Alberta’s Court of Appeal appointed a special five-Justice panel to consider important aspects of discipline hearings. In a blockbuster decision, the Court addressed three recurring issues:
1. The standard of proof where there is a credibility contest.
2. Principles for imposing disciplinary sanctions.
3. Criteria for assessing costs that registrants should pay where a finding of misconduct is made.
I will deal with each of these issues in separate blogs.
In Charkhandeh v College of Dental Surgeons of Alberta, 2025 ABCA 258, the Court upheld a finding of professional misconduct by a dentist who engaged in five instances of forced, non-consensual sexual activities, including intercourse, with a colleague. The colleague was in a dependent and vulnerable position. While not an employee of the dentist, it was not unreasonable to call her part of the dentist’s “staff”. An alleged sixth incident was found not to have been established.
The discipline panel revoked the dentist’s registration and imposed the maximum fine of $10,000 on each of the findings. This was despite the dentist’s submissions that there had been no prior discipline findings against him, he had a previously unblemished career, and no similar concerns had arisen in the ten years since the events.
Interestingly, the Court referred to the orders as a “sanction”, not a “penalty” or “sentence”.
The Court identified the purposes of disciplinary sanctions. The primary purpose is to protect the public. Part of this purpose is met by deterring the individual and the profession as a whole from engaging in such misconduct. A secondary purpose is to maintain public confidence in the profession and the regulator, including the integrity of the disciplinary process. In distinguishing disciplinary sanctions from criminal sentencing, the Court said:
While some analogies can be made between criminal sentencing and imposing sanctions in professional disciplinary cases, different objectives are at play. The primary purpose of sanctions in professional disciplinary cases is protection of the public. Denunciation, retribution, and punishment are not primary objectives of the sanctioning process, except to the extent that they serve the objective of protection of the public…. Sanctions will often have a punitive effect, which enhances protection of the public by deterrence and maintenance of professional standards, but that is an effect of the sanction, not a standalone motivation. Further, proportionality, restraint, and enabling rehabilitation are important.
However, the Court expressed concern that the discipline panel did not mention the need for proportionality, saying that the sanction should be:
… proportionate to the gravity of the offence, and the moral culpability of the professional. In accordance with the principle of restraint, the most lenient sanction that would serve the legitimate purposes of the sanctioning process should be selected…. 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 his other patients.
The Court noted that the “sanction did not include any counselling or re-education of the appellant, or any other elements that would promote rehabilitation.”
In the view of the Court, unlike criminal sentencing, a disciplinary sanction does not focus on the impact of the sanction on the individual. However, that consideration should not be entirely ignored. The Court found that, by revoking the dentist’s registration and imposing severe fines, the discipline panel overemphasized denunciation. Given that a decade had passed with no similar reported concerns, “[t]he absence of measurable risk to the public, and the prospects of his rehabilitation (which would also serve the public interest) were underemphasized.”
The Court was of the view that there was a low risk of recurrence. It removed the fines and replaced the revocation with a three-year suspension.
The decision is important because it reinforces that a purpose-driven approach to sanctions is appropriate in the professional discipline context. The criminal-sentencing approach is no longer applicable. The Court even avoided, for the most part, the use of terms such as aggravating and mitigating factors. Rather, the Court discussed the balancing of the competing purposes of disciplinary sanctions. This principled and less technical approach to sanctions will be easier for discipline panels to apply.
However, the Court’s application of the purpose-driven approach to the facts of this case appears to be flawed. Its conclusion that there is a low risk of repetition is debatable given the nature of sexual misconduct (five forced, non-consensual sexual acts conducted over a period of four months), and the emphasis placed on the lack of subsequent reports of similar conduct (which the court itself acknowledges is often not reported promptly or at all). The relevance of a prior unblemished record for this type of misconduct is also dubious. Despite making references to remediation and rehabilitation, the Court did not impose any counselling, education, or medical assessments as part of its order. One wonders how the public can ever have confidence in a regulatory system that permits a dentist who engages in repetitive forced, non-consensual sexual activities with a vulnerable individual to resume practice after a suspension without any such safeguards.
It is also unhelpful that the Court did not address how the discipline panel should consider the dentist’s degree of insight given his continuing insistence that the sexual interactions were consensual.
To some extent, these concerns illustrate the enormous challenge discipline panels have in selecting an appropriate mix of sanctions, but at least the purpose-driven approach provides an enhanced framework for making these difficult decisions.
