Grey Areas

There is general agreement that, even where delay in investigating and prosecuting misconduct allegations does not amount to an abuse of process, delay during the proceeding can have an impact on the appropriate disciplinary sanctions that should be imposed. However, there is less agreement on how that impact should be assessed.

Policy makers have long relied upon briefing notes to assist in making good decisions. Boards, councils and even committees of regulators have often used briefing notes to enable staff and preparatory teams to concisely convey the information that decision-makers need.

The time has come to break away from criminal sentencing concepts when determining the appropriate sanction in a discipline matter. In the October and November issues of Grey Areas, my colleague Natasha Danson discussed how a registrant’s degree of insight should be adopted as the guiding factor in sanction over the perceived remorse, or lack thereof, of a registrant.

In Part 1 of this article, we examined how Canadian courts have approached a registrant’s lack of remorse for (or “acknowledgement” of) allegations when imposing disciplinary sanctions. We posited that the approach has been technical, inconsistent, and difficult to apply. In this article we propose that a “degree of insight” approach can sidestep the issue and bring a principled approach

Despite some strong pronouncements from the courts, ambiguity remains for disciplinary panels considering a lack of “remorse” by a registrant when imposing sanctions.

A recent research paper concludes that even extensive transparency requirements are not enough to ensure that self-regulating professions effectively protect the public from serious safety concerns.