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Disciplinary law: the consequences, before a disciplinary council, of a guilty plea in a criminal file

In a decision rendered in February 2016, the Professions Tribunal confirmed that a disciplinary council must not only consider the judicial admissions made by the professional, bust also his extra-judicial admissions that are put into evidence by the syndic, in order to determine whether or not the professional should be found guilty. When a disciplinary council fails to consider an admission of guilt entered before a criminal court, it errs in law, thus justifying the Professions Tribunal’s intervention. In addition, a guilty plea entered by a professional before a criminal court constitutes an extra-judicial admission that may result in a disciplinary conviction under section 59.2 of the Professional Code (Comptables professionnel agrees (Ordre des) v. Hamel,  2016 QCTP 10).

THE FACTS

In November 2010, an accountant is accused of cannabis production, an accusation to which he enters a guilty plea before a criminal court. Following this guilty plea, a disciplinary complaint is filed against said accountant under section 59.2 of the Professional Code, accusing him of having engaged in “an act derogatory to the honour or dignity of his profession”. Despite this guilty plea being put into evidence by the syndic, the Disciplinary Council decided that the syndic had failed to demonstrate that the accountant had actually engaged in the production of cannabis. According to the Council, the syndic had failed to meet his burden of proof and had failed to adequately demonstrate that the accountant had engaged in an activity incompatible with the accounting profession. Consequently, the accountant is acquitted of the disciplinary counts filed against him.

This decision is appealed before the Professions Tribunal by the syndic, who argues that the Council erred in its analysis on the consequences of a valid guilty plea entered before a criminal court.

THE PROFESSIONS TRIBUNAL’S DECISION

After having considered the arguments presented by each of the parties, the Professions Tribunal convicts the accountant of the disciplinary count set out by section 59.2 of the Professional Code, and draws the following conclusions:

1.    A guilty plea entered before a criminal court constitutes an extra-judicial admission.

2.    An admission is presumed to be true and cannot be set outside without valid reason.

3.    In absence of evidence to the contrary, a disciplinary council must consider the evidence of a guilty plea entered before a criminal court; failing to properly consider such evidence is an error in law, justifying the Professions Tribunal’s intervention in order to the give the guilty plea its full effect.

4.    When the guilty plea is the result of successful negotiations between the prosecution and the defense, it is not part of the Professions Tribunal’s role to determine what exactly incited the professional to enter into a deal with the prosecution or if the guilty plea was willingly entered.

5.    Furthermore, even if cannabis production is an activity that falls outside the accounting profession, it nevertheless remains an illegal trade that blemishes the profession’s integrity.

6.    This being said, a professional becomes subject to his professional order’s control for all conduct that may be deemed derogatory to the honour or dignity of his profession.

THE LESSONS TO BE LEARNED

1.     A guilty plea entered before another court is not considered to be a judicial admission, but rather an extra-judicial admission, allowing a disciplinary council, in absence of evidence to the contrary, to conclude that the acts referred to in the plea were committed by the professional in question.

2.     If a disciplinary council fails to consider an extra-judicial admission, it commits a palpable and overriding error.

3.     A professional violates his profession’s honour or dignity when he compromises the public’s trust in him or his profession; this trust can be compromised not only by the his conduct during his professional life, but also his conduct during his private life Dubé Légal inc., Montréal disciplinary law lawyers.