There is no consensus on two aspects of imposing a sanction in discipline matters. The first is whether the parties can be asked to make submissions about sanction before any findings of misconduct have been made. The second is whether an absence of remorse should ever be considered an aggravating factor. In Llewellyn v College of Registered Nurses of PEI, 2024 PECA 15 (CanLII), interesting new perspectives are offered on both issues. The case involved allegations that a nurse inappropriately inserting herself in the care of her ill mother and interacting unprofessionally with caregivers.
Because of scheduling issues, the discipline panel asked the parties to make submissions about sanction before it provided its finding on the allegations. Courts have taken differing views on whether this is unfair to the registrant, especially where the registrant is facing multiple allegations. The argument is that it is difficult to make submissions about sanction when the nature and seriousness of the findings are unknown. Also, there is a concern about prejudgment where the request is made before the panel has deliberated on the allegations. However, other courts have accepted the efficiency of receiving all submissions at once. In Llewellyn, the Court said that proceeding with submissions on sanction before the findings had been made removes the opportunity for the registrant to acknowledge acceptance of the finding and express remorse and, is thus, unfair.
Which leads to the second issue. How should an absence of remorse be factored into the sanction decision by the panel? Some courts have said that considering an absence of remorse when it comes time to determine sanction undermines the right of the registrant to defend themselves, including on any appeal, without fear that doing so will result in a harsher outcome. Other courts have indicated that an absence of remorse is not an aggravating factor but amounts to the absence of a mitigating factor that might reduce a sanction that otherwise fits. Yet other courts have said that it may be appropriate to frame the issue as a lack of insight, or as increasing the risk of the conduct recurring, rather than as a lack of remorse. In Llewellyn, the Court said that while disputing the validity of the allegations during the merits phase of the hearing is irrelevant to sanction, once a finding has been made the panel can appropriately consider whether remorse is subsequently expressed.
Llewellyn does not resolve either issue, but it does make the discussion more nuanced.