DISCIPLINE COMMITTEE OF THE ONTARIO COLLEGE OF TEACHERS
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 Damir Ivankovic, a member of the Ontario College of Teachers.
BETWEEN:
ONTARIO COLLEGE OF TEACHERS
– and –
DAMIR IVANKOVIC (REGISTRATION #185442)
PANEL: Lois Figg, Chair Scott Barker, OCT Terrence Singh, OCT
HEARD: July 14, 2023
COUNSEL: Yufei (Fiona) Wang, for the Ontario College of Teachers Michelle Sun, for Damir Ivankovic Ahmad Mozaffari, 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 of the Peace D. D’Ignazio 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 July 14, 2023, in accordance with rule 8.01 of the Rules of Procedure of the Discipline Committee and of the Fitness to Practise Committee.
2Damir Ivankovic (the “Member”) did not attend the hearing but had legal representation. He attended immediately after the hearing to receive his oral reprimand. 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.
4The Panel also received a certified copy of Court Information #20-62 (Exhibit 2 at Tab B). As part of the Member’s prior criminal proceedings before the Ontario Court of Justice, an order restricting publication was made by Justice of the Peace D. D’Ignazio 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 February 6, 2023 (Exhibit 1) are as follows:
IT IS ALLEGED that Damir Ivankovic 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 abused a student or students, verbally, contrary to Ontario Regulation 437/97, subsection 1(7);
(c) he abused a student or students physically, contrary to Ontario Regulation 437/97, subsection 1(7.1);
(d) he abused a student or students psychologically or emotionally, contrary to Ontario Regulation 437/97, subsection 1(7.2);
(e) 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);
(f) 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);
(g) 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
(h) he engaged in conduct unbecoming a member, contrary to Ontario Regulation 437/97, subsection 1(19).
C. STATEMENT OF UNCONTESTED FACTS
6College Counsel presented the Panel with the parties’ Statement of Uncontested Facts and Plea of No Contest (Exhibit 2), which provides the following:
Damir Ivankovic is a member of the Ontario College of Teachers in the Inactive/Non-Practising status, effective May 6, 2022.
The Member obtained an Ontario Teacher’s Certificate on March 2, 1992 and a Certificate of Qualification and Registration on May 20, 1997. Attached hereto and marked as Appendix “A” is a copy of the Ontario College of Teachers Registered Member Information with respect to the Member.
At all material times, the Member was employed by the Hamilton Wentworth District School Board as a principal at [XXX]School (now renamed [XXX]School) (the “School”) in Hamilton, Ontario.
Student 1
Between May 2018 and January 2019, Student 1 was a Grade [XXX] to Grade [XXX] female student at the School.
On multiple occasions, the Member rubbed and/or massaged Student 1’s lower back, neck, and shoulders without Student 1’s consent in the hallways at the School when no one was around.
On occasion, the Member told Student 1 that she looked “beautiful” and/or “gorgeous.”
In or about May or June 2018, when Student 1 was in a learning resource room feeling unwell, the Member rubbed Student 1’s lower back for a couple of minutes. Student 1’s shirt rode up and the Member rubbed her bare back for approximately 30 seconds.
The Member’s conduct had a negative impact on Student 1’s emotional and psychological well-being.
In January 2019, Student 1 reported to the Hamilton Police Service and the Catholic Children’s Aid Society that the Member had engaged in inappropriate comments and unwanted touching, which had made her feel “uncomfortable.” As a result of Student 1’s report and the subsequent investigation, a number of past students and teachers were interviewed. This led to further complaints being identified or brought forward.
Student 2
Between September 2015 and June 2018, Student 2 was a Grade [XXX] to Grade [XXX] female student at the School.
The Member started rubbing or massaging Student 2’s shoulder when she was in Grade [XXX].
Between November 2017 and February 2018, on four separate occasions, the Member touched Student 2’s buttocks when the Member and Student 2 were walking in the hallway. Student 2 described the touches as little taps, though sometimes it felt like the Member was guiding her as they walked.
The Member often complimented Student 2’s appearance and told Student 2 that she was “cute” and “pretty.”
Student 3
Between September 2015 and June 2018, Student 3 was a Grade [XXX] to Grade [XXX] female student at the School.
On multiple occasions, the Member massaged Student 3’s shoulders and back while she was seated at her desk in her classroom.
In the fall of 2017, during a school dance, the Member approached Student 3 in the school gym and stopped or slowed as if to speak with her. The Member briefly touched Student 3’s right breast with his left hand for about two seconds but said nothing and walked away.
In or about June 20[XXX], when the Member was taking a photo with Student 3 at her graduation, the Member put his arm around Student 3 and whispered to her that she looked “beautiful.”
The Member’s conduct had a negative impact on Student 3’s emotional and psychological well-being.
Student 4
Between September 2014 and June 2017, Student 4 was a Grade [XXX] to Grade [XXX] female student at the School.
At all material times, the Member regularly called Student 4 “princess”, “baby girl”, and “sweetheart.”
Student 4 confided in the Member when she was having trouble. On occasion, the Member would rub Student 4’s shoulder slowly with his hands.
On one occasion, when Student 4 was in the hallway, the Member put his hands on her lower back and then moved them to her hip area.
On one occasion, when Student 4 was sitting on a bench, the Member sat next to Student 4, put his hand on her thigh and rubbed her leg.
On one occasion, when Student 4 was at her locker, the Member walked by her, placed his hand on her buttocks and called her “princess.” The Member moved his hand away quickly and continued walking.
The Member’s conduct had a negative impact on Student 4’s emotional and psychological well-being.
Other Inappropriate Conduct
The Member often engaged in unwanted touching with students and staff on their arms, shoulders, elbows, and backs. Some people described the Member’s lower back touching as directing, despite no direction being needed.
The Member regularly referred to female students as "princess", "sweetie", and/or “baby girl” and male students as "champ" and/or "chuck".
The Member’s unwanted touching made students feel “uncomfortable.” Several students described the Member’s conduct as being “weird” and “creepy.”
Criminal Proceedings/Convictions
On August 6, 2019, the Member was arrested by the Hamilton Police Service. He was initially charged with one count of sexual assault and one count of sexual interference upon Student 4 (Information #19-6935 and #19-8729.)
The Member was further charged with one count of assault upon Student 1, two counts of sexual assault upon Student 2 and Student 3, and two counts of sexual interference upon Student 2 and Student 3 (Information #20-62.)
On or about January 13, 2020, a new information with all charges was filed with the Court (Information #20-229):
(a) On or between the 1st day of April in the year 2018 and the 1st day of July in the year 2018, at the City of Hamilton in the said region did unlawfully commit an assault upon Student 1, contrary to the provisions of Section 266 of the Criminal Code of Canada (Count 1);
(b) On or between the 1st day of November in the year 2017, and the 1st day of March in the year 2018 at the City of Hamilton in the said region did sexually assault Student 2, contrary to the provisions of Section 271 of the Criminal Code of Canada (Count 2);
(c) On or between the 1st day of November in the year 2017, and the 1st day of March in the year 2018 at the City of Hamilton in the said region did for a sexual purpose touch, directly or indirectly Student 2, a person under the age of sixteen with a part of his body, to wit: his hand, contrary to the provisions of Section 151 of the Criminal Code of Canada (Count 3);
(d) On or between 1st day of October in the year 2017 and the 22nd day of December in the year 2017 at the City of Hamilton in the said region did sexually assault Student 3, contrary to the provisions of Section 271 of the Criminal Code of Canada (Count 4);
(e) On or between 1st day of October in the year 2017 and the 22nd day of December in the year 2017 at the City of Hamilton in the said region did for a sexual purpose touch, directly or indirectly Student 3, a person under the age of sixteen with a part of his body, to wit: his hand, contrary to the provisions of Section 151 of the Criminal Code of Canada (Count 5);
(f) On or between the 1st day of September in the year 2014 and the 30th day of June in the year 2017 at the City of Hamilton in the said region did sexually assault Student 4, contrary to the provisions of Section 271 of the Criminal Code of Canada (Count 6); and
(g) On or between the 1st day of September in the year 2014 and the 30th day of June in the year 2017 at the City of Hamilton in the said region did for a sexual purpose touch, directly or indirectly Student 4, a person under the age of sixteen with a part of his body, to wit: his hand, contrary to the provisions of Section 151 of the Criminal Code of Canada (Count 7).
On August 18, 2022, the Member pleaded guilty to counts 1, 2, 4 and 6 after charges of sexual assault for counts 2, 4 and 6 were reduced to the included offence of assault. The Crown withdrew the remaining charges.
On August 18, 2022, the Member was given a suspended sentence and placed on three years’ probation. The Member was made the subject of a number of ancillary orders. The following probation condition is relevant to the Member’s eligibility to teach:
(a) The Member is prohibited from being in any employment or volunteer position that places him in the position of trust or authority over anyone under the age of 18 years.
The Member did not appeal his conviction and/or his sentence and the time for an appeal has expired.
Attached hereto and marked as Appendix “B” are certified copies of the Court Information (#19-6935, #19-8729, #20-62 and #20-229), appearances/endorsements, and disposition in the criminal proceeding.
Attached hereto and marked as Appendix “C” is a certified copy of the Member’s Adult Probation Order, dated August 18, 2022.
Attached hereto and marked as Appendix “D” is a certified copy of the Member’s Prohibition Order, dated August 18, 2022.
Attached hereto and marked as Appendix “E” is a certified transcript of the Proceedings (Arraignment and Plea, Summary of Facts and Reasons for Sentence) before the Honourable Justice A.F. Leitch on August 18, 2022 at Hamilton, Ontario.
PLEA OF NO CONTEST
By this document, the Member pleads no contest, for the purposes of this proceeding only, to the truth of the facts and appendices referred to in paragraphs 1-38 above (the “Uncontested Facts”).
The Member hereby acknowledges that the conduct set out at paragraphs 5-8, 11-13, 15-18, 20-33 and 35-38 of the Uncontested Facts constitutes professional misconduct and pleads no contest to the allegations of professional misconduct against him, being more particularly that he breached Ontario Regulation 437/97 subsections 1(5), 1(7), 1(7.1), 1(7.2), 1(16), 1(17), 1(18) and 1(19).
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 Uncontested Facts (including the Appendices) being presented to the Discipline Committee;
(c) he understands that by pleading no contest 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 can accept the Uncontested Facts as correct, and can accept that those facts constitute professional misconduct;
(e) 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;
(f) 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; and
(g) he understands and acknowledges that he is executing this agreement voluntarily, unequivocally, and having had the opportunity to obtain the advice of legal counsel.
The Member provides this plea of no contest pursuant to Rule 3.02 of the Rules of Procedure of the Discipline Committee and Fitness to Practise Committee under protection of the Evidence Act, R.S.O. 1990, chapter E. 23, for the purposes of this proceeding under the Ontario College of Teachers Act, 1996, and for no other purpose. The Member’s plea of no contest does not constitute an admission by the Member as to the facts or findings in any other civil, criminal or administrative proceeding.
In light of the Uncontested Facts and circumstances and the plea of no contest, 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 Statement of Uncontested Facts and Plea of No Contest and the submissions of the parties, the Panel rendered an oral decision on July 14, 2023 finding that the Member engaged in acts of professional misconduct as alleged, contrary to Ontario Regulation 437/97, subsections 1(5), 1(7), 1(7.1), 1(7.2), 1(16), 1(17), 1(18) and 1(19).
E. REASONS FOR DECISION
8The Member did not contest the facts and exhibits referred to in paragraphs 1 to 38 of the Statement of Uncontested Facts and Plea of No Contest and pleaded no contest to the allegations of professional misconduct against him. He acknowledged and the Panel accepts that the conduct set out at paragraphs 5-8, 11-13, 15-18, 20-33 and 35-38 of the Uncontested Facts constitute professional misconduct under the heads of misconduct listed above. These Uncontested Facts demonstrate that the Member engaged in a pattern of inappropriate behaviour by subjecting several young female students to unwanted touching and comments about their appearance, among other things. During his prior criminal proceedings related to this conduct, the Member pleaded guilty to four counts of assault pursuant to section 266 of the Criminal Code of Canada. He was given a suspended sentence and placed on three years’ probation for these criminal offences, and he was made the subject of a number of ancillary orders, including a prohibition from holding any employment or volunteer position that places him in a position of trust or authority over anyone under 18 years old.
9The Uncontested Facts demonstrate that the Member failed to maintain the standards of the profession, contrary to subsection 1(5) of Ontario Regulation 437/97. College Counsel submitted and the Panel accepts that no expert evidence regarding the standards of the profession is required to prove that they were breached when the nature of the misconduct committed by a member is so offside what is acceptable as to be self-evidently misconduct, as is the case here. The Member held a position of trust and authority as principal of the School and engaged in unwanted touching of multiple students. The Member physically abused Student 1, Student 2, Student 3 and Student 4 which led to his criminal conviction on four counts of assault. The Member’s assault of these students is a clear breach of the standards of the profession.
10The Member verbally abused Student 1, Student 2, Student 3 and Student 4, contrary to Ontario Regulation 437/97, subsection 1(7). The Uncontested Facts demonstrate that the Member complimented Student 1, Student 2, Student 3 and Student 4 on their appearances and/or called them by inappropriate names such as, “princess”, “baby girl” and “sweetheart”. For instance, while taking a photo with Student 3 at her graduation, the Member put his arm around her and whispered to her that she looked “beautiful”. Members of the teaching profession, and especially principals who hold heightened leadership responsibilities within the school community, must not comment on students’ appearances or call them by inappropriately personal nicknames. The Member’s comments amount to verbal abuse as he failed to maintain appropriate professional boundaries in his communications with students.
11The Uncontested Facts demonstrate that the Member abused a student or students physically contrary to subsection 1(7.1) of Ontario Regulation 437/97. The Member repeatedly subjected students to unwanted touching by rubbing, massaging and/or touching their arms, elbows, legs, thighs, backs, necks, shoulders, hips, buttocks, and/or breasts. At times, this unwanted touching occurred when no one was around, and in one instance, the Member rubbed Student 1’s lower back for a couple minutes while she was feeling unwell, and then continued to rub her bare back for 30 seconds after her shirt rode up. Another time, during a school dance, the Member approached Student 3, touched her right breast with his left hand for two seconds, and walked away. Evidently, the Member crossed the professional boundaries that must exist between members of the profession and students. It was physically abusive for the Member, who was a principal that held a position of significant trust and authority, to engage in such inappropriate touching of young students. The Member’s criminal findings of assault pursuant to the Criminal Code of Canada are further evidence of his physically abusive conduct.
12The Panel finds that the Member abused a student or students psychologically or emotionally, contrary to subsection 1(7.2) of Ontario Regulation 437/97. The Uncontested Facts demonstrate that the Member’s unwanted touching and inappropriate comments towards several female students made them feel uncomfortable. Students described the Member’s conduct as being “weird” and “creepy”. The Member’s conduct had a particularly negative impact on Student 1, Student 3 and Student 4’s emotional and psychological well-being. In their Victim Impact Statements from the Member’s criminal proceedings (Exhibit 2, Tab E), Student 1 stated that the Member’s touching heightened her [XXX]and made it difficult for her to form trusting relationships with teachers and other authority figures. Student 3 stated that the Member’s conduct caused her to feel shame, fear, and[XXX], and that he stole her childhood and damaged her most trusting relationships. Student 4 stated she was already a vulnerable student at the time of the Member’s misconduct, and that his conduct destroyed her[XXX], including by making her feel scared, nervous, extremely [XXX]and[XXX]. The Member exploited the power imbalance that existed between him and his students and had an extremely negative impact on their psychological and emotional well-being.
13The Member contravened subsections 1(16) and 1(17) of Ontario Regulation 437/97 by contravening a law relevant to his suitability to hold a certificate of qualification and registration, and which put students at risk. The Member was convicted of four counts of assault against Student 1, Student 2, Student 3 and Student 4, contrary to section 266 of the Criminal Code of Canada. The criminal offence of assault is relevant to his suitability to hold a certificate of qualification and registration as members of the profession are entrusted with the safety and well-being of students. The public’s trust in a member of the teaching profession is considerably undermined when they engage in criminal behaviour towards students. The Member’s criminal conduct also demonstrates that he put students under his professional supervision at risk. This is reflected, in part, through his criminal sentence which prohibits him from holding any employment or volunteer position that places him in the position of trust or authority over anyone under the age of 18 years.
14The Panel finds that the Member committed acts that, having regard to all the circumstances, would reasonably be regarded by members as disgraceful, dishonorable or unprofessional contrary to subsection 1(18) of Ontario Regulation 437/97. The Member’s repeated inappropriate behaviour towards students demonstrated a flagrant disregard for his professional obligations and significant moral failing. The Member’s criminal convictions in relation to Student 1, Student 2, Student 3 and Student 4 demonstrate the severity and extent of the Member’s moral and professional failings. The Member took advantage of his trusted position as a principal to repeatedly touch young female students without their consent and he made unwanted comments about their physical appearances. Such conduct is clearly disgraceful, dishonorable or unprofessional.
15Finally, the Member’s conduct was unbecoming a member, contrary to subsection 1(19) of Ontario Regulation 437/97. The Member, as a principal, held a unique position, being entrusted with the care of all students and staff of the School. His conduct in this case damaged the reputation of the teaching profession as a whole. It is fundamental to a principal’s duties to ensure the physical and emotional well-being of the students and staff. Public confidence in the profession is undermined when members assault students and make inappropriate and unwanted comments to them.
F. PENALTY Decision
16The parties entered into a Joint Submission on Penalty (Exhibit 3), which was presented to the Panel. In an oral decision rendered on July 14, 2023, the Panel accepted the Joint Submission on Penalty and made the following order:
The Member is directed to appear before the Committee immediately following the hearing of this matter to receive a reprimand, which will be delivered by videoconference, and the fact of the reprimand is to be recorded on the Register of the Ontario College of Teachers; and
The Registrar is directed to immediately revoke the Certificate of Qualification and Registration of the Member.
G. REASONS FOR PENALTY DECISION
17The Panel accepts the penalty jointly proposed by the parties. The Panel recognizes that, once it ensures that it has jurisdiction to make the order requested, the law confines the Panel’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.1 The Panel finds that the penalty proposed in the Joint Submission on Penalty is neither unduly harsh nor unduly lenient such as to bring the administration of the discipline process into disrepute, based on the following prior decisions of the Discipline Committee presented by College Counsel: Ontario College of Teachers v Silver, 2022 ONOCT 90, Ontario College of Teachers v Young, 2015 ONOCT 92 and Ontario College of Teachers v Kraft, 2022 ONOCT 69.
18The Panel considered the Member’s circumstances in comparison to the cases provided. The aggravating factors in the Member’s case are the prolonged duration of the Member’s misconduct which affected multiple students and the fact that it led to significant emotional harm for students and their families. In terms of mitigating factors, the Member did not contest his misconduct, saving the time and expense of a contested hearing and saving witnesses from attending to testify. After weighing these factors, the Panel accepts that the penalty proposed would not bring the administration of the discipline process into disrepute.
19The Panel finds that the Member’s pattern of inappropriate conduct warrants a reprimand. Members are expected to serve as role models that students can trust, but the Member failed to do so when he breached boundaries with numerous students several times, including by inappropriately touching them. The reprimand allows the Panel 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 and notify members and the public that such behaviour is not tolerated.
20The Panel finds that revocation of the Member’s Certificate of Qualification and Registration is appropriate in this case. The Member’s conduct towards several young students was abhorrent and reprehensible. The Member’s multiple, repeated acts of assault warrant an order of the Panel’s most severe penalty available: revocation. Not only has the Member’s conduct had a grave impact on his victims, but it has also jeopardized the public’s trust in the teaching profession. The Member’s revocation will serve as a specific and general deterrent, by sending a clear message to the Member and the profession that members must exercise sound professional judgment and must refrain from engaging in unwanted touching of students. Revocation will also serve to protect the public interest by removing the Member from Ontario’s schools, thereby limiting the Member’s access to other students or potential victims of his unwanted touching and attention.
21The Panel is satisfied that the penalty is appropriate in the circumstances and meets the principle of serving and protecting the public interest.
Date: July 23, 2023
Lois Figg Chair, Discipline Panel
Scott Barker, OCT Member, Discipline Panel
Terrence Singh, OCT Member, Discipline Panel
Footnotes
- See R. v. Anthony-Cook, 2016 SCC 43, [2016] 2 S.C.R. 204, and Bradley v. Ontario College of Teachers, 2021 ONSC 2303.