Disciplinary law: the Disciplinary Council's jurisdiction is limited concerning joint recommendations on sentencing
In a judgement rendered on September 12th, 2022, the Professions Tribunal confirms that the disciplinary council, to whom representations concerning sentencing are jointly presented by the parties, must question whether the sentence proposed is contrary to public interest or the proper administration of justice. If the Council opts to instead determine the fairness of the proposed sentence, it errs in law, thus justifying the intervention of the Professions Tribunal in appeal (Duval c. Comptables professionnels agréés (Ordre des), 2022 QCTP 36).
Before the Disciplinary Council, a disciplinary plaint was filed against the professional in question. Following a ten-day hearing and several witness testimonies, a settlement was reached between the parties according to which the accountant pled guilty to a modified disciplinary complaint consisting of only one count and admitted to certain facts regarding the commission of the infraction in a document filed jointly by the parties.
The parties presented a joint recommendation concerning the sentence by suggesting that a reprimand and a limited payment of $8000 of fees be imposed on the professional. This recommendation was dismissed by the Council, who instead decided to a impose a three-month striking off the roll on the accountant, as well as the complete payment of all fees incurred. The Council justified its decision to not endorse the joint recommendation by concluding that the suggested sentence was much too lenient in the circumstances.
This decision was brought into appeal by the accountant before the Professions Tribunal, an appeal that was supported by the syndic. Both parties pleaded that the Council had erred in refusing to endorse their joint recommendation and in basing its decision on aggravating factors that had not been part of the factual background that had been presented by the parties, but instead had been part of a partial hearing that had been abruptly interrupted by the guilty plea registered by the accountant and the joint recommendation suggested by the parties.
To begin, the Professions Tribunal confirms the principals established by the Supreme Court of Canada in Anthony Cook: the Disciplinary Council must determine whether the suggested sentence is contrary to public interest or discredits the proper administration of justice. The Disciplinary Council cannot examine the fairness of the sentence proposed.
In order to render its decision, the Disciplinary Council must appreciate the proof that was administered by the parties. In this particular case, this proof was limited to the factual background jointly presented by the parties following the settlement, and not the testimonies heard during the partial hearing. According to the Professions Tribunal, the Council should have based its decision on the joint statement filed, and not on elements that had not been admitted by the parties following their settlement.
Bu judging in this manner, the Council founded its decision on an incomplete presentation of proof, thus violating the rules of procedural fairness. The Professions Tribunal concludes that if the Council had respected the circumscribed limits of its jurisdiction concerning joint recommendations and had based its decision only on the elements that had been admitted by the parties, it would have necessarily endorsed the sentence proposed, a sentence that reflected the factual background presented by the parties and respected the range of sentences imposed in similar circumstances. Finally, the Tribunal confirms that the joint recommended sentence is not contrary to public interest and does not discredit the proper administration of justice Dubé Légal inc., disciplinary law lawyers.
