On June 8, 2017 some significant amendments to the Professional Code (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 interpretation. 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 consent. 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 59.1.
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 services. 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 sufficient.
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 $2,500.
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 Paquin, Cordoba and Bédard, 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 itself.
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 appealed.
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).
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 training, particularly in order to overcome prejudices in sexual matters that are omnipresent in our society. Are you in compliance with that obligation?