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Sanctions: Guiding Principles
In Charkhandeh v College of Dental Surgeons of Alberta, a panel of five Justices of the Alberta Court of Appeal considered an appeal arising from a decision of the Appeal Panel of the College of Dental Surgeons of Alberta regarding allegations of sexual misconduct. The appeal was of the sanctions and costs order made against him. Most of the analysis of this decision has focused on the Court’s rebalancing of the framework for making costs awards in professional disciplinary matters. However, the Court also made important comments regarding the principles to be addressed when determining an appropriate sanction.
The Court noted that a sanction must be proportionate to the gravity of the offence. It stated “where there is no measurable risk to the public, the sanction should also not be so onerous as to preclude rehabilitation of the professional or unnecessarily prevent a trained professional from providing a valuable service to the public, including other patients.” The Court noted that the sanction did not include any rehabilitative requirements, such as courses or additional education, nor did it properly consider his previous unblemished practice before and after the events in question. The Court noted that the Hearing Tribunal ought to have considered whether a lesser sanction would have had the same denunciation, deterrence and protection of the reputation of the profession.
This decision serves as a reminder to decision makers to ensure that once the principal objective of protecting the public is accomplished, the effect on the professional from a sanction order must be meaningfully considered and the sanction must be proportional.
our two cents for free
Once a decision maker has gone through the exercise of considering what sanction is appropriate, one exercise would be to consider whether there are other sanction orders that might accomplish the same in terms of denunciation and protection of the public, but have a lesser impact on the member or might further rehabilitation of that member. It is also important to be able to articulate good reasons for the decision to impose a particular sanction, rather than a more or less onerous one.
question
Are there sanctions that could have a lesser impact on the professional and still serve the objectives of protection of the public, individual and professional wide denunciation and rehabilitation of the professional? If not, why? If you cannot articulate the reasons why not, then it might be good to revisit what sanctions are proposed to be applied.
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