In disciplinary law, it is not a court that imposes a sanction on a professional found guilty of violating the Professional Code or its own code of ethics, but rather a Disciplinary Council. Just as the parties can make a joint recommendation before a court, they can do so before the Disciplinary Council. A joint submission, or joint sentencing submission, occurs when Crown and defence counsel agree on a sentence or sanction that they believe is appropriate in the circumstances and recommend that sentence to the Council. It will then be up to the Council to decide whether to endorse this recommendation or not. However, in accordance with the principles of criminal law, the disciplinary council will be somewhat bound by this recommendation. The judge will have to accept it unless he or she believes that it brings the administration of justice into disrepute or is contrary to the public interest. This will occur when informed and reasonable people believe that the proposed sentence is frustrating the proper functioning of the justice system.
This high standard is due to the fact that joint submissions are beneficial and necessary for the sound administration of justice, both in criminal and disciplinary matters. This is why the disciplinary council will have little discretionary power. Indeed, several disciplinary decisions raise the importance for the board not to question the severity or leniency of the sentence, not to weigh the relevant factors as it would in sentencing, but really to question only the effect of the recommendation on the public interest. Consequently, as in criminal law, it will be quite unusual for the disciplinary council not to accept the joint recommendation of the parties in a disciplinary proceeding. For example, in a case involving a doctor, 2 counts were brought against the doctor for having practiced his profession on several occasions under the influence of alcohol, making errors in forms, requests, prescriptions, injection preparations and dressing changes, as well as demonstrating a high rate of absenteeism and last-minute cancellations of appointments, contrary to the Code of Ethics of Physicians. Having to decide whether or not to endorse the parties’ joint recommendation, the Disciplinary Council recalled that the sanction is intended, among other things, to protect the public and to deter the professional from reoffending. It recalls that the sanction must be proportional to the seriousness of the offence and respect the principle of individualisation. In its analysis of the objective factors, the Council found that the offences were very serious and that the respondent overshadowed the medical profession and the high level of public confidence in it. In addition, the offences are spread over a long period of time, so the respondent had several chances to treat herself. In its analysis of the subjective factors, the Board noted the respondent’s lack of a disciplinary history and the fact that she appeared to understand the seriousness of her actions. He also noted the respondent’s relapses and her difficulty in treating herself. In light of these factors, the Council concludes that the parties’ joint recommendation to impose on the respondent a period of temporary striking off the roll of 8 months for each of the counts, to be served concurrently, subtracting the period already served by the respondent, as well as to impose certain conditions, such as submitting to expert examinations to ensure her suitability, to maintain therapeutic follow-up and screening tests is reasonable and must be ratified. If you are faced with a disciplinary complaint, a strategic approach can make all the difference in the outcome of your case. Contact Lambert Avocats today for an in-depth analysis and a defense tailored to your situation.