DISCIPLINE COMMITTEE OF THE ONTARIO COLLEGE OF TEACHERS

Citation: Ontario College of Teachers v Griffin 2019 ONOCT 68

Date: 2019-07-23

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

Robert Charles Griffin, a member of the Ontario College of Teachers.

BETWEEN:

ONTARIO COLLEGE OF TEACHERS

– and –

ROBERT CHARLES GRIFFIN (REGISTRATION #154691)

PANEL: Irene Dembek, OCT, Chair Josée Landriault, OCT Tom Potter

HEARD: June 18, 2019

Jason Bennett, for Ontario College of Teachers

No one appearing for Robert Charles Griffin

Julie Maciura 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 L. M. Cameron of the Ontario Court of Justice, there is also a publication ban on any information that could identify the victim 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 June 18, 2019 at the Ontario College of Teachers (the “College”) at Toronto.

A Notice of Hearing (Exhibit 1), dated February 21, 2019 was served on Robert Charles Griffin (the “Member”), inviting him to participate in the scheduling of the hearing and specifying the allegations. The hearing was subsequently set for June 18, 2019.

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

Counsel for the College submitted an Affidavit of Tatiana Tkatch (Exhibit 2) sworn June 13, 2019, to show that the College met its service obligations to inform the Member of the allegations against him, the time and date of the hearing, as well as the penalty being sought. In this affidavit, Ms. Tkatch, a law clerk with the College, outlines the College’s various attempts at serving the Member with all required notices or documents.

College Counsel made detailed submissions about the College’s attempts to serve the Member with the Notice of Hearing and all disclosure documents. The College attempted to contact the Member in order to serve him with these documents by:

registered mail;
phone at the Member’s last known number;
email at the Member’s last known email address; and,
retaining a skip tracing service.

None of these attempts were successful.

College Counsel presented the relevant legislation with respect to service of notice or documents. Rule 2.03 of the Rules of Procedure of the Discipline Committee and of the Fitness to Practise Committee (the “Rules”) provides that, “Service of notice or documents is effective when it is made in accordance with the College’s Act or Bylaws.” Section 52 of the Act provides that service of notice or documents is sufficient if it is “(a) delivered personally; (b) sent by mail; or (c) given or served in accordance with by-laws respecting service” and that there is a rebuttable presumption that the notice or document is delivered to the person on the firth day after the day of mailing where the document or notice is sent by mail addressed to a person at the last address of the person in the records of the College. Section 9.09 of the College bylaws provides that service can be effected in a number of ways, including by mail or email to the last known address of the person being served. Moreover, section 31.01 of the College bylaws requires that members keep their contact information up-to-date with the College.

College Counsel acknowledged that it could not be presumed in this case that the Member received copies of the notice or documents sent to him, because all service attempts were returned undeliverable. However, College Counsel submitted that the College nevertheless met all of the technical requirements of the rules of service and attempted to serve the member multiple times, through various means, at his last known addresses, including the last address of the member in the records of the College. College Counsel submitted that it was in the public interest to move forward with the Member’s matter, and that the Committee therefore ought to proceed with this hearing in the Member’s absence.

Based on these submissions and the affidavit provided, the Committee was satisfied that the College had met its service obligations. In the Committee’s opinion, it would not be in the public interest to allow a member of the College to prevent a discipline hearing from occurring by either failing to update their address with the College or by failing to acknowledge receipt of a notice sent to them by the College. Section 52 of the Act is intended to prevent that from happening. 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 Robert Charles Griffin 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);

(f) he engaged in conduct unbecoming a member, contrary to Ontario Regulation 437/97, subsection 1(19).

PARTICULARS OF THESE ALLEGATIONS ARE AS FOLLOWS

Robert Charles Griffin is a member of the Ontario College of Teachers.
On March 20, 2007, the Member changed his membership status with the College to “retired”.
In February 2015, an internet child pornography investigation led the Durham Regional Police Service (the “Police”) to receive information pertaining to the Member.
On July 7, 2016, the Police executed a search warrant at the Member’s residence during which officers seized, among other electronic items, the Member’s home computer. Forensic inspection revealed that the computer and three storage devices contained 4,798 images and 118 videos that met the definition of child pornography under the Criminal Code (Canada).
On July 15, 2016, the Member was arrested and taken into custody where he remained until granted bail on August 3, 2016.
On August 9, 2016, the Member was charged with:

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

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

On June 1, 2017, the Member pleaded guilty to, and was convicted of, the possession count, while the other two charges were withdrawn.
On September 28, 2017, the Member was sentenced to a 15-month custodial sentence, less credit for pre-trial custody, received a three-year probation order, and was made subject to a number of ancillary orders.
The Member did not appeal his conviction or sentence.

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 EVIDENCE

The College entered into evidence a Brief of Court Documents - Her Majesty the Queen v. Robert Charles Griffin (Exhibit 3), which contains the following documents:

Court Documents;
Transcript – Ontario Court of Justice, HMQ v. Griffin, Arraignment and Plea; and
Transcript – Ontario Court of Justice, HMQ v. Griffin, Reasons for Sentence.

The evidence presented in Exhibit 3 confirms that on June 1, 2017, in the Ontario Court of Justice, 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 of Canada.

SUBMISSIONS ON FINDING

College Counsel submitted that the Committee ought to find that the Member engaged in professional misconduct as alleged, contrary to Ontario Regulation 437/97 at subsections 1(5), 1(15), 1(16), 1(17), 1(18) and 1(19). Rules 13.03 and 13.04 of the Rules allow the Committee to rely on court documents to make findings of professional misconduct. The court documents in this case indicate that the Member was charged with three counts relating to child pornography, but that he ultimately pleaded guilty to and was convicted of one count of possession of child pornography. College Counsel submitted that he believed that the Member did not appeal his criminal conviction and that he was in fact incarcerated. Independent Legal Counsel confirmed that, given when the conviction occurred, the time for an appeal would have expired.

According to College Counsel, possession of nearly 5,000 images or videos that meet the definition of child pornography is a clear breach of the standards of the profession, such that no expert evidence is required to prove the breach. The Member’s criminal conduct and his ensuing conviction, on their face, are obvious contraventions of each of the heads of professional misconduct alleged in the Notice of Hearing.

DECISION

Having considered the evidence, onus and standard of proof, and the submissions made by College Counsel, the Committee rendered an oral decision on June 18, 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

Factual Findings

In accordance with the law of evidence and Rule 13.03 of the Rules, 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 a criminal offence 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 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 Brief of Court Documents, the College has proven, on a balance of probabilities, that on July 7, 2016, the Police executed a search warrant at the Member’s home address during which officers seized a number of the Member’s electronic devices, including his computer, an external hard drive, and two USB storage devices. A search of these devices revealed that the Member had 4,798 images and 118 videos of child pornography. The images depicted a variety of sexual acts with children, child bestiality, underage posing, and child bondage. Almost all of the images involved females who appeared to be between the ages of seven and fourteen. Two of the images were manipulated to include the faces of the [XXX] on pornographic images. The majority of the videos depicted sex acts between adults and children, one of which was exceptionally brutal (see Exhibit 3, Tab 2, pages 4-6).

The Member was subsequently charged with three counts relating to child pornography, and he ultimately pleaded guilty to and was convicted of one count of possession of child pornography, contrary to section 163.1(4) of the Criminal Code (Canada). He received a 15-month custodial sentence, less credit for pre-trial custody, a three-year probation order, and he was made subject to a number of ancillary orders.

Legal Conclusions

The Committee finds that the Member’s conduct was a clear breach of each of the heads of professional misconduct set out in the Notice of Hearing. The Member’s conduct shattered the trust that the public places in members of the profession, and he therefore failed to maintain the standards of the profession, contrary to subsection 1(5) of Ontario Regulation 437/97. Members’ professional relationships with students, colleagues, parents, guardians and the public are based on trust, and this trust is destroyed when members engage in the type of conduct exhibited by the Member in this case.

The Committee finds that the Member contravened subsection 1(15) of Ontario Regulation 437/97 by failing to comply with section 264(1) of the Education Act. Section 264(1)(c) of the Education Act provides that it is the duty of a teacher to “inculcate by precept and example […] the highest regard for truth, justice, loyalty, love of country, humanity, benevolence, sobriety, industry, frugality, purity, temperance and all other virtues.” The Member’s conduct breached this provision, which is commonly understood to mean that teachers must act as positive role models. Members hold a unique position of trust and authority. They are responsible for the well-being and development of children. It is alarming for teachers to be in possession of child pornography, which objectifies and exploits children. It is equally disturbing that the Member manipulated some of the pornographic images to include the faces of [XXX]. The Member’s conduct in this case was entirely at odds with his obligations as a member of the profession.

The Committee finds that the Member’s conduct contravened a law which was relevant to his suitability to hold a certificate of qualification and registration, and that he therefore breached subsection 1(16) of Ontario Regulation 437/97. Possession of child pornography is an abhorrent criminal offence that exploits children. By collecting thousands of images or videos of child pornography, the Member demonstrated that it would be unsuitable for him to hold a teaching certificate, which would allow him to work closely with children.

The Committee finds that the Member’s conduct contravened a law which has caused or may cause a student who is under his professional supervision to be put at or to remain at risk, contrary to subsection 1(17) of Ontario Regulation 437/97. By possessing a vast collection of child pornography, which depicted vulnerable children in brutally compromising positions, the Member demonstrated that his membership in the profession puts students at risk. The Member’s interest in child pornography demonstrates that he cannot be trusted to ensure the well-being of students.

The Committee finds that the Member’s possession of child pornography is an act that, having regard to all the circumstances, would reasonably be regarded by members as disgraceful, dishonourable or unprofessional. The Member therefore breached subsection 1(18) of Ontario Regulation 437/97. In addition to supporting an industry based on the exploitation of vulnerable children, the Member also manipulated images to include [XXX] faces on pornographic images. It is self-evident that this conduct is disgraceful, dishonourable and unprofessional.

Finally, the Committee finds that the Member engaged in conduct unbecoming a member, contrary to subsection 1(19) of Ontario Regulation 437/97. Members of the teaching profession who possess child pornography severely compromise the reputation of the profession, and undermine the trust and confidence that the public places in members of the profession.

SUBMISSIONS ON PENALTY

Counsel for the College submitted that revocation of the Member’s certificate of qualification and registration is the only appropriate penalty in this case. Because of the timing of the events at issue in this case, College Counsel submitted that the mandatory revocation provisions set out at section 30.2 of the Act, which only came into effect on December 5, 2016, were not applicable.

Although the Committee was not required by the statute to revoke the Member’s certificate, College Counsel nevertheless urged the Committee to do so given the very serious nature of the Member’s misconduct. Moreover, College Counsel submitted that the penalty sought here by the College fell within a range of acceptable outcomes, based on Ontario College of Teachers v. Adams, 2013 ONOCT 2 and Ontario College of Teachers v. Teeple, 2014 ONOCT 102. In both of these cases, members had their certificates revoked after being convicted of possession of child pornography. Similar to the Member’s case, the events at issue in these two prior decisions occurred before the December 2016 amendments to the Act came into effect.

PENALTY DECISION

The Committee rendered an oral decision on June 18, 2019, in which it made the following order as to penalty:

The Registrar of the Ontario College of Teachers is directed to immediately revoke the Certificate of Qualification and Registration of the Member.

REASONS FOR PENALTY

The Committee finds that revocation of the Member’s Certificate of Qualification and Registration is the only appropriate penalty in this case. The Member’s criminal conduct was completely at odds with his responsibilities as a member of the teaching profession. It is unacceptable for members of the profession, who hold a unique position of trust and authority, to be in possession of child pornography. Possession of child pornography perpetuates a market which thrives on the abuse and objectification of children. The Member’s disregard for the children whose images he possessed is appalling; particularly for an individual whose job it was to ensure the well-being of students.

Moreover, it is disturbing that the Member manipulated some of the pornographic images in his collection to include the faces of [XXX]. While the Member has suffered far-reaching consequences for this decision, including the [XXX] (see Exhibit 3, Tab 3, page 5), the destructive impact that he has had on [XXX] and in his community cannot be minimized. Through his criminal conduct, the Member has severely undermined the reputation of the teaching profession and the trust that the public places in members of the profession. Accordingly, the Member is no longer entitled to be a member of the teaching profession in Ontario.

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

The College did not request costs and therefore costs were not ordered in this case.

Date: July 23, 2019

Irene Dembek, OCT

Chair, Discipline Panel

Josée Landriault, OCT

Member, Discipline Panel

Tom Potter