Time Off for Good Behaviour

When discipline proceedings are protracted, what weight should be given on sanction to the registrant behaving professionally while the proceedings are ongoing? That issue took prominence in Rak v. Ontario College of Pharmacists, 2024 ONSC 3783 (CanLII).

The pharmacist admitted, in criminal proceedings, to luring a minor and criminal harassment of another minor. The pharmacist repeatedly breached his bail conditions during the criminal process. In 2014 the pharmacist was disciplined by his regulator for this behaviour. The discipline sanction included a restriction from providing professional services to a person under the age of 18 years. Afterwards, the pharmacist was disciplined again for repeatedly breaching that condition.

On appeal the finding was reduced to the breach of the condition for one patient and the matter was returned to the discipline committee for a different sanction. The committee ordered a four-month suspension, a reprimand, and a more stringent condition than had been ordered previously (no services could be provided for minors). The pharmacist appealed, arguing that insufficient consideration had been given to his not having breached any conditions during the past ten years while the latest proceedings were ongoing.

The Court upheld the sanction. The discipline panel had, in fact, taken into account the pharmacist’s compliance with strict conditions for an extended period of time. The panel viewed this conduct as indicating that the pharmacist was capable of remediation and was no longer ungovernable. However, a significant sanction was still warranted because the pharmacist’s conduct was serious and there was a long history of non-compliance with criminal and regulatory restrictions. The conduct was also aggravated by his attempt to falsify documents and otherwise conceal his conduct.

The Court accepted the panel’s description of the compliance as being the absence of a further aggravating factor rather than a truly mitigating factor. Compliance with restrictions is expected; it is not especially meritorious.

The Court also agreed that letters of reference as to work ethic and quality of service are of little relevance where, as here, the conduct in issue was not about competence.

The Court viewed the previous referral back to the committee to impose a new sanction as a requirement on the committee to “consider the issue of the appropriate penalty afresh.” The committee was not bound by the previous sanction decision and could reasonably impose a more stringent condition than was ordered previously in order to better protect the public.

Good behaviour during a long regulatory process should be considered by a discipline panel when imposing a sanction as it indicates the possibility of remediation. However, it is only one of many relevant considerations and is more appropriately considered the absence of an aggravating factor as compared to a true mitigating factor.

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