Steinecke Maciura LeBlanc Barristers & Solicitors


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	Formulating Sanctions
	by Richard Steinecke
	April 2006 - No. 98

	Formulating Sanctions Coming up with the appropriate penalty (often called orders or sanctions to avoid the language from criminal proceedings) at a discipline hearing is challenging. Tribunals are told that a sanction is not a punishment and is not designed to exact revenge. Rather, such orders are intended to be protective and corrective. An appropriate and effective sanction will speak to the public (including the complainant), the profession (including deterring practitioners from similar conduct) and the practitioner being sanctioned. In the latter case the practitioner is to be deterred from repeating the conduct and provided with the tools to prevent its reoccurrence. The best way to determine what sanction to impose is to follow the following seven step process. 1. Find the Appropriate Range of Sanctions for the Conduct Most types of misconduct have been the subject of previous sanction. Finding how somewhat similar cases have been treated in the past is the starting point for the discussion. Usually there will have been a range of sanctions imposed. For example, verbal rudeness to a client has resulted in everything from a simple reprimand to a lengthy suspension, depending on the circumstances. This exercise requires a careful appreciation of the nature of the misconduct. What was actually done? Was there touching, or just words? Were the words simply insensitive, were they abusive? Was there a sexual or racial undertone? Tribunals will usually learn of the range from the parties. A tribunal generally does not do its own research. The best cases, obviously, are from the past decisions of the tribunal itself. However, if there are none or if more are needed to give a good sense of the true range of sanction, cases from other tribunals can be very useful. Cases that have been upheld on appeal are particularly useful. 2. Consider the Aggravating Factors The tribunal should then consider the factors that tend to put the case higher up on the range. Often these factors include the following: · the seriousness of the conduct · whether dishonesty or a breach of trust was involved · whether the conduct was repeated over time · the potential harm that can result from such behaviour · if discredit has been brought on the profession · if the practitioner has had a previous finding (particularly if it was recent or similar in nature) and · the extent of disregard for the professional obligations demonstrated by the conduct. 3. Consider the Mitigating Factors Next the tribunal should look at the factors that would tend to place the case lower down on the range, including the following: · contributing circumstances to the conduct (e.g., illness, personal circumstances, economic pressures) · an honest motivation (e.g., succumbing to a desire to be helpful, even when inappropriate) · the brief duration of the conduct · where the practitioner recognized his or her error before being caught (perhaps even reporting himself or herself to the regulator) · evidence of generally good character · demonstration of a high degree of commitment to the profession · the ability of the practitioner to make a contribution to the public and the profession in the future · if restitution was made or is being offered · voluntary rehabilitation already undertaken · if a sanction will have an unusually onerous impact on the practitioner · if the practitioner has already suffered significant consequences · where there have been no previous findings against the practitioner · an early admission of wrongdoing by the practitioner and · remorse by the practitioner. 4. Consider the Submissions of the Parties Usually the tribunal will stay within the range submitted by the parties. This principle applies even if the actual range from previous cases is broader than the range submitted by the parties. If the prosecution asks for a six month suspension and the defence a two month suspension, the tribunal should not go outside of that range unless there are exceptional circumstances. (The implication of this point where there is a joint submission is obvious.) If the tribunal is considering going outside of the range, it would notify the parties of its inclination and give them a further opportunity to make submissions. 5. Place the Case at the Proper Point Within the Range The tribunal would then balance the above considerations and come up with the appropriate point within the range for this case. Normally the tribunal would not put too fine a point on it. Basically, does this case fall within the lower, middle or upper end of the range? 6. Formulate a Precise and Creative Mix of Sanctions Most discipline tribunals today have many different types of sanctions that they can impose. Choose the types that best achieve the goals of each unique case. Deterrence components would include suspensions and fines. In order to send a message, consider reprimanding the individual practitioner and publication of the incident to the profession. To foster rehabilitation, require courses, mentoring by a peer, self-study or the evaluation of the practitioner’s practice. To emphasize public protection, impose monitoring, supervision, monthly self-reports or ongoing restrictions on the practitioner’s practice. Many tribunals are becoming increasingly innovative in mixing and matching available sanctions. 7. Prepare Good Reasons The decision on sanction requires superb reasons. The reasons should explain to the practitioner, the profession, the public and the appellate court why the sanction was chosen. Not only does this make the decision more satisfactory and defensible, it achieves other important goals. Good reasons ensure that the decision is a sound one in the first place (if you cannot explain it, it probably was a bad decision). Good reasons educate the readers about the profession and its regulation. Good reasons ensure that when a future tribunal considers the reasons when determining the range of sanctions in a future case the precedent is given appropriate consideration. Failing to describe the nature of the misconduct fully and accurately and omitting to give the aggravating and mitigating factors means that the decision will be misinterpreted. Taking this seven step approach to formulating a discipline sanction in a particular case will promote wise, defensible, effective and understood orders.



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