Disciplinary law: the decision on the conviction cannot be appealed by the professional who pled guilty
In a judgement rendered on May 27th, 2021, the Professions Tribunal explained the in accordance with the Professional Code, a provisional striking off the roll will remain in effect until the disciplinary council’s decision on the penalty becomes enforceable. If the decision on the penalty is appealed before the Professions Tribunal, the professional will need to request a stay of execution in order to put an end to the provisional striking off the roll. The Tribunal also confirmed that the decision on the conviction could not be contested in appeal when the professional pleaded guilty before the disciplinary council, unless the professional could invoke motives justifying the withdrawal of his guilty plea (Laplante v. Audioprothésistes (Ordre professionnel des), 2021 QCTP 57).
A disciplinary complaint consisting of 34 counts and a demand for an immediate provisional striking off the roll was filed against the professional in question. The professional presented an application for a stay of proceedings that was refused by the Disciplinary council and was never brought before the Superior Court for review. A few months later, the Disciplinary council ordered the provisional striking off the roll of the professional. During the hearing on the conviction, the professional pleaded guilty and the parties proceeded in presenting joint recommendations on the penalty regarding only certain counts of the disciplinary complaint.
The professional later decided to appeal the decision on his conviction before the Professions Tribunal, by arguing that the Council had erred in refusing his application for a stay of proceedings. The professional also decided to contest the penalties that had been imposed concerning the counts that had not been subject to joint recommendations and requested a stay of the provisional striking off the roll.
To begin, the Professions Tribunal explains that the appeal regarding the decision on the conviction has absolutely no chance of succeeding, considering that the professional had pleaded guilty before the Disciplinary council. The Council had taken the time to ensure that the guilty pleas were informed and voluntary and that the professional, who was represented by a lawyer at the time, was aware of the consequences of admitting his guilt.
On this subject, the Professions Tribunal highlights that the definitive nature of pleas in disciplinary matters, as is the case in criminal matters, is of great interest to society as a whole, and is necessary in order to ensure the stability, the integrity and the efficacity of the disciplinary system. A guilty plea signifies the professional’s admission of all the essential facts necessary to prove the accusations. The professional thus renounces to his right to a hearing, to the presumption of innocence, and indirectly, to his right to appeal. It is therefore only if the professional invokes valid motives justifying the withdrawal of his guilty plea that the decision on the conviction can be appealed.
In regards to the stay of execution requested by the professional, the Professions Tribunal specifies that the stay concerns the provisional striking off the roll, still in effect, and not the temporary striking off the roll that was imposed by the decision on the penalty, as said decision is not yet executory, given the professional’s appeal. In order to determine whether the stay of execution should be allowed, the Tribunal applies the following four criteria: (1) the economy of the law; (2) the apparent weakness of the decision; (3) the existence of exceptional circumstances and (4) the irreparable damage and the balance of inconveniences.
The Tribunal explains that the economy of the law does not support the stay of execution. Very exceptionally, the Professional Code provides that an immediate provisional striking off the roll remains in effect until the Professions Tribunal’s final decision becomes executory. In addition, there is no apparent weakness in the Disciplinary council’s decision, as the Council summarized the facts presented by the parties and properly applied the general principals applicable to disciplinary penalties. Concerning the criteria of the existence of exceptional circumstances and irreparable damage, the Professions Tribunal admits that they are sensitive to the professional’s argument that the usual delays in appeal will render his appeal academic, and decides to refer the file to the President in order to negotiate a schedule with the parties and ensure that a hearing occurs as quickly as possible Dubé Légal inc., disciplinary law lawyers.
