Ontario College of Teachers v. Yalkezian, 2024 ONOCT 15

DISCIPLINE COMMITTEE OF THE ONTARIO COLLEGE OF TEACHERS

Citation: Ontario College of Teachers v Yalkezian 2024 ONOCT 15

Date: 2024-05-03

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 Simon Orton Yalkezian, a member of the Ontario College of Teachers.

BETWEEN:

ONTARIO COLLEGE OF TEACHERS

– and –

SIMON ORTON YALKEZIAN (REGISTRATION #655084)

PANEL: Adam Dharsee, OCT, Chair Susan Arbour, OCT Victoria Romero

HEARD: April 25, 2024

COUNSEL: Dominic Bell, for the Ontario College of Teachers No one appearing for Simon Orton Yalkezian 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.

1This proceeding was heard electronically before a panel of the Discipline Committee (the “Panel”) of the Ontario College of Teachers (the “College”) on April 25, 2024, in accordance with rule 8.01 of the Rules of Procedure of the Discipline Committee and of the Fitness to Practise Committee.

2Simon Orton Yalkezian (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.

B. THE ALLEGATIONS

4The allegations against the Member in the Notice of Hearing dated April 4, 2024 (Exhibit 1) are as follows:

IT IS ALLEGED that the Member 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 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);

(c) 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);

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

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

5The particulars of the allegations in the Notice of Hearing had originally stated that the Member plead guilty to, and was convicted of accessing child pornography. The particulars of the allegations were subsequently amended to reflect that the Member was convicted of possessing child pornography, in the Notice of Hearing dated April 4, 2024 (Exhibit 1). College Counsel presented the Affidavit of Service of Kelly Reeves (Exhibit 2), in which Ms. Reeves, the College’s Professional Conduct Coordinator, affirmed that she served the amended Notice of Hearing (Exhibit 1) and updated Agreed Statement of Facts and Guilty Plea (Exhibit 3) on the Member via email. The Panel is satisfied that Member’s subsequent reply to Ms. Reeves’ email confirmed his receipt.

C. AGREED STATEMENT OF FACTS

6College Counsel presented the Panel with the parties’ Agreed Statement of Facts and Guilty Plea (Exhibit 3), which provides the following:

1. Simon Orton Yalkezian is a member of the Ontario College of Teachers. As of October 2, 2020, his membership status with the College has been “Inactive / Non-Practising.” Attached hereto 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 self-employed as a tutor with [XXX] in Cobourg, Ontario.

3. On May 7, 2020, the Member was charged with seven child pornography-related charges under the Criminal Code of Canada (the “Criminal Code”), specifically:

(a) between July 6, 2018 and October 18, 2019, in the Town of Cobourg, was in possession of child pornography, contrary to section 163.1(4) of the Criminal Code;

(b) between July 6, 2018 and July 14, 2018, in the Town of Cobourg, using the email address aaron.smith.egg@gmail.com, made available child pornography, contrary to section 163.1(3) of the Criminal Code;

(c) between October 6, 2018 and July 17, 2019, in the Town of Cobourg, using the email address wallace.andrew071@gmail.com, made available child pornography, contrary to section 163.1(3) of the Criminal Code;

(d) between May 20, 2019 and July 15, 2019, in the Town of Cobourg, using the email address tutorwithsimon@gmail.com, made available child pornography, contrary to section 163.1(3) of the Criminal Code;

(e) between August 8, 2019 and September 14, 2019, in the Town of Cobourg, using the email address nothing61822816@gmail.com, made available child pornography, contrary to section 163.1(3) of the Criminal Code;

(f) between September 12, 2019 and October 18, 2019, in the Town of Cobourg, using the email address john.smith.sonny1123@gmail.com, made available child pornography, contrary to section 163.1(3) of the Criminal Code;

(g) between July 6, 2018 and October 18, 2019, in the Town of Cobourg, accessed child pornography, contrary to section 163.1(4.1) of the Criminal Code.

4. On May 19, 2021, the Member pled guilty to, and was convicted of, one count of possessing child pornography under section 163.1(4) of the Criminal Code:

between July 6, 2018 and October 18, 2019, in the Town of Cobourg, was in possession of child pornography, contrary to section 163.1(4) of the Criminal Code.

5. The remaining charges were withdrawn at the request of the Crown.

6. On May 19, 2021, the Member was sentenced to a 12-month conditional sentence for possessing child pornography, followed by 2 years’ probation. The Member was also made subject to several ancillary orders.

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

8. Attached hereto and marked as Appendix “B” is a certified copy of the Court Information sworn on May 7, 2020, including the appearances/adjournments and disposition in the criminal proceeding.

9. Attached hereto and marked as Appendix “C” is a certified copy of the transcript of the Proceedings at Guilty Plea and Sentencing before the Honourable Justice M. Moorcroft of the Ontario Court of Justice, dated May 19, 2021.

10. Attached hereto and marked as Appendix “D” is a certified copy of the Prohibition Order, dated July 4, 2023.

GUILTY PLEA

11. By this document, the Member admits the truth of the facts and appendices referred to in paragraphs 1-10 above (the “Admitted Facts”).

12. The Member hereby acknowledges that the conduct set out at paragraphs 3-6 of the Admitted Facts constitutes 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(16), 1(18) and 1(19). The Member also acknowledges that that he engaged in a prohibited act involving child pornography as defined in section 1 of the Ontario College of Teachers Act, 1996.

13. 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 having had the opportunity to obtain the advice of legal counsel.

14. In light of the Admitted Facts and circumstances and the plea of guilt, the Ontario College of Teachers 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 April 25, 2024, finding that the Member engaged in acts of professional misconduct as alleged, contrary to Ontario Regulation 437/97, subsections 1(5), 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.

E. REASONS FOR DECISION

8The Member admitted the truth of the facts and exhibits referred to in paragraphs 1 to 10 of the Agreed Statement of Facts and Guilty Plea and plead guilty to the allegations of professional misconduct against him. He acknowledged and the Panel accepts that paragraphs 3 to 6 of the Admitted Facts constitute professional misconduct under the heads of misconduct set out above. The Admitted Facts and the exhibits to the Agreed Statement of Facts and Guilty Plea demonstrate that the Member possessed child pornography, which promotes the abuse and exploitation of children.

9The Panel finds that the Member failed to maintain the standards of the profession, contrary to Ontario Regulation 437/97, subsection 1(5). College Counsel submitted and the Panel accepts that misconduct of this nature is so notorious and offside of what is acceptable that expert evidence on the standards of the profession is not required to prove the Member’s breach of the standards. It is self evident that possession of images containing child pornography – which victimize young children both during the creation of the images and during their dissemination – is contrary to the standards of the profession, which seek to protect and nurture children and youth. As such, the Panel finds that the Member has failed to maintain the standards of the profession.¹

10The Panel finds that the Member contravened a law, the contravention of which is relevant to his suitability to hold a certificate of qualification and registration, contrary to Ontario Regulation 437/97, subsection 1(16). The Member plead guilty to and was convicted of one count of possessing child pornography contrary to section 163.1(4) of the Criminal Code. His criminal conviction is self-evidently relevant to the teaching profession, as child pornography targets and exploits students that teachers are tasked to protect. The Panel further finds that, by possessing images of children that constitute child pornography, the Member engaged in a prohibited act involving child pornography as defined in section 1 of the Act.

11The Panel finds 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). The Member’s possession of child pornography is the antithesis of what is expected of members of the teaching profession. Child pornography inherently exploits children and perpetuates a cycle of their abuse. By possessing child pornography, the Member acted in a reprehensible manner that demonstrates his significant moral and professional failings.

12The Panel finds that the Member engaged in conduct unbecoming a member, contrary to Ontario Regulation 437/97, subsection 1(19). The Member’s conduct clearly undermined the reputation of the teaching profession and violated the trust that parents, students and the public places in teachers.

F. PENALTY DECISION

13The parties entered into a Joint Submission on Penalty (Exhibit 4), which was presented to the Panel. In an oral decision rendered on April 25, 2024, the Panel accepted the Joint Submission on Penalty and made the following order:

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; and

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

G. REASONS FOR PENALTY DECISION

14The Member’s professional 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 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 orders and notes that it has no discretion in this regard. The Panel finds it appropriate to order a written reprimand as jointly requested by the parties.

15The Panel recognizes that it may also order costs or a fine in accordance with subsection 30(5) of the Act but notes that the parties are jointly asking it to confine its order to the mandatory ones. The Panel finds it reasonable not to make these additional orders in light of the Member’s guilty plea and joint submission on penalty.

16The Panel denounces the Member’s misconduct in the strongest terms.

Footnotes

1. 1See Novick v. Ontario College of Teachers, 2016 ONSC 508 at paragraph 71.