Canada: Section 59.1 Of The Professional Code: Stricter Sanctions And Management Of Proceedings

On June 8, 2017 some significant amendments to the Professional Code1 (the "Code") came into force. Among them were amendments to section 156 increasing the severity of penalties for offences of a sexual nature targeted by section 59.1 of the Code or similar provisions in the various codes of ethics of Quebec's professional orders. The primary purpose of these amendments is to sanction sexual misconduct and restore public confidence in professional orders and professionals themselves.

Scope of section 59.1

While drafted in fairly broad terms, section 59.1 of the Code does have some limits. It is aimed at situations where a professional has committed an act derogatory to the dignity of the profession vis-à-vis "a person to whom he is providing services". The person in question here corresponds to a client or even a secondary client. The case law recognizes that the concept of a client must be given a broad interpretation2. In this context, "secondary client" includes the legal representative of a minor child or of a person of full age who is incapable of giving consent3. According to our interpretation of section 59.1, a professional's colleagues or assistants are not necessarily individuals to whom the professional provides services. However, nothing prevents such situations from being covered by section 59.2 of the Code. The relationship of authority may vary and thus influence the analysis pursuant to section 59.14.

As for the time limitation inherent in this provision, the end of a professional relationship does not always correspond to the moment when professional services cease to be rendered, as the relationship can outlive the cessation of provision of services5. The balance of power in favour of the professional can extend the duration of the relationship of authority. The case law recognizes however that a waiting period of two years before entering into a sexual relationship with a patient and/or client is sufficient6.

With respect to the "taking advantage" of a person referred to in section 59.1, establishing this does not require proof of mens rea or violent language or actions.

Recent amendments to the Professional Code

A disciplinary council that finds a professional guilty of an offence of a sexual nature contemplated by section 59.1 of the Code or a similar provision in the code of ethics applicable to that professional must, pursuant to section 156 of the Code, strike him or her off the roll for at least five years and impose a minimum fine of $2,5007.

Section 156 reverses the burden of proof for the professional, who must now convince the disciplinary council that striking him or her off the roll for a shorter period is justified under the circumstances.

Getting struck off the roll for five years applies to any offence contemplated by section 59.1. However, the range of situations, language or actions covered by this provision necessarily entails a personalized analysis. In this regard we believe that past cases are likely to be applied only in accordance with the specific facts of a matter.

For example, sexually suggestive language or the development of a romantic relationship between a professional and his or her patient or client should not be sanctioned in the same way as an instance of aggression. In the recent cases of Paquin8, Cordoba9 and Bédard10, the professionals concerned were struck off the roll for periods of less than five years for offences ranging from using sexually suggestive language with a patient to having sexual relations with one.

When imposing the penalty, the disciplinary council must take into account several factors, namely: the seriousness of the facts of which the professional was found guilty; the conduct of the professional during the syndic's inquiry and, if applicable, during the processing of the complaint; the measures taken by the professional to facilitate his or her reintegration into the practice of the profession; how the offence is related to what characterizes the practice of the profession, and the impact of the offence on public trust in the order's members and in the profession itself11.

Getting struck off the roll for a minimum of five years is far from inconsequential for a professional. Any professional struck off the roll for contravening section 59.1 of the Code or for similar conduct proscribed by the code of ethics applicable to the members of his or her professional order must apply to the disciplinary council for readmission. The council will then make a recommendation on readmission – favorable or unfavorable – to the order's board of directors. Its recommendation is final and cannot be appealed12

Tips and advice

An offence of a sexual nature is a highly singular one, and managing files of this nature requires competence, rigour and the ability to listen on the part of the syndic and the disciplinary council.

In closing, here are some tips for managing cases of this nature:

  • offer the presumed victim the opportunity to be accompanied during the inquiry;
  • ensure meetings are held in a neutral setting;
  • implement privacy protection measures (e.g. screens, videoconferencing)13.

The syndic must however be prepared for a request by the respondent for a suspension of the disciplinary proceedings in order to protect his or her right against self-incrimination, depending on the circumstances.

If you are a syndic, a member or the chair of a disciplinary council, you are obliged by the Code to undergo training14, particularly in order to overcome prejudices in sexual matters that are omnipresent in our society15. Are you in compliance with that obligation?

Footnotes

1 Act to amend various legislation mainly with respect to admission to professions and the governance of the professional system, Bill 98

2 Psychologues (Ordre professionnel des) v. Lemieux, 2016 CanLII 82023 (QC OPQ).

3 See in particular Laprise v. Optométristes, 2004 QCTP 9; Psychologues (Ordre professionnel des) v. Lemieux, 2016 CanLII 82023 (QC OPQ)

4 See in this regard Architectes (Ordre professionnel des)   v. Ruest,  2011 CanLII 97300 (QC OARQ)

5 Lambert v. Infirmières et infirmiers (Ordre professionnel des), [1998] D.D.O.P. 263 (T.P.)

6 Cadrin v. Psychologues (Ordre professionnel des), 1997 CanLII 17354 (QC TP)

7 Professional Code, CQLR c. C.-26, s. 156 para. 2. Formerly, section 156 provided for mandatory striking off the roll on a temporary basis but without any prescribed minimum period, and a minimum fine of $1,000 and a maximum of $12,500 for any professional having contravened section 59.1 of the Code.

8 Médecins (Ordre professionnel des) v. Paquin, 2018 CanLII 13623 (QC CDCM), In Paquin v. Médecins (Ordre professionnel des), 2018 QCTP 41 the Professions Tribunal had authorized a stay of execution of the penalty.

9 Médecins (Ordre professionnel des) v. Cordoba, 2018 CanLII 30382 (QC CDCM)

10 Pharmaciens (Ordre professionnel des) v. Bédard, 2018 CanLII 72169 (QC CDOPQ)

11 Professional Code, s. 156

12 Professional Code, ss. 164 and following, ss. 182.1 and following

13 See in this regard: Travailleurs sociaux et thérapeutes conjugaux et familiaux (Ordre professionnel des) v. Laprise, 2017 CanLII 9753 (QC OTSTCFQ).

14 Professional Code, ss. 115.7 para. 6, 117, 121.0.1, 123.3

15 See in particular: R. v. Ewanchuk, [1999] 1 S.C.R.  330; R. v. J.F., 2018 QCCA 986; Robbins v. R., 2018 QCCA 1181.

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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