Disciplinary law is a sui generis law, a branch of law that obeys its own rules. Thus, whereas in criminal law, the accused is never compelled to answer questions from the police or to testify, section 147 of the Professional Code provides that in disciplinary law, the professional is compellable. This means that he may be forced to testify and that he is obliged to answer the syndic’s questions during his investigation, he will not be able to invoke his right to silence or his obligation to respect professional secrecy.
Thus, when the property manager questions the professional, the latter, forced to answer, may have to admit elements against him. Although disciplinary law is a branch of law in its own right, the rules of evidence and the taking of evidence in disciplinary law are those set out in the Civil Code of Québec. The professional’s statements could constitute what is called an extrajudicial confession, i.e. made outside the judicial body. A confession is defined by article 2850 of the Civil Code of Québec : it involves the recognition of a fact that is likely to produce adverse legal consequences against its author. In other words, it is a statement by the professional incriminating him or acknowledging his wrongdoing, which may eventually be held against him.
Conditions for the validity of the confession
It is not just any statement that will be qualified as a confession. It must meet certain conditions, and it will be up to the court to qualify it as a confession or not. Inter alia:
- The confession can be written or verbal.
- The confession can be implicit or explicit.
- The admission must be clear, unambiguous and unequivocal. Mere silence can only arise in cases provided for by law.
- The admission must be a question of fact and not a question of law.
- An apology, that is, an expression of sympathy or regret, does not constitute an admission and cannot be admitted into evidence against the professional.
A recording of the professional’s comments by his patient or the syndic, or letters or emails written by the professional, could also constitute extrajudicial confessions. In order for the admission to be effective against the professional, it will be up to the trustee to allege it and prove it before the Disciplinary Council. Thus, the trustee will have to prove the confession by his own testimony under oath, or by putting it in evidence if it is a written document or a recording. It will then be up to the Disciplinary Council to judge the probative value of the confession, i.e. its legal value, which translates into the reliability and importance it will give it. Once the extrajudicial confession is put into evidence by the trustee, he benefits from a presumption of truth. Indeed, it is considered unnatural for a person to lie about something that is prejudicial to him, which is why the confession is generally considered to be highly reliable. However, the professional may try to demonstrate the falsity of the content of the confession or to revoke it by explaining why his or her statements were false.
Allegation of an out-of-court confession against a professional
The courts have recognized that there is no obligation for the trustee to send a formal notice to the professional of his or her intention to allege an out-of-court admission against him or her .
However, in a case involving a psychologist, the Professions Tribunal concluded that, in the interests of transparency and full disclosure of the evidence, it is desirable that the professional be informed of the allegation of an out-of-court admission that the syndic intends to file. Thus, if the trustee does not inform the professional of his intention to allege an extrajudicial admission and takes him by surprise, it is possible that the courts will see it as a breach of procedural fairness and the professional’s right to make full answer and defence. Finally, the courts will be flexible in terms of how the trustee can inform the professional, not requiring the professional to identify the specific passages of the document or recording that he or she intends to use as an out-of-court admission. If you are summoned by the trustee or if you are concerned that your statements may be held against you, it is essential to obtain legal advice early in the disciplinary process. Don’t take any chances with your defense. Contact Lambert Avocats today for a strategic assessment of your situation and effective protection of your rights.