SML’s Grey Areas newsletter has been in publication since July 1992 and discusses the latest developments in professional regulation. New issues are published monthly – subscribe below to learn more about recent studies, case law and legislative updates in the regulatory world. Explore our catalogue below.
Issues published before 2020 can be found on CanLII.
Hearing panels often make credibility assessments. Many times, the finding is based on the most reliable evidence even though no witness was “lying”. Events might not have been observed closely. Memories might have faded. Motivation might have tainted the witness’ recollection. However, sometimes one of the witnesses is simply not being candid.
From a public policy perspective, there is little consensus on how regulators of professions and law enforcement agencies should coordinate their efforts when a registrant is suspected of committing a crime. Despite some media articles in the past (e.g., related to lawyers and physicians), few regulators even have a published policy on the topic. The policies that do exist tend
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