DISCIPLINE COMMITTEE OF THE ONTARIO COLLEGE OF TEACHERS

Citation: Ontario College of Teachers v Thompson 2022 ONOCT 91

Date: 2022-10-07

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 James Robert Thompson, a member of the Ontario College of Teachers.

BETWEEN:

ONTARIO COLLEGE OF TEACHERS

– and –

JAMES ROBERT THOMPSON (REGISTRATION #257645)

PANEL: Wanda Percival, OCT, Chair Andrew Glenny Terrence Singh, OCT

HEARD: September 29, 2022

Yufei (Fiona) Wang, for the Ontario College of Teachers No one appearing for James Robert Thompson Erica Richler, 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 S. Latimer 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 proceeding was heard electronically before a panel of the Discipline Committee (the “Panel”) of the Ontario College of Teachers (the “College”) on September 29, 2022, in accordance with rule 8.01 of the Rules of Procedure of the Discipline Committee and of the Fitness to Practise Committee.

2James Robert Thompson (the “Member”) did not attend the hearing and did not have legal representation.

3Counsel for the College submitted an Affidavit of Hanna Yakymova (Exhibit 3) sworn on September 16, 2022, to show that the College has 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 by the College and possible costs. In this affidavit, Ms. Yakymova, a law clerk with the College, outlines the College’s extensive efforts to serve the Member with the Notice of Hearing and all required disclosure materials.

4On July 14, 2022, the Member indicated that he would not participate in the process, to proceed with the matter in his absence, and to inform him when a finding of guilt has been made in the College disciplinary proceedings (Exhibit 3 at Exhibit G). The Member has not communicated with the College since then. On August 31, 2022, the College emailed the Member to inform him that, at a set date hearing held on August 30, 2022, the present matter was scheduled to be heard electronically on September 29, 2022, at 9.00 a.m.

5Rule 2.03 of 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”. Section 8.09 of the College Bylaws provides that service can be effected in a number of ways, including by courier to the last known address, or by electronic means to the last known email address, of the person being served. Sections 8.10-8.12 of the College Bylaws provide that there is a rebuttable presumption that the documents have been delivered to the person after a specific number of days depending on the method of service.

6In this case, although the materials sent by the College were not received by the Member (except for the Notice of Hearing which was downloaded by the Member on July 14, 2022), he was deemed to have been served at his last known residential address and at his last known email address. The College has shown that it met, and indeed exceeded, its service requirements including by sending materials by courier and email to the Member. Given the Member’s indication that he would not participate in the disciplinary process, the Panel proceeded to hear this matter in his absence.

A. PUBLICATION ban

7The 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.

8The Panel also received the Certified transcript of the Proceedings at Trial from the Member’s criminal proceeding before Justice S. Latimer dated November 2, 2021 (Exhibit 4 at Tab 2). 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

9The allegations against the Member in the Notice of Hearing dated June 23, 2022 (Exhibit 1) are as follows:

IT IS ALLEGED that James Robert Thompson is guilty of professional misconduct as defined in 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);

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

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

PARTICULARS OF THESE ALLEGATIONS ARE AS FOLLOWS

1. James Robert Thompson is a member of the Ontario College of Teachers.

2. The Member obtained an Ontario Teachers’ Certificate on June 28, 1985 and a Certificate of Qualification and Registration on May 20, 1997.

3. On May 28, 2021, the Member’s membership status with the College was changed to “Inactive/Non-Practicing."

4. At all material times, the Member was the owner and the principal of [XXX] School (the “School”) in Oakville, Ontario.

5. In October 2020, the Halton Regional Police Service charged the Member with:

(a) on or about the 2^nd day of October in the year 2020 at the Town of Oakville in the said region, did have in his possession child pornography to wit: images, contrary to section 163.1(4) of the Criminal Code;

(b) on or about 2^nd day of October in the year 2020 at the Town of Oakville in the said Region, did access child pornography, contrary to section 163.1(4.1) of the Criminal Code; and

(c) on or about the 4^th day of October in the year 2020 at the Town of Oakville in the said region, did have in his possession child pornography to wit: images, contrary to section 163.1(4) of the Criminal Code.

6. On November 2, 2021, the Member pleaded guilty to one count of accessing child pornography contrary to section 163.1(4.1) of the Criminal Code.

7. On November 2, 2021, the Member was sentenced to an eight-month conditional sentence. The court also imposed the following condition which is relevant to the Member’s eligibility to teach for a period of ten years: prohibited from seeking, obtaining or continuing any employment, whether or not the employment is renumerated, or becoming or being a volunteer in a capacity that involves being in a position of trust or authority towards persons under the age of 16 years. The Member was made the subject of a number of ancillary orders.

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

C. THE MEMBER’S PLEA

10As the Member was not present, the Panel proceeded on the basis that the Member denied the allegations set out in the Notice of Hearing.

D. THE EVIDENCE

11College Counsel entered into evidence the Registered Member Information for James Robert Thompson (Exhibit 2), which indicates that the Member was a member of the College at the time of the alleged events. The College also entered into evidence a Brief of Court Documents - Her Majesty the Queen v. James Robert Thompson (Exhibit 4), which contains the following documents:

1. Certified copy of Court Information, appearances, and disposition in the criminal proceeding;

2. Certified transcript of the Proceedings at Trial before the Honourable Justice S. Latimer at Milton, Ontario dated November 2, 2021;

3. Certified copy of Adult Conditional Sentence Order dated November 2, 2021;

4. Certified copy of Prohibition Order dated November 2, 2021;

5. Certified copy of Order of Forfeiture after Conviction dated November 2, 2021; and

6. Certified copy of Fine Order /Victim Surcharge dated November 2, 2021.

12The evidence presented in Exhibit 4 establishes that on November 2, 2021, in the Ontario Court of Justice, the Member was convicted of one count of accessing child pornography, contrary to section 163.1(4.1) of the Criminal Code.

E. SUBMISSIONS ON FINDING

13College Counsel described the incidents which led to the Member’s criminal charges and submitted that, during his prior criminal proceedings, the Member pled guilty and was convicted for having accessed child pornography, contrary to section 163.1(4.1) of the Criminal Code.

14According to College Counsel, the Member’s conduct, as detailed in the record of the criminal proceedings (see Exhibit 4) and the resultant criminal conviction, provided a sufficient basis to justify a finding of professional misconduct under all of the heads of misconduct alleged in the Notice of Hearing. The Member had legal representation during his criminal proceedings.

F. DECISION ON FINDING

15Having considered the evidence, onus and standard of proof, and the submissions made by College Counsel, the Panel rendered an oral decision on September 29, 2022, 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). The Member also engaged in a prohibited act involving child pornography as defined in section 1 of the Act.

G. REASONS FOR DECISION

(1) Factual Findings

16In accordance with the law of evidence and Rule 13.03 of the Rules of Procedure of the Discipline Committee and of the Fitness to Practise Committee (the “Rules”), the Panel accepts the certified copy of the Court Information, appearances, and disposition in the criminal proceeding as proof, in this case, that the Member committed the criminal offence outlined therein. The Member was convicted of a criminal offence before a Canadian court, no appeal has been taken, and the time for an appeal has expired.

17In addition, pursuant to Rule 13.04 of the Rules, the Panel admits as ancillary to the certified copy of the Court Information, appearances and disposition, the findings of fact contained in the Certified transcript of the Proceedings at Trial before the Ontario Court of Justice involving the Member. The Panel admits the same document for the purpose of explaining the finding of guilt as well.

18Based on the evidence contained within the Brief of Court Documents, the College has proven, on a balance of probabilities, that, on October 4, 2020, the Police found 33 images of children 12 years of age and younger that met the definition of child pornography on the Member’s desktop computer (see Exhibit 4, Tab 2, pages 22 and 46). The Member pleaded guilty to, and was convicted of, one count of accessing child pornography, contrary to section 163.1(4.1) of the Criminal Code.

19The Member received an eight-month conditional sentence. The Court also imposed the following condition which is relevant to the Member’s eligibility to teach for a period of ten years: prohibited from seeking, obtaining, or continuing any employment, whether or not the employment is remunerated, or becoming or being a volunteer in a capacity that involves being in a position of trust or authority towards persons under the age of 16 years. The Member was also made subject to a number of ancillary orders.

(2) Legal Conclusions

20The Panel finds that the Member’s conduct was a clear breach of each of the following heads of professional misconduct set out in the Notice of Hearing: subsections 1(5), 1(15), 1(16), 1(18) and 1(19) of Ontario Regulation 437/97. The Member also engaged in a prohibited act involving child pornography as defined in section 1 of the Act.

21The Member failed to maintain the standards of the profession, contrary to subsection 1(5) of Ontario Regulation 437/97. The Panel finds that the Member’s conduct clearly fell below the standards of the profession. During his prior criminal proceedings, the Member pled guilty and was convicted for having accessed child pornography. College Counsel submitted and the Panel accepts that misconduct of the nature committed by the Member is so notorious and offside of what is acceptable that expert evidence is not required to prove that the standards were breached.¹

22The 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. Section 264(1)(c) is commonly understood to mean that members of the teaching profession must exemplify moral virtues and serve as positive role models. By accessing child pornography as described above, which is abhorrent and morally repugnant conduct, the Member failed to model appropriate behaviour as required by his duties as a member of the teaching profession.

23The Panel finds that the Member’s criminal conviction for having breached section 163.1(4.1) of the Criminal Code, demonstrates that he contravened a law which is relevant to his suitability to hold a Certificate of Qualification and Registration, contrary to subsection 1(16) of Ontario Regulation 437/97. Child pornography objectifies, exploits and harms children. The Member’s criminal conviction for accessing images of children and infants engaged in sexual activity with adults, demonstrates that it would be unsuitable for the Member to hold a teaching certificate, which would allow him to work closely with children. This finding is further supported by the fact that the Ontario Court of Justice imposed a condition prohibiting the Member, for a period of 10 years, from seeking, obtaining, or continuing any employment, whether or not the employment is remunerated, or becoming or being a volunteer in a capacity that involves being in a position of trust or authority towards persons under the age of 16 years.

24The Member committed acts that having regard to all the circumstances would reasonably be regarded by members as disgraceful, dishonourable or unprofessional, contrary to subsection 1(18) of Ontario Regulation 437/97. It is unacceptable for school administrators to access child pornography. They hold a trusted leadership position in the school community and are responsible for the safety of children. In addition to supporting an industry based on the exploitation of vulnerable children, such conduct shows moral turpitude and depravity as well as a serious lack of judgment by the Member. As such, the Member’s behaviour can be characterized as disgraceful, dishonourable and unprofessional.

25The Member engaged in conduct unbecoming a member, contrary to subsection 1(19) of Ontario Regulation 437/97. The Member was not only an administrator but also the owner of a school. Parents entrusted him with their children’s safety. By committing such an egregious offence, the Member breached the trust which parents and the public placed in him. Furthermore, by engaging in such a serious criminal offence, the Member also tarnished the reputation of the teaching profession as a whole.

26The Panel finds that the Member engaged in a prohibited act involving child pornography as defined in section 1 of the Act. A “prohibited act involving child pornography” is defined as “any act prohibited under section 163.1 of the Criminal Code (Canada)”. The Member pled guilty to and was convicted of one count of accessing child pornography under section 163.1(4.1) of the Criminal Code.

H. SUBMISSIONS ON PENALTY

27Counsel for the College submitted that, having made a finding that the Member engaged in a prohibited act involving child pornography, the Panel was required to revoke the Member’s certificate of qualification and registration, and reprimand the Member pursuant to section 30.2 of the Act. The College did not seek costs or a fine against the Member given the circumstances of this case.

I. PENALTY DECISION

28On September 29, 2022, the Panel made the following order as to penalty:

1. The Member is directed to receive a written reprimand, and the fact of the reprimand is to be recorded on the Register of the Ontario College of Teachers.

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

J. REASONS FOR PENALTY

29The 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. The Panel notes that it has no discretion in this regard. In relation to the form of the reprimand, the Panel accepts the College’s submission that a written reprimand is appropriate in the circumstances.

30The Panel recognizes that, pursuant to subsection 30.2(1) of the Act, it may also order costs or a fine under subsection 30(5) of the Act. However, it is reasonable not to make these additional orders given that the College did not seek costs or a fine against the Member.

31The Panel denounces the Member’s misconduct in the strongest terms.

Footnotes

1. 1Novick v. Ontario College of Teachers, 2016 ONSC 508 established that expert evidence is generally required to prove a breach of the standards of the profession, unless the conduct is so notorious and so manifestly contrary to the standards that expert evidence is not required.