Disciplinary law: The professional's right to practice his profession as a persued objective of disciplinary law
In a decision rendered on March 31st, 2021, le Professions Tribunal confirmed that a disciplinary council must consider the professional’s right to practice his profession when determining the appropriate sanction. Failure to do so could result in the council committing an error in principal, justifying that the decision determining the sanction be overturned in appeal (Cloutier v. Psychologues (Ordre professionnel des), 2021 QCTP 47).
In a decision rendered following a guilty plea in regards to an infraction of sexual misconduct, the Disciplinary Council imposed a temporary striking off the roll for a period of four years and a fine of $2500 on the psychologist in question. The parties were in agreement concerning the amount of the fine; as to the striking off the roll, the syndic had proposed a period of five years, whereas the psychologist had proposed a period of two years. The Council took into account certain aggravating and mitigating factors in order to instead impose a period of four years, period that was then appealed before the Professions Tribunal by the psychologist.
The psychologist argued that the Council had failed to individualise the sanction by not justifying the reasons why a temporary striking off the roll for a period of four years was necessary to protect the public in the circumstances.
To begin, the Professions Tribunal recognizes that its role in reviewing the imposed sanction is limited, but that it must intervene when the disciplinary council commits an error of principal that has impact on the determination of the sanction. An error of principal may exist when the council fails to consider a relevant factor or erroneously considers a factor; an error may also exist if the council exercises its discretionary power in an unreasonable manner, notably by over-insisting on a given factor or by failing to attribute the proper amount of importance to another factor.
After analysing the decision rendered by the by Disciplinary Council, the Professions Tribunal concluded that the Council had failed to consider multiple important elements of the evidence presented, thus impacting the determination of the sanction: the psychologist’s long career and his clean disciplinary record, his age, his collaboration with the syndic, his guilty plea, as well as the sincere regrets concerning his actions he expressed when testifying.
Furthermore, the Tribunal judged that the Disciplinary Council had erred by failing to consider the professional’s right to practice his profession. Given the psychologist’s age and clean disciplinary record, his right to earn a living should have been taken into account by the Council in order to properly individualise the sanction. According to the Professions Tribunal, failure to consider this right constitutes a clear error of principal.
Finally, the Professions Tribunal reviewed the range of sanctions applicable in similar cases (usually a temporary striking off the roll between two and six years), and pondered all the relevant circumstances of the case file, including the many factors that had been ignored by the Disciplinary Council, in order to impose the appropriate sanction in accordance with the particular context and profile of the psychologist in question: a temporary striking off the roll for a period of two years Dubé Légal inc., disciplinary law lawyers.
