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	Discipline Penalties
	by Richard Steinecke
	March 2006 - No. 97

	One of the more difficult decisions made by professional regulators is imposing a penalty in discipline cases. (Many regulators use the word “sanction” or “order” to distance discipline from the criminal process.) It is very difficult for discipline committees to assess what sanction is appropriate in a particular case. Two recent decisions of the Ontario Divisional Court have demonstrated a deference to discipline orders imposed by tribunals, at least where the tribunal gives good reasons. The first case, Buckle v. Ontario Provincial Police, 2006 CanLII 3963 (ON S.C.D.C.). It related to the misappropriation of approximately $4,000 in several transactions over the course of several months. The tribunal concluded that Buckle’s actions were not spontaneous, but rather were protracted, deliberately deceptive and premeditated. The tribunal concluded in the circumstances that the appropriate sanction should be dismissal forthwith. Buckle appealed the sanction as being excessive and inconsistent with other decisions. The Divisional Court found that the tribunal considered the issue of consistency with other decisions, had distinguished some of the differences between Buckle’s case and a somewhat similar case where a lesser sanction was ordered and had reviewed the range of sanctions imposed in cases with similar conduct. The court stated as follows: In our view, dismissal forthwith was clearly within a range of available penalties…. It is generally accepted that an employer is entitled to dismiss an employee for cause, in this case, fraudulent activity. The cases involving police demonstrate over the years that dismissal is, and can be an appropriate disposition in cases involving theft or fraud. As … noted, the Delano case illustrates the view that police officers should be held to a higher standard than members of the public. The court also considered the deference that ought to be applied to sanctions imposed by professional regulatory bodies: Our function on appeal is not to second-guess the [tribunal]. While we might have decided otherwise, that is not the test. The test is whether the [tribunal] fairly and impartially applied appropriate principles. In the case before us, the [tribunal] identified all relevant factors in considering sentence…. We find no unreasonableness … and the appeal is dismissed. It appears that on these sorts of issues, the recent pronouncements of the courts that deference should be given is in fact being applied. Ten years ago the court might well have intervened because the sanction involved dismissal. However, the key is for the tribunal to ensure that there are good reasons explaining why the sanction was imposed and responding to the arguments of the practitioner facing discipline. A copy of the Buckle case can be found at: www.canlii.org/on/cas/onscdc/2006/2006onscdc10018.html The second recent decision, released earlier this month, is Smith v. College of Physicians and Surgeons of Ontario, 2006 CanLII 7282 (ON S.C.D.C.). The allegations involved sexual abuse of vulnerable patients many years ago (before the mandatory sanction of revocation was required). A significant part of the case dealt with the admission of similar fact evidence. Two additional patients of Dr. Smith came forward as a result of the publicity about the hearing to state that they too had been abused by him in a similar manner. The court reviewed in detail the test to be applied in similar fact cases and concluded as follows: In our view, the similar fact evidence was prima facie inadmissible. However, counsel for the College discharged the onus on the prosecution of establishing, on a balance of probabilities, that the probative value of the similar fact evidence outweighed its prejudicial effect. The Committee so found and admitted the evidence. In our view, the Committee’s decision to admit this evidence and the use it made of the evidence gives us no basis to intervene. On the issue of sanction, the tribunal imposed an order revoking Dr. Smith’s registration. There were a number of concerns about the sanction. For example, the tribunal commented on Dr. Smith’s attitude to the allegations. Normally, how a member conducts his or her defence should not be held against him or her on sanctioning. However, the court accepted the following reasoning of the tribunal: The Committee recognizes that Dr. Smith was fully entitled to deny the allegations and that this cannot be held against him when considering penalty. The Committee, however, noted the lack of insight demonstrated by Dr. Smith. Although he admitted to some personal disclosures and touching of a minor and reassuring nature, he did not recognize that these could even be viewed as boundary violations. In fact, he was indignant that his conduct should be represented as unprofessional in any way. The Committee concluded that Dr. Smith simply does not accept that boundaries in medical practice apply to him and that this would present a significant impediment to any successful rehabilitation. The court also accepted the Committee’s use of similar fact evidence on the issue of sanction. Ordinarily, the sanction should only relate to the allegations in the notice of hearing. The court stated as follows: The Committee found that the Appellant, a medical doctor who has taken the Hippocratic Oath and promised to help his patients, committed grave and predatory acts of sexual impropriety, including oral sex and sexual intercourse, and engaged in a pattern of serious boundary violations with three (3) vulnerable former female psychotherapy patients. He also engaged in similar conduct with the two (2) former female psychotherapy patients who gave similar fact evidence. Each one of these female patients was vulnerable and the Appellant knew it. Instead of treating these patients, he preyed on them. Finally, there was concern that the sanction for conduct that occurred in the 1970’s was based on 21st century sensitivities. It is, of course, unfair to punish a person by a standard that did not exist at the time that the conduct occurred. The court responded as follows: In our view, the penalty was reasonable when it was imposed on March 22, 2004, the penalty would be reasonable if imposed today and the penalty would have been reasonable if imposed in 1976 or on any date between 1976 and today. A copy of the Smith case can be found at: www.canlii.org/on/cas/onscdc/2006/2006onscdc10040.html In the next issue of Grey Areas we will discuss an approach to sanctioning that discipline tribunals should use in order to reach defensible decisions.



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