DISCIPLINE COMMITTEE OF THE ONTARIO COLLEGE OF TEACHERS

Citation: Ontario College of Teachers v Danio 2019 ONOCT 42

Date: 2019-04-24

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

Martin Frederick S. Danio, a member of the Ontario College of Teachers.

BETWEEN:

ONTARIO COLLEGE OF TEACHERS

– and –

MARTIN FREDERICK S. DANIO (REGISTRATION #240729)

PANEL: Irene Dembek, OCT, Chair Alicia Nunn, OCT Jonathan Rose

HEARD: April 12, 2019

Jean-Francois Schaan of the Ontario College of Teachers

No one appearing for Martin Frederick S. Danio

Erica Richler 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 12, 2019 at the Ontario College of Teachers (the “College”) at Toronto.

An Amended Notice of Hearing¹ was served on Martin Frederick S. Danio (the “Member”) dated February 11, 2019 (Exhibit 1) inviting him to participate in the scheduling of the hearing and specifying the allegations. The hearing was subsequently set for April 12, 2019.

The Member did not attend 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 Amended 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 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:

1. Martin Frederick S. Danio is a member of the Ontario College of Teachers. Attached and marked as Appendix “A” is a copy of the Ontario College of Teachers Registered Member Information with respect to the Member.

2. At all material times, the Member was employed by the Peel District School Board (the “Board”) as a [XXX] teacher at [XXX] School (the “School”) in Mississauga, Ontario.

3. On or about September 28, 2015, a property restoration company (the “Company”) contacted the Peel Regional Police (the “Police”) to report the discovery of a photo album (the “Album”) that contained images that might constitute child pornography. The Company had removed the Album from the Member’s residence after a flood.

4. On or about September 29, 2015, the Police attended the Company’s facilities, viewed the Album and determined that some images it contained met the Criminal Code (Canada) definition of child pornography.

5. On or about September 29, 2015, the Member was arrested and charged with one count of possession of child pornography, contrary to subsection 163.1(4) of the Criminal Code (Canada).

6. On or about September 30, 2015, the Board assigned the Member to home.

7. On or about September 30, 2015, the Police executed search warrants at the Company’s facilities and the Member’s residence, seizing binders, frames, photographs, VHS tapes, CDs, DVDs, external hard drives, SD cards, a camera and a computer. When the Police analyzed these items, they found thousands of images categorized as child pornography, along with several movies categorized as child pornography.

8. On or about October 6, 2015, the Member was released on a recognizance of bail. Attached and marked as Appendix “B” is a certified true copy of the Member’s recognizance of bail, dated October 6, 2015.

9. On or about January 15, 2016, the Member was charged with one count of failing to comply with a condition of an undertaking or recognizance, contrary to subsection 145(3) of the Criminal Code (Canada).

10. On January 24, 2016, the Member retired from the Board.

11. On January 26, 2016, the Member was released on a recognizance of bail. Attached and marked as Appendix “C” is a certified true copy of the Member’s recognizance of bail, dated January 26, 2016.

12. On January 16, 2017, the Member pleaded guilty to, and was convicted of, one count of possession of child pornography, contrary to subsection 163.1(4) of the Criminal Code (Canada). The charge of failing to comply with a condition of an undertaking or recognizance, contrary to subsection 145(3) of the Criminal Code (Canada) was withdrawn at the request of the Crown. Attached and marked as Appendix “D” is a certified copy of Proceedings at Trial before the Honourable Justice K. L. McLeod on January 16, 2017.

13. On January 30, 2017, the Member was sentenced to a 15-month custodial sentence, less credit for pre-trial custody, to be followed by 18 months’ probation. The Member was also made subject to a number of ancillary orders. Attached and marked as Appendix “E” and Appendix “F” are a certified copy of the Reasons for Sentence before the Honourable Justice K. L. McLeod on January 30, 2017 and a copy of the Member’s Adult Probation Order, dated January 30, 2017.

14. The Member did not appeal his conviction and/or sentence.

15. Attached and marked as Appendix “G” is a copy of the Court Information pertaining to the Member’s guilty plea and conviction.

GUILTY PLEA

16. By this document², the Member admits the truth of the facts and exhibits referred to in paragraphs 1 to 15 above (the “Admitted Facts”).

17. 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(5), 1(15), 1(16), 1(17), 1(18), and 1(19).

18. 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 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 him and counsel for the College with respect to the penalty proposed in this document does not bind the Discipline Committee;

(f) he understands and acknowledges that he is executing this agreement voluntarily, unequivocally, and without the advice of legal counsel.

19. In light of the Admitted Facts and the Member’s 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 College Counsel, the Committee rendered an oral decision on April 12, 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 15 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 3-5, 7, 9, 12-13 and 15 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 3-5, 7, 9, 12-13 and 15 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 3-5, 7, 9, 12-13 and 15 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 3-5, 7, 9, 12-13 and 15 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 3-5, 7, 9, 12-13 and 15 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 3-5, 7, 9, 12-13 and 15 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 in this matter would be that the Committee:

1. direct that the Member receive a reprimand, and that the fact of the reprimand is to be recorded on the Register of the Ontario College of Teachers (the “Register”); and

2. direct the Registrar of the Ontario College of Teachers (the “Registrar”) to immediately revoke the Certificate of Qualification and Registration of the Member, which Certificate the Member is to immediately surrender to the Registrar.

PENALTY DECISION

In an oral decision rendered on April 12, 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.

With respect to the form of the reprimand, the Committee ordered that the reprimand be delivered in writing.

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 the discipline process into disrepute or be otherwise contrary to the public interest. 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 penalty proposed by the parties is also within a reasonable range, based on the following analogous case presented by College Counsel: Ontario College of Teachers v. Coulter, 2017 ONOCT 10.

Reprimand

The Committee finds that the Member’s egregious misconduct warrants a reprimand by his peers. The Member was found guilty of a very serious criminal offense, possession of child pornography. The reprimand will allow the Committee to directly address its concerns with the Member and will serve as a specific deterrent. Recording the fact of the reprimand on the Register will serve as a general deterrent to other members of the profession.

Given that the Member took no position with respect to the form of the reprimand and that he was not present, 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.

Revocation

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 and therefore necessitates the imposition of a penalty which strongly denounces his reprehensible conduct. The Member pled guilty and was found guilty on January 16, 2017 of one count of possession of child pornography, contrary to subsection 163.1(4) of the Criminal Code (Canada). A number of the Member’s items were seized by the police and when the police analyzed these items they found thousands of images categorized as child pornography, along with several movies categorized as child pornography.

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. Child pornography is a serious criminal offence, and possession of child pornography perpetuates a market which thrives on the abuse of children. Through his egregious conduct, the Member has flagrantly abused his position of trust and authority. His repugnant conduct warrants revocation - the most serious consequence available.

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

Date: April 24, 2019

______________________________

Irene Dembek, OCT

Chair, Discipline Panel

______________________________

Alicia Nunn, OCT

Member, Discipline Panel

______________________________

Jonathan Rose

Member, Discipline Panel

Footnotes

1. 1The Amended Notice of Hearing added Ontario Regulation 437/97, subsection 1(17) and removed section 1 of the Act, which stated that the Member engaged in a prohibited act of child pornography. In addition, the reference to section 30.2 of the Act was removed. College Counsel explained that the Notice of Hearing was amended due to legislative changes to the Act, including section 63.2 of the Act. The conduct at issue occurred in 2015 before the changes to the Act came into effect.
2. 2For the purposes of paragraphs 16 and 18, this “document” refers to the Agreed Statement of Facts and Guilty Plea.