Disciplinary law: The principle of proportionality in regards to the offence of hindrance
On January 11th 2021, the Professions Tribunal discussed the principle of proportionality and its application in disciplinary law, all while recognizing that even if the majority trend is to impose a long period during which the professional will be struck off the roll for a first infraction of non-collaboration or hindrance, this sanction may be inappropriate if contrary to the principle of proportionality (Serra v. Médecins (Ordre professionnel des), 2021 QCTP 1).
Before the Disciplinary Council, the professional pleaded guilty to two complaints alleging her non-collaboration. These complaints accused her of having neglected to respond to certain requests made by the syndic, and having hindered a disciplinary investigation concerning significant irregularities in a medical file.
The Disciplinary Council condemned the professional to a temporary striking off the roll for a period of six months and a $2500 fine per count regarding the first complaint, as well as a temporary striking off the roll for the a period of twenty-four months regarding the second complaint. The Council justified its decision on the recent evolution in the severity of sanctions imposed by precedents for hindrance-related offences.
This decision was appealed by the professional, who argued that the Council had deviated from the sanctions normally imposed in regards to hindrance-related offences, resulting in a purely punitive sanction, and asked that the periods of striking off the roll be reduced to two and four months respectively.
To begin, the Professions Tribunal reiterated that it is only errors of principle that have an impact on how the sanction is determined, that can justify the intervention of the Tribunal when said sanction is appealed.
The Professions Tribunal also reiterated that the range of appropriate sanctions established by precedents is only a guide, and not a constraint, which forces the disciplinary council who chooses to deviate from the existing range of appropriate sanctions to justify why this range cannot be applied to the given circumstances.
Finally, the Tribunal reiterated the objectives of a disciplinary sanction, notably the public’s protection and the deterrence against wrongful conduct, all while specifying that the principles of individualisation and of proportionality must guide all disciplinary boards which deciding on sanctions.
Concerning the offence of non-collaboration, the Tribunal recognized that hindrance is a serious ethical offence, and that more and more disciplinary councils feel the need to impose periods of striking off the roll that range from one to five months in order to emphasize the importance of collaborating with the syndic for the proper functioning of the professional system. However, it is only in exceptional cases that councils may impose longer striking off the rolls.
According to the Tribunal, the sanctions imposed by the Disciplinary Council in the circumstances in question are clearly unfounded, because they go beyond the range of appropriate sanctions, despite the file not having any similarities to the files where longer periods of striking off the roll were imposed.
In deviating without any valid justification to the range established by precedents, the Council committed an error of principle. In addition, by not considering the mitigating factors presented by the professional, notably the measures she had taken to correct her conduct and rehabilitate, the absence of relevant disciplinary history, as well as the low risk of reoffending, the Professions Tribunal judged that the sanctions imposed by the Council were not only unjustified, but were also disproportional. The Tribunal therefore replaces the periods of striking off the roll imposed by the Council by a period of two months per count regarding the first complaint, and four months regarding the second complaint Dubé Légal inc., disciplinary law lawyers.
