Canada: Will The Jordan Decision Have An Impact On Disciplinary Law?

Despite the efforts of the legislature and various interveners in the judicial system, major procedural delays are still prevalent in the legal system. The area of disciplinary law is no exception.

In disciplinary matters the legislature has intervened progressively in stipulating the timelines for the preliminary procedural steps in files1, the trial stage2 and drafting the judgment3. While these timelines have been established as guidelines, the intention is to recognize the respondents' interest in having their cases heard and decided upon within a reasonable time.

In July 2016 in the Jordan case4, the Supreme Court of Canada established the procedural delays beyond which the accused is presumed to have been deprived of the right to a fair trial in a reasonable time. The Court created a presumption of unreasonable delay leading to a stay of proceedings where the period between the laying of charges and the conclusion of the trial is more than 18 months, for cases in provincial courts, and more than 30 months for cases before superior courts.

Whereas previously excessive delays could impact the outcome of a case if harm could be proven, this new analytical framework relieves defendants of the burden of having to prove harm.

Can this presumption established by our highest court in criminal and penal matters be transposed to professional disciplinary law?

Recent decisions5 rendered following Jordan have held that the presumption created in that case cannot be applied in disciplinary law, as the respondent before a disciplinary tribunal is not a "person charged with an offence" as contemplated by the Canadian Charter of Rights and Freedoms. Moreover, disciplinary law is separate and distinct from penal law, even though it shares some of the latter's terminology and procedure. Furthermore, disciplinary tribunals have repeatedly cited the dicta of Justice Baudoin of the Quebec Court of Appeal in its 1992 decision in Béliveau v. Comité de discipline du Barreau du Québec6 [TRANSLATION]: 

[D]isciplinary law is a sui generis domain of law and it is wrong to seek at all costs to introduce the methodology, reasoning and principles of penal law into that domain. The hearing of a complaint before a disciplinary council is not a criminal or quasi-criminal proceeding. Nor is a professional fault the equivalent of a criminal offence.

Disciplinary procedure has its own specific rules, derived from both civil law and penal law. However, in disciplinary law the passage of time alone cannot entail a stay of proceedings, as a disciplinary fault is subject to no statute of limitations and thus cannot become prescribed or time-barred. Nevertheless, it has long since been established that disciplinary tribunals must apply the principles of natural justice and have the obligation to act fairly.

In disciplinary law, proof of harm on account of undue delays is required for either a stay of proceedings to be ordered, or a mitigation of the sanction imposed by the tribunal. Also to be considered is which side is responsible for the delays, and whether the respondent has been deprived of the right to present a full and complete defence as a result.

Contrary to what is the case in criminal and penal matters, disciplinary councils tend to mitigate the sanction rather than stay the proceedings, particularly where the unreasonable or excessive delays result from the length of the hearing and subsequent deliberations of the tribunal. The extent to which the sanction is lessened may be influenced by factors such as the seriousness of the infraction from an objective standpoint, and the need to protect the public. Another factor that may be taken into consideration in assessing the overall fairness of the proceedings is the length of time between the facts complained of and the filing of the actual complaint.

In this regard, the recent decision of the Court of Appeal in Landry v. Guimont7 is noteworthy. In that case, rather than returning the file to the disciplinary tribunal for the imposition of the sanction, the Court ordered a stay or proceedings on the basis of the exceptional circumstances of the matter, stating the following in that regard [TRANSLATION]:

... Between 11 and 13 years have elapsed since the commission of the acts complained of, for which the respondent' right to practice was suspended for more than 55 months, a measure that was later overturned by the Professions Tribunal.

[74]  It is therefore appropriate in this case to consider a remedy that will put an end to these singularly unproductive proceedings, which have evolved in a confrontational climate aggravated by the passage of time, and whose very purpose does a disservice to the interests of justice, in addition to using judicial resources ineffectively and to the detriment of other citizens whose access to justice is thereby compromised.

[75] Under the circumstances, I am of the view that a stay of proceedings is the only remedy that will ensure that this intolerable situation will cease.

Given the importance afforded delays by the superior courts, we will have to wait and see whether the response of disciplinary tribunals to Jordan will be sufficient to maintain the confidence of respondents, other professionals and the public and in the professional justice system. The Jordan decision may have some influence on professional law and increase the pressure on disciplinary tribunals to deal more expeditiously with files.

Footnotes

1 Rules of evidence and practice for the conduct of proceedings relating to complaints lodged with the disciplinary councils of professional orders, CQLR c. C-26, r. 8.1

2 Section 139 Professional Code

3 Sections 150 and 154.1 Professional Code

4 R. v. Jordan, 2016 SCC 27

5 Organisme d'autoréglementation du courtage immobilier v. L'Écuyer 2016 CanLII 74017, Organisme d'autoréglementation du courtage immobilier v. Safdar 2016 CanLII 78378, Ordre professionnel des dentistes v. Terjanian 2016 CanLII 71683

6 [1992] R.J.Q. 1822, 1825

7 2017 QCCA 238

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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