Quebec Government Tables Bill to Give Regulatory Bodies Power to Suspend Members Facing Criminal Charges
Quebec’s Charbonneau commission into corruption in the construction industry has revealed numerous failings in the province’s regulatory regime, which the government is attempting to address with new laws. For instance, professional regulatory bodies have found they have little or no power to discipline members (e.g., engineers, lawyers) who have been charged with or have confessed to corruption in relation to construction projects in Quebec. These regulatory bodies have to wait until a disciplinary board (syndic) investigates and the disciplinary committee decides the individuals should be punished.
At the request of several regulatory bodies, including the Quebec Bar Association (the Barreau du Québec), the government has introduced legislation to give regulatory bodies the power to suspend or limit their members’ licences, while an investigation or criminal trial is underway. On November 14, 2013, Bill 62, An Act to amend the Professional Code to permit the immediate provisional suspension or restriction of professional activities, was tabled in the national assembly to provide an additional tool to fulfil the regulatory bodies’ mission of protecting the public.
The Bill would only permit a regulatory body to suspend or limit the professional activities of one of its members if the member is accused of a serious criminal charge, punishable by imprisonment of five years or more. Once a member is accused of such crime, the regulatory body’s syndic could make a written request to the disciplinary committee that suspension or limitation of professional activities be imposed.
The request must be heard and decided by preference after notice is served on the professional member and the Director of Criminal and Penal Prosecutions, or any other authority responsible for the prosecution on which the request is based. The hearing must begin no later than 10 days after service of the request, and a decision must be made no later than 7 days after the hearing. The rules governing the hearing of a complaint apply, with the necessary modifications, to the request.
To grant a request to suspend or limit a professional’s activities, the syndic would have to find a connection between the alleged offences, the practice of the profession and the possible damage to the honour and dignity of the profession, and decide that the order is in the best interest of the public.
An order to suspend or limit a member’s professional activities would become enforceable once it is served on the member.
The syndic would also have to publicly publish a notice of the order.
An order imposing an immediate provisional suspension or restriction of the right to engage in professional activities would remain in force until the earliest of the following occurrences:
- A decision by the prosecutor to discontinue or withdraw proceedings with regard to all charges in the prosecution on which the request was based;
- A judgment of acquittal or a stay of proceedings with regard to all charges in the prosecution on which the request was based;
- A syndic’s decision not to lodge a complaint with the disciplinary council concerning the offence that gave rise to the charges in the prosecution on which the request was based;
- A final, enforceable decision of the disciplinary council or the Professions Tribunal, as applicable, on the request for provisional striking off the roll or immediate provisional restriction of the right to engage in professional activities made under section 130 with regard to the syndic’s complaint concerning the offence that gave rise to the charges in the prosecution on which the request was based;
- The expiry of 120 days from the issue of the order, provided no complaint was lodged by the syndic and no application for the renewal of the order was made during that time with regard to the offence that gave rise to the charges in the prosecution on which the request was based.
Lastly, the syndic would have the ability to ask for a renewal of the order if necessary.
If Bill 62 is passed, it will provide greater disciplinary powers to the 45 professional orders established in Quebec.
Unfortunately, the Bill does not speak of the presumption of innocence or the consequences of such disciplinary measures if a professional member is found to be innocent, for example, the negative impact of such a suspension or limitation on the professional member’s reputation, business and financial affairs. Such disciplinary measures based on unproven accusations have the potential to ruin one’s life.
It may seem undesirable, even distasteful, to permit a person who has been implicated in corruption to continue to act in her or his professional capacity without some sort of censure, and certainly the government and professional regulatory bodies must strike a balance between protecting a professional’s right to due process and protecting the public from corrupt activity. However, the presumption of innocence is central to a functioning democratic justice system. Indeed, without such a presumption, the justice system itself would lack a key protection against internal corruption.
Hopefully, we will see this issue introduced in the debates over Bill 62, and the government will address the presumption of innocence with respect to professionals implicated in corrupt activities in the Bill itself or related regulations.