Disciplinary sanction: more lenient sanctions apply to offenses committed under the old law

The Quebec Court of Appeal, in Paquin v. Lapointe, deals with the retrospective application of the amendments to section 156 of the Professional Code, which provides for a minimum period of disbarment of 5 years for offences of a sexual nature committed by professionals.

The appellant, a physician, was found guilty of such an offence for sending messages with sexual connotations to a patient via Facebook. He was temporarily disbarred for 12 months and fined $2,500 by the Disciplinary Council of the College of Physicians.

The appellant challenged the sanction by invoking the principle of non-retroactivity of laws, since the offence had been committed before the entry into force of the amendments to section 156 of the Professional Code. He requested a disbarment of 2 months and the maintenance of the fine.

The Professions Tribunal and the Superior Court dismissed his appeal, concluding that the amendments to section 156 of the Professional Code applied retrospectively, because they aimed to ensure the protection of the public and not to punish the professional for a past act.

The Court of Appeal allowed the appellant’s appeal, finding that the Professions Tribunal and the Superior Court had made an error of law by disregarding the presumption against the retrospective effect of laws without taking into account the Tran decision of the Supreme Court, which requires a clear indication that the legislator balanced the benefits of the retrospective nature of the law and its potential unfairness.

The Court of Appeal quashed the judgment of the Superior Court and granted the appellant’s application for judicial review. It referred the case to another division of the Disciplinary Council of the College of Physicians to impose the sanction, taking into account the case law prior to the amendments to section 156 of the Professional Code.

Dubé Légal inc, lawyers, professional law and disciplinary law