the Information of Peace Officer Michael Kelly of the Niagara Regional Police Service.

Each of the above acts constitutes a “prohibited act involving child pornography” as defined in section 1 of the Act.
On September 27, 2017, the Board notified the Ontario College of Teachers that the Member had been charged with child pornography offences under the Criminal Code of Canada and, effective September 1, 2017, had been suspended without pay and barred from all Board locations. Attached hereto and marked as Appendix “C” is a copy of the Board’s letter to the College dated September 21, 2017 and received September 27, 2017.
On November 2, 2017, the Registrar of the Ontario College of Teachers initiated a complaint against the Member.
On December 5, 2017, the Member, through legal counsel, accepted the College’s offer to put its investigation on hiatus pending the resolution of the criminal matter.
On August 3, 2018, the Member pleaded guilty to possession of child pornography, contrary to section 163.1(4) of the Criminal Code (Canada), while the other two charges, making child pornography and distributing child pornography, were withdrawn. Attached hereto and marked as Appendix “D” is a certified Excerpt of Proceedings before the Honourable Justice F. O’Donnell, at St. Catharines, Ontario.
On August 30, 2018, 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 the Sentencing Hearing transcript before the Honourable Justice F. O’Donnell, at St. Catharines, Ontario.
On October 23, 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 1-11 above (the “Admitted Facts”).
The Member hereby acknowledges that paragraphs 3, 4(b) and 9 of 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(5), 1(15), 1(16) , 1(17), 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 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 College Counsel, the Committee rendered an oral decision on May 15, 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(17), 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 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(17), 1(18) and 1(19).

Paragraphs 3, 4 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 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 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 and 9 of the Agreed Statement of Facts and Guilty Plea demonstrate that the Member contravened a law, the contravention of which 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).

Paragraphs 3, 4 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 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 4), 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.

Although not addressed in the Joint Submission on Penalty, College Counsel requested that the reprimand be delivered in writing, which the Committee accepted.

PENALTY DECISION

In an oral decision rendered on May 15, 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. The reprimand will be delivered in writing.

REASONS FOR PENALTY DECISION

The Member’s misconduct consisted of or included a prohibited act involving child pornography as described in subsection 30.2(2) of the Act. Given this finding, section 30.2(1) of the Act provides that the Committee must make 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 makes both of these orders. The Committee notes that it has no discretion in this regard. The Committee denounces the Member’s misconduct in the strongest terms.

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 15, 2019

Jonathan Rose

Chair, Discipline Panel

Diane Ballantyne, OCT

Member, Discipline Panel

Stéphane Vallée, OCT

Member, Discipline Panel

Footnotes

This “document” in paragraphs 12 and 14 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 drafted before these amendments came into effect and reflects the numbering of the Act that was in effect at the time that the Joint Submission on Penalty was drafted in March 2019. Despite the renumbering and other legislative amendments to section 30.2 of the Act, revocation was (at the time that the Joint Submission on Penalty was drafted in March 2019) and still is a mandatory penalty in cases where a member has engaged in a prohibited act involving child pornography.