November 12, 2014

Distinctions between professional regulatory and criminal processes

Administrative Law
Inquiry and Investigations
Professional Regulation

Confusion often arises about the extent to which professional regulatory proceedings are similar to or different from criminal proceedings. While regulatory proceedings may draw on the processes of criminal courts – such as the duty of any regulatory body to disclose all relevant information to a respondent once a citation has issued – the two kinds of processes are more different than alike.

First and foremost, regulatory proceedings are unquestionably “civil” in nature. They do not involve any prospect of imprisonment, but instead involve the right to earn a livelihood, balanced against the demands of public safety. “[138] … In a series of cases beginning with the Supreme Court of Canada’s decision in R. v. Wigglesworth (1987), 45 D.L.R. (4th) 235 at 251-52 (Wigglesworth), courts have held that professional disciplinary proceedings are civil matters of a regulatory nature, not criminal or quasi-criminal matters, and that the consequences of a loss of a job or a professional licence are not “true penal consequences….” Mussani v. College of Physicians and Surgeons of Ontario (2003), 226 D.L.R. (4th) 511 (Ont.Div.Ct.), affirmed (2004), 74 O.R. (3d) 1 (Ont.C.A.).

Secondly, while discipline hearings involve serious matters, they are clearly subject to a civil standard of proof – not proof beyond a reasonable doubt, but rather proof on the balance of probabilities. F.H. V. McDougall (2008), 297 D.L.R. (4th) 193 (S.C.C.) at paragraphs 26 and 40; and also Kaminski v. Association of Professional Engineers and Geoscientists of BC, 2010 BCSC 468 at paragraph 52.

Thirdly, unlike criminal courts, administrative tribunals are also not bound, generally speaking, by court rules of evidence (subject of course to statutory requirements), although they may seek guidance from them. This allows disciplinary hearing committees to hear all relevant information, and give evidence such weight they deem fit. See, for example, Hale v. B.C. (Superintendent of Motor Vehicles), 2004 BCSC 1358 at paragraph 23. A professional disciplinary hearing “is not a criminal hearing; it is an administrative hearing. Admission or proof of the alleged professional misconduct (or incompetence) is not the same as a plea or finding of guilt in a criminal matter. Rather, it is a finding of conduct deserving of sanction or incompetent practice based on administrative principles, including applicable evidentiary rules.” Adams v. Law Society of Alberta, 2000 ABCA 240.

Fourthly, the emphasis of regulatory bodies must on protecting the public interest, and the degree of risk in permitting persons to hold themselves out as authorized to practice his profession. McKee v. College of Psychologists of BC (1994), 116 D.L.R. (4th) 555 (B.C.C.A.). Thus, while criminal sanctions involve factors that relate to an individual, both favourably and unfavourably, regulatory sanctions also address impacts of acts, and remedial measures, on the profession and on the public. Adams v. Law Society of Alberta, 2000 ABCA 240. Adams, cited above.