Disciplinary law: rehabilitation as an objective when the professional is a business owner
In a judgement rendered on December 1st, 2011 by the Court of Québec, acting as a court of appeal in regards to a decision rendered by the Chambre de la sécurité financière’s Disciplinary Committee, an emphasis was put on the rehabilitation of the professional as one of the primary objectives pursued by disciplinary law. The Court specified that a temporary striking off the roll is not always necessary to assure that the public is protected, and that the consequences resulting from a striking off the roll must be taken into account by the disciplinary committee who considers imposing it (Ledoux v. Chambre de la securité financière, 2011 QCCQ 15733).
Before his disciplinary committee, the professional in question pleaded guilty to 25 counts accusing him of having advised and encouraged 15 of his clients, between 2004 and 2006, to purchase investments that were not authorized by his certification. The Disciplinary committee sentenced the professional to a temporary striking off the roll for a period of 18 months on each count, to be served concurrently. This sanction was brought to appeal before the Court of Québec by the professional.
To begin, the Court of Québec confirms the limits that surround its powers in appeal, and indicates that the domain of disciplinary sanctions falls within the specialized jurisdiction of the Disciplinary committee. The imposition of a rationally acceptable sanction cannot be revised and favours deference towards the decision rendered by the committee.
However, when the disciplinary sanction imposed does not aim to accomplish the primary objectives sought by disciplinary law, namely the protection of the public, the professional’s deterrence from reoffending, exemplarity and rehabilitation, also known as the professional’s right to practice his profession, the appeal court is justified to intervene in order to determine whether the resulting sanction is too severe, and thus unreasonable.
It is these principles that guided the Court of Québec in its examination of whether or not the temporary striking off the roll for a period of 18 months that had been imposed on the professional assured the public’s protection.
Seeing as the two parties were in agreement that a temporary striking off the roll was necessary in the circumstances, the Court concentrates on the duration of the striking off the roll, all while paying careful attention to the fact that the professional in question was a business owner. On this particular subject, the Court decides that any temporary striking off the roll, regardless of its duration, presents a risk of the professional’s business shutting down, as well as the risk of the layoff of his two employees, including his spouse. The Court also considers the fact that the shutting down of the business would result in the professional’s family being deprived of all revenue, and that given the long period imposed, it was an illusion to even think that the professional could recuperate any lost clientele.
The Court of Québec decides to reduce the temporary striking off the roll, initially imposed for a period of 18 months, to 6 months, all while highlighting the fact that aside from the rare cases where the professional must be completely eliminated from the profession, the disciplinary sanction imposed must be compatible with the reintegration of the professional within his functions Dubé Légal inc., disciplinary law lawyers.
