Disciplinary law, although it often borrows from criminal and civil law, is characterized by its own rules; it is an area of law in its own right. Disciplinary hearings will therefore have their own sentencing principles.
Purpose of the sanction in disciplinary law
While criminal law is rather punitive and deterrent, the sanction in disciplinary law is not intended to punish the professional, but to protect the public. Specifically, when the Disciplinary Council issues a sanction, it will have to strike a balance between the objectives of the disciplinary sanction, including:
- Discourage the professional from doing it again;
- Discourage other members of the profession from engaging in such behaviour;
- Maintain the good reputation of the profession;
- Remove someone who would be dangerous to the public interest or unable to serve it;
- Maintain public trust;
- Rehabilitate the professional.
It will therefore be granted less from a perspective of punishment or reparation, but above all from a perspective of protecting the public and deterring reprehensible behaviour. However, as in criminal law, the disciplinary sanction must be appropriate, just, and proportionate to the seriousness of the offence. The sanction must also respect the principle of individualisation, i.e. it must be adapted to the situation, the personality of the professional and the particular facts of the case.
Factors to consider
In order to render a sentence that it considers fair in the circumstances, the Disciplinary Council will take into account several factors, both objective and subjective, that will aggravate or mitigate the penalty. Among the aggravating factors to be considered, the Disciplinary Council will retain in particular:
- The fact that the public’s confidence in the members of the order or the profession has been affected by the actions of the professional;
- The fact that the offence against the latter is related to the practice of the profession;
- The fraudulent nature of his act.
Mitigating factors include:
- The professional’s rehabilitation efforts and willingness to correct their behaviour;
- The respondent’s cooperation with the investigation or disciplinary hearing;
- Lack of a disciplinary history;
- A guilty plea;
- The presence of remorse.
It should be noted that this list is not exhaustive. Moreover, the absence of prejudice is not a mitigating factor.
Types of sanctions in disciplinary law
If the Disciplinary Council finds the professional guilty, it will impose one or more sanctions provided for in the Professional Code. This could be:
- A warning;
- A fine of not less than $2,500 and not more than $62,500 for each offence;
- Revocation of the licence to practise or specialist’s certificate;
- A limitation or suspension of the right to carry out professional activities;
- A striking off the roll (temporary or permanent) from the professional order.
In addition, if, in addition to a breach of ethical obligations, the professional contravenes a civil or criminal law, he or she may face penal or civil proceedings before the courts.
Minimum Penalties
The Professional Code also provides for minimum penalties for certain offences.
- The offence of misappropriation of sums of money without right or their misuse will lead to at least a temporary expungement.
- The illegal practice of the profession will be punishable by, in the case of a natural person, a fine of not less than $2,500 and not more than $62,500 or, in other cases, a fine of not less than $5,000 and not more than $125,000.
- Sexual misconduct by a professional will result in a fine and disbarment of at least 5 years, unless the professional proves that a disbarment of a shorter duration would be warranted in the circumstances.
The allocation of the sentence is at the discretion of the Disciplinary Council, and it will be able to follow the sentencing ranges that are already established according to the type of offence as a guide and guidelines. He is not obliged to follow them, but his decision may be reviewed if the sanction is deemed unreasonable, in particular by the Professions Tribunal.
For example, in a case involving a psychologist who had been in a romantic relationship with a patient for 3 months, the Tribunal ruled that the Disciplinary Council’s decision to impose a 4-year disbarment was unreasonable. He considered that the Council had not taken into account the personal characteristics of the professional, such as the fact that he had 25 years of practice and no blemish on his record, that he had undertaken a follow-up with a psychiatrist, that these were isolated acts and that, given his age, it was reasonable to believe that a 4-year disbarment could put an end to his professional career. Considering the low risk of recidivism, as well as the fact that the objective of individual deterrence had been achieved, the Tribunal finally concluded that a 2-year disbarment was more appropriate.
Defending your professional order
A disciplinary complaint can not only affect your right to practice, but also affect your personal and professional life.
At Lambert Avocats, our expertise in disciplinary law allows us to defend your interests with rigor and professionalism. We analyze every aspect of your case to build a customized strategy, whether it is to negotiate a fair sanction or contest an unreasonable decision.
Don’t let a disciplinary complaint jeopardize your future. Contact our team today for a confidential consultation.