Ontario College of Teachers v. Ly, 2020 ONOCT 141

DISCIPLINE COMMITTEE OF THE ONTARIO COLLEGE OF TEACHERS

Ontario College of Teachers v Ly 2020 ONOCT 141

Date: 2020-01-22

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 Victor Ly, a member of the Ontario College of Teachers.

BETWEEN:

ONTARIO COLLEGE OF TEACHERS

– and –

VICTOR LY (REGISTRATION #670351)

PANEL: Nicola Powadiuk, OCT, Chair Shanlee Linton, OCT Marlène Marwah

HEARD: January 17, 2020

Jason Bennett, for the Ontario College of Teachers No one appearing for Victor Ly Renée Kopp, 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 W. Rabley 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.

1This matter was heard before a panel of the Discipline Committee (the “Panel”) on January 17, 2020 at the Ontario College of Teachers (the “College”).

2Victor Ly (the “Member”) did not attend the hearing and did not have legal representation. The Panel was advised at the outset of the hearing that the parties had entered into an agreement with respect to the hearing.

A. PUBLICATION BAN

3The Panel ordered a publication ban pursuant to subsection 32.1(3) of the Ontario College of Teachers Act, 1996 (the “Act”), which makes such an order mandatory. Accordingly, 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.

4Additionally, the Panel received a certified copy of the Court Information from the Member’s criminal proceeding before Justice W. Rabley, dated June 21, 2018 (Exhibit 4 at Tab C). In these proceedings before the Ontario Court of Justice, an order restricting publication was made pursuant to section 486.4 of the Criminal Code of Canada. The Panel is required to uphold this publication ban. Accordingly, any information that could identify the victim or a witness involved in this matter shall not be published in any document or broadcast or transmitted in any way.

B. THE ALLEGATIONS

5The allegations against the Member in the Notice of Hearing dated July 24, 2019 (Exhibit 1) are as follows:

IT IS ALLEGED that Victor Ly is guilty of professional misconduct as defined in the Act in that he:

(a) failed to maintain the standards of the profession, contrary to Ontario Regulation 437/97, subsection 1(5);

(b) 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) 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) 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) 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) engaged in conduct unbecoming a member, contrary to Ontario Regulation 437/97, subsection 1(19);

(g) engaged in a prohibited act involving child pornography as defined in section 1 of the Act.

C. AGREED STATEMENT OF FACTS

6College Counsel presented the Panel with the parties’ Agreed Statement of Facts and Guilty Plea (Exhibit 2), which provides the following:

1. Victor Ly is a member of the Ontario College of Teachers (the “College”). Attached hereto and marked as Appendix “A” is a copy of the Member’s Registered Member Information with the College.

2. The Member obtained a Bachelor of Education degree from Nipissing University on May 22, 2015 and received a Certificate of Qualification and Registration from the College on July 7, 2015.

3. Between September 2016 and November 2017, the Member was employed as a teacher at a [XXX] school in Waterloo Region.

4. Between December 2017 and February 2018, the Member was employed by the Halton District School Board (the “Board”) as an occasional elementary school teacher. On or about February 15, 2018, the Board assigned the Member to home duties and removed him from the occasional teacher list upon learning of the criminal charges below.

5. On February 14, 2018, Waterloo Regional Police Service (the “Police”) executed a search warrant at the Member’s residence during which officers seized three electronic devices owned by the Member.

6. On February 15, 2018, the Police charged the Member with:

(a) three counts of luring a person believed to be under the age of 18 for the purpose of facilitating the commission of an offence under section 163.1(2) of the Criminal Code (Canada) (making child pornography), contrary to section 172.1(1)(a) of the Criminal Code (Canada);

(b) three counts of possession of child pornography, contrary to section 163.1(4) of the Criminal Code (Canada);

(c) two counts of transmitting sexually explicit material to a person believed to be under the age of 18 for the purpose of facilitating the commission of an offence under section 163.1(2) of the Criminal Code (Canada) (making child pornography), contrary to section 171.1(1)(a) of the Criminal Code (Canada); and

(d) one count of extortion, without reasonable justification or excuse and with intent to obtain nude images of a person under the age of 18, by attempting to induce that person by threats to distribute intimate images of that person, contrary to section 346.(1.1)(b) of the Criminal Code (Canada).

Attached hereto and marked as Appendix “B” is a copy of the Information of Peace Officer M. Simons Kelly of the Waterloo Regional Police Service sworn February 15, 2018.

7. The February 15, 2018 charges were in relation to conduct on the part of the Member that took place between November 4, 2016 and October 31, 2017.

8. By June 2018, the Police had laid 41 additional charges against the Member after several additional incidents involving victims under 18 years of age were identified.

9. In total, the Member was charged with 50 counts of criminal offences related to online and/or electronic communications he had with females between the ages of [XXX]-years-old and [XXX]-years-old between November 4, 2016 and February 14, 2018:

(a) 17 counts of luring a child for the purpose of making child pornography, contrary to section 172.1(1)(a) of the Criminal Code (Canada);

(b) 12 counts of possession of child pornography, contrary to section 163.1(4) of the Criminal Code (Canada);

(c) six counts of distribution of child pornography, contrary to section 163.1(3) of the Criminal Code (Canada);

(d) six counts of making child pornography, contrary to section 163.1(2) of the Criminal Code (Canada);

(e) four counts of invitation to sexual touching to a person under 16 years of age, contrary to section 152 of the Criminal Code (Canada);

(f) three counts of extortion to obtain intimate images of a child, contrary to section 346.(1.1)(b) of the Criminal Code (Canada); and

(g) two counts of transmitting sexually explicit material to a child for the purpose of making child pornography, contrary to section 171.1(1)(a) of the Criminal Code (Canada).

Attached hereto and marked as Appendix “C” is a certified copy of the Replacement Information of Peace Officer B. Reeve of the Waterloo Regional Police Service sworn June 21, 2018.

10. On September 12, 2018, the Member signed an Agreement and Undertaking with the College not to seek or engage in any employment for which a Certificate of Qualification and Registration is required until the College disposes of the Registrar’s complaint in this matter. Attached hereto and marked as Appendix “D” is a copy of the Agreement and Undertaking signed by the Member on September 12, 2018.

11. On November 23, 2018, the Member pleaded guilty to 19 of the 50 charges:

(a) six counts of making child pornography;

(b) four counts of invitation to sexual touching;

(c) three counts of extortion;

(d) two counts of transmitting a sexually explicit image for the purpose of making child pornography;

(e) two counts of luring a child for the purpose of making child pornography;

(f) one count of possessing child pornography; and

(g) one count of distributing child pornography.

Attached hereto and marked as Appendix “E” is a certified copy of the Proceedings at Guilty Plea before the Honourable Justice W. G. Rabley at Kitchener, Ontario dated November 23, 2018.

12. The Member’s convictions for making, possessing and distributing child pornography each constitute a “prohibited act involving child pornography” as defined in section 1 of the Ontario College of Teachers Act, 1996.

13. On March 1, 2019, the Member was sentenced to a five-year custodial sentence and was made subject to a number of ancillary orders. Attached hereto and marked as Appendix “F” is a certified copy of the Reasons on Sentence before the Honourable Justice W. G. Rabley, at St. Catharines, Ontario.

14. In his Reasons for Sentence, Justice Rabley concluded that “Victor Ly is charged with a number of offences that relate to his electronic communications with a number of young girls between the ages of [XXX] and [XXX] years. Through various means, Mr. Ly was able to trick, cajole and threaten these victims into exposing themselves online through photographs and videos…There were 16 known victims in this case at the time of a plea. The vast majority of them were between the ages of [XXX] and [XXX] years. They were spread throughout North America and although the majority of them were from the Region of Waterloo, there were victims in the Halton Region, Ottawa, British Columbia and Pennsylvania. Some of these girls were former students of Mr. Ly…In each of these cases, [Mr. Ly] made contact with the victims through the use of social media.”

15. In his Reasons for Sentence, Justice Rabley further noted that “At the time of sentencing, the Crown introduced facts supporting allegations that another 13 victims had been contacted [by Mr. Ly]. The majority of these were from Nova Scotia, but others were from Ontario and Madison, Wisconsin. The police were also able to ascertain from the devices that they seized from Mr. Ly, that evidence of contact with over 120 victims including others that were in the United Kingdom, was also present.”

16. The Member did not appeal his conviction or sentence.

17. The Member acknowledges that his conduct fell below the standards of the teaching profession. Attached hereto and marked as Appendix “G” is a copy of the College’s Ethical Standards for the Teaching Profession and the Standards of Practice for the Teaching Profession.

GUILTY PLEA

18. By this document, the Member admits the truth of the facts and appendices referred to in paragraphs 1-17 above (the “Admitted Facts”).

19. The Member hereby acknowledges that paragraphs 6-8, 10-14 and 17 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(17), 1(18) and 1(19).

20. The Member also pleads guilty to the allegation that he engaged in prohibited acts involving child pornography as defined in section 1 of the Ontario College of Teachers Act, 1996.

21. 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 or with the opportunity to have sought the advice of legal counsel.

22. 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.

D. DECISION

7Having considered the Agreed Statement of Facts and Guilty Plea and the submissions of College Counsel, the Panel rendered an oral decision on January 17, 2020 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). The Member also engaged in prohibited acts involving child pornography as defined in section 1 of the Act.

E. REASONS FOR DECISION

8The Member admitted the truth of the facts and exhibits referred to in paragraphs 1 to 17 of the Agreed Statement of Facts and Guilty Plea and admitted the allegations of professional misconduct against him. He acknowledged and the Panel accepts that the Admitted Facts constitute professional misconduct under the headings of misconduct set out above. The Admitted Facts demonstrate that the Member engaged in the egregious acts of possessing, making and distributing child pornography. He was charged with 50 counts of criminal offences related to online and/or electronic communications he had with females between the ages of [XXX] and [XXX] years old. At the time of a plea, there were 16 known victims. The majority of them were between the ages of [XXX] and [XXX] years old. Some of them were former students of the Member. On November 23, 2018, the Member pleaded guilty to 19 out of 50 charges that were laid against him, which included making child pornography, invitation to sexual touching, extortion, transmitting a sexually explicit image for the purpose of making child pornography, luring a child for the purpose of making child pornography, possessing child pornography and distributing child pornography. The Member was convicted for making, possessing and distributing child pornography. On March 1, 2019 he was sentenced to a 5-year custodial sentence and was made subject to a number of ancillary orders. The Member did not appeal his conviction or sentence.

9The Member’s criminal conviction for making, possessing and distributing child pornography clearly demonstrates that he engaged in a prohibited act involving child pornography as defined in section 1 of the Act. It also demonstrates that the Member contravened a law relevant to the Member’s suitability to hold a certificate of qualification and registration, and which has caused or may cause a student who is under the Member’s professional supervision to be put at or remain at risk.

10The Panel also finds that making, possessing and distributing child pornography is a clear breach of the standards of the profession. Furthermore, the Member contravened subsection 1(15) of Ontario Regulation 437/97 by failing to comply with section 264(1) of the Education Act, which sets out the duties of a teacher. 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 make, possess and distribute child pornography, which objectifies and exploits children. The Member’s conduct in this case was entirely at odds with his obligations as a member of the profession. Furthermore, the Member’s misconduct is clearly disgraceful, dishonourable, unprofessional and is unbecoming of a member. The public’s trust in the teaching profession is eroded when members are convicted of child pornography offences.

F. PENALTY DECISION

11The parties agreed to a Joint Submission on Penalty (Exhibit 3), which was presented to the Panel. In an oral decision rendered on January 17, 2020 the Panel accepted the Joint Submission on Penalty and made the following order:

1. The Member is directed to receive a reprimand, pursuant to section 30.2(1)(a) of the Act, which shall be in writing; and

2. The Registrar of the Ontario College of Teachers is directed to immediately revoke the Certificate of Qualification and Registration of the Member, pursuant to section 30.2(1)(c) of the Act.

G. REASONS FOR PENALTY DECISION

12The Member’s professional misconduct consisted of 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 Panel must make an order: (1) requiring that the Member be reprimanded by the Panel; and (2) directing the Registrar to revoke the Member’s certificate of qualification and registration. The Panel makes both of these orders and notes that it has no discretion in this regard. In relation to the form of the reprimand, the Panel orders that it shall be delivered in writing. The Panel recognizes that it may also order costs or a fine in accordance with subsection 30(5) of the Act. The Panel, however, finds it reasonable to limit the penalty in this case to the statutory minimum in light of the Member’s guilty plea and joint submission on penalty.

13The Panel denounces the Member’s misconduct in the strongest terms.

Date: January 22, 2020

Nicola Powadiuk, OCT Chair, Discipline Panel

Shanlee Linton, OCT Member, Discipline Panel

Marlène Marwah Member, Discipline Panel