Disciplinary law aims to regulate the conduct of professionals and to sanction breaches of their practice. It is a sui generis right, which means that it is a right in its own right and that each professional order is governed by its own laws, standards of conduct and regulations of ethics and professional conduct.
However, certain principles of civil law and criminal law will apply in disciplinary law, so it is a hybrid law. The Canadian Charter of Rights and Freedoms, which protects fundamental rights and freedoms, has a particular application in disciplinary law. Not all fundamental rights will be protected by this Charter in disciplinary law. Let’s look at how certain rights are recognized or not recognized in a disciplinary law context.
Unrecognized Rights
Right to be tried within a reasonable time
This right to be tried within a reasonable time, codified in section 11(b) of the Canadian Charter, was well recognized in the criminal law in R. v. Jordan of the Supreme Court of Canada. However, several decisions have since concluded that this decision does not apply in the context of disciplinary law, since it applies only to an accused person in a criminal proceeding. The professional, unlike the accused, does not see his freedom or security jeopardized because of long delays, and does not benefit from this protection.
This does not mean, however, that any delay will be acceptable in disciplinary law, since it could in some cases lead to a reduction in the penalty or even, exceptionally, a stay of proceedings if it constitutes an abuse of process. In 2022, in Law Society of Saskatchewan v. Abrametz, the Supreme Court considered this issue and found that there will be an abuse of process due to the delay where:
- The fairness of the hearing is compromised;
- The inordinate delay causes significant prejudice to the accused professional and brings the administration of justice into disrepute.
It will be up to the professional who wants to obtain a stay of proceedings to prove that the abuses are of such a magnitude that they offend the sense of justice and render the trial unfair, by proving serious, certain and serious prejudice. It should be noted that the accused’s right to be informed without undue delay of the specific offence with which he or she is charged, codified in section 11(a) of the Canadian Charter, does not apply to the disciplinary law professional either.
Right to silence
The right to silence, including the right against self-incrimination, is a right protected by sections 7, 11(c) and 13 of the Canadian Charter of Rights and Freedoms. In criminal law, the accused is never compelled to answer the questions of the police, or to testify. However, section 147 of the Professional Code provides that in disciplinary law, unlike criminal law, the professional is compellable. This means that he may be compelled to testify, he will not be able to invoke his right to silence or his obligation to respect professional secrecy. In return for the obligation to testify, the professional’s testimony is privileged and cannot be used against him or her before a judicial proceeding, so it is a certain partial protection against self-incrimination. However, there is an exception to this rule: incriminating testimony that relates to perjury (when lying under oath) or contradictory testimony can be used against the author in other proceedings, which is why in both cases the professional will be allowed to invoke his or her right to silence.
For example, in Lafrance v. Pigeon, the trustee’s investigation was aimed at proving the real estate agent’s perjury before the Disciplinary Council, which could have been used against him in criminal proceedings, which is why the Court of Québec allowed him to remain silent and not answer the trustee’s questions.
Rights recognized
It should be noted that there are also certain rights guaranteed by the Canadian Charter of Rights and Freedoms that are recognized in disciplinary law. The principles of procedural fairness apply in disciplinary law, which includes that the professional will have the right to make full answer and defence. This includes several rights:
Right to lawyer
This is particularly the case with the right to a lawyer. Indeed, section 170 of the Professional Code provides that the professional has the right to be assisted or represented by the lawyer of his choice.
Right to Disclosure of Evidence
In addition, the professional will also have the right to disclosure of the evidence against him. This means that the complainant will have to disclose to the professional, upon request, all the evidence he or she has against the professional, whether or not he intends to use it at trial. However, he will not be obliged to disclose elements that are irrelevant or protected by professional secrecy.
Right to the presumption of innocence
The professional has the right to be presumed innocent until proven guilty. The burden of proving guilt, on a balance of probabilities, will be on the prosecution.
Right to interpreter service
The professional will have the right to an interpreter service, without the obligation to bear the costs. When faced with a disciplinary complaint, it is crucial to understand the rights that are guaranteed to you and those that are not. A strategic defence can make all the difference in the outcome of your case. Protect your career and your rights. Contact Lambert Avocats today for a complete assessment of your situation and a defence tailored to your case.