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Disciplinary law: the Professions Tribunal's deference when faced with an appeal concerning a sentence

In a judgement rendered on October 24th, 2022, the Professions Tribunal reiterated the principals applicable when appealing a disciplinary sanction, and confirmed that the Tribunal must exercise deference towards the decision rendered by the Disciplinary council, as the Tribunal’s role is not to reweigh the elements that were first considered by the Council, but rather to determine whether or not the Council committed an error by imposing an unreasonable sentence. The non-intervention of the Professions Tribunal is thus the rule (Tétreault v. Barreau du Québec (syndic adjoint), 2022 QCTP 44).

After having pleaded guilty to the infraction of having systematically refused to apply the Programme de traitement non judiciaire de certaines infractions criminelles commises par des adultes, and therefore, having infringed his duty to act within public interest and the proper administration of justice and having comprised the fairness of the judicial process, the lawyer in question was sentenced by the Disciplinary council. Even though the lawyer had suggested that he simply be reprimanded, and the syndic had proposed that a fine or the lawyer’s striking off the roll for a short period be imposed, the Disciplinary Council decided to impose a striking off the roll for a period of two months. The professional appealed this decision before the Professions Tribunal, notably alleging that the Council had committed an error in principle by imposing an excessive and unreasonable sentence.

To begin, the Professions Tribunal specifies that its non-intervention is the rule in appeal of a disciplinary sanction, unless it has been shown that the Disciplinary council committed an error of principal, omitted to consider a relevant factor or insisted too greatly on an irrelevant factor, or if the sentence imposed is manifestly unreasonable or deviates from the sentences that are usually imposed in similar matters. Otherwise said, the Professions Tribunal’s role is not to substitute its appreciation by imposing the sentence that it would have imposed had it tried the case in the place of the Disciplinary Council.

The Professions Tribunal then proceeds to analyse the decision on sentencing rendered by the Council, who applied the general principles established by the Court of Appeal in Pigeon v. Daigneault, all while emphasizing the public’s protection as its main priority in the determination of the sanction. The Council also took the time to apply the principles of proportionality in relation to the seriousness of the fault committed, the individualisation of the sentence, as well as the objective and subjective factors that were specific to the file, most notably the professional’s guilty plea.

The Tribunal also notes the importance that had been attributed by the Council to the fact that the lawyer, for over a year, had voluntarily excluded the Program’s application from his everyday practice, despite how many municipalities had specifically asked that it be applied. According to the Disciplinary council, this behavior was reflected and assumed and the lawyer’s refusals to put into application the Program were systematic, all of which constituted important aggravating factors for the file. The Professions Tribunal confirmed that these elements were indeed aggravating factors, as the infraction was not the result of one sole fault, but rather the result of repetitive and voluntary faults, and therefore, the Council had not committed an error of principal in the circumstances.   

In addition, the Professions Tribunal states that because the infraction committed by the professional was serious and was at the very heart of the profession, the imposition of a striking off the roll was merited. The fact that the striking off the roll was for a period of two months, and may be considered severe, did not justify the intervention of the Tribunal. The appeal is dismissed, as the Council did not commit an error of principal and did not impose an unreasonable sanction Dubé Légal inc., disciplinary law lawyers.