Sanction Principles in Professional Regulatory Proceedings
Join our email list today to receive alerts, articles, invitations to events and more!
4 min read
Overview
In light of the Alberta Court of Appeal’s recent comments about sanctions in Charkhandeh v College of Dental Surgeons of Alberta, this article offers a refresher on major concepts in sanctioning and how to approach them.
| Term | What Is It? | Our Thoughts! |
|---|---|---|
| Proportionality | Proportionality was deemed by the Alberta Court of Appeal in Charkhandeh as "fundamental” to determining a fit sanction. | Although professional regulatory law is distinct from the criminal law, both require that sanctions or sentences be proportionate to the gravity of the offence and the degree of responsibility of the offender.[2] |
| Parity | Parity means achieving consistency with other, similar cases. It calls for an assessment of the similarity of the conduct. Although sanction proceedings are highly individualized, there is a long-standing emphasis on other cases.[3] By ensuring the sanction is similar to other cases, it ensures that professionals are treated fairly and that the law develops consistently. | It may seem that proportionality could conflict with parity, but they are not at odds. Imposing the same sanction in unlike cases furthers neither principle. The Supreme Court of Canada has commented that the consistent application of proportionality will result in parity. This is because parity, as an expression of proportionality, will assist decision-makers to hone in and determine a proportionate sanction.[4] |
| Denunciation | Denunciation is public condemnation. It means that the sanction says, to the public and profession, that “this was wrong, and we condemn it.” It is an expression of disapproval or criticism of the conduct. | Denunciation should not outweigh the primary considerations of public protection. Certain conduct, but all conduct, merits denunciation. Where appropriate and applicable, denunciation can serve the objection of protection of the public. |
| Deterrence | There are two forms of deterrence: specific deterrence (discouraging the individual from reoffending) and general deterrence (discouraging others in the profession from engaging in the conduct). At its core, deterrence is about discouraging wrongdoing in the future. In the professional regulatory context, a reprimand is a common way of achieving both specific and general deterrence.[5] Other punitive sanctions like suspensions or fines also serve as deterrents. | Deterrence that flows from punitive measures is not the standalone motivation of sanctioning, but may be the practical effect. Care should be taken to avoid imposing disproportionately severe sanctions to achieve deterrence. Multiple punitive sanctions likely stop serving a genuine deterrent effect. Denunciation and deterrence are different. Denunciation focuses on condemning the past conduct while deterrence focuses on shaping future conduct. |
| Remediation or Rehabilitation | Remediation or rehabilitation means taking steps to correct the professional’s knowledge or practice, resolve the harm that may have occurred, and to ensure the conduct does not reoccur. The focus is on changing their knowledge or practice to meet the profession’s expectations. It is forward-thinking. | In Charkhandeh, the Alberta Court of Appeal gave significant weight to rehabilitation when determining that a suspension would be a proportionate sanction instead of cancellation. Where there is no measurable risk to the public, a sanction should not be so onerous to preclude rehabilitation. |
| Restraint | Restraint means arriving at the most lenient sanction possible that would achieve the overarching goal of protection of the public. | Applying restraint generally avoids sanctions that are symbolic punishment. As demonstrated in Charkhandeh, restraint is particularly important when considering cancellation or permanent loss of one’s ability to practice their profession.[6] Restraint requires considering if any lesser sanction would adequately achieve public protection.[7] |
| Moral Culpability | Moral culpability means “blameworthiness”. It is tied to the professional’s state of mind. | Blameworthiness is not solely about the severity of the conduct or the harm that results. Blending these things could result in disproportionate sanctions. Blameworthiness may vary depending on whether the conduct was careless, based on a lack of knowledge, a one-time error, deliberate, dishonest or repeated. The wording of an allegation may be relevant if it includes an element of the professional’s intent or knowledge. [9] |
Arriving at an appropriate sanction is more of an art than a science. The overarching purpose of any sanction is the protection of the public. Regulators must balance multiple factors and aim for fair, fit and principled sanctions. Written reasons should reflect how a sanction is connected to public protection.[10]
It cannot be forgotten that the professional's livelihood may be at stake. Charkhandeh offers a reminder that sanctioning is critical to the work that regulators do, but care must be taken to avoid unnecessarily punitive sanctions in order to maintain public confidence in the integrity of the profession.[11]
Field Law is happy to assist with sanctioning in professional regulatory proceedings. Regulators with questions can contact Vita Wensel, Gregory Sim, or any member of Field Law’s Professional Regulatory Group.
[1] Charkhandeh v College of Dental Surgeons of Alberta, 2025 ABCA 258 at para 89
[2] R. v. Friesen, 2020 SCC 9, at para. 30
[3] Jaswal v. Medical Board (Nfld.), 1996 CanLII 11630 (NL SC)
[4] R v Parranto, 2021 SCC 46 at para 11
[5]Law Society of Alberta v King, 2010 ABLS 9 at para 79
[6]Charkhandeh at para 95
[7] This analysis is focused on discretionary orders of cancellation, not mandatory orders of cancellation.
[8] Alberta Health Services v Bhanji¸ 2017 ABCA 126 at para 71
[9] Chartered Professional Accountants of Alberta (Complaints Inquiry Committee) v Mathison, 2024 ABCA 33 at para 47
[10]Al-Ghamdi v College of Physicians and Surgeons of Alberta, 2020 ABCA 71 at para 43
[11]Charkhandeh at para 89
