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Professional Discipline

& Non-Academic Misconduct Investigations

The Allegation

Professionals in various fields, including health, education, engineering, and law, are responsible to their various commissions, colleges or societies to abide by standards of conduct that are set out by regulation. When allegations are brought forward that a member has violated a rule of conduct, the professional may face an investigation and enforcement action brought by the organization of which they are a member. In British Columbia, there is statutory authority for various organizations to be self-regulating, with respect to the rules and regulations of membership. Such organizations include:

  • College of Physicians and Surgeons of British Columbia,
  • College of Pharmacists of British Columbia,
  • College of Psychologists of British Columbia;
  • College of Registered Massage Therapists of British Columbia,
  • Law Society of British Columbia;
  • British Columbia Securities Commission,
  • BC Teacher’s Council

Post-secondary institutions – universities, colleges and technical schools – also have the power to self-regulate the behavior of students and staff under academic and non-academic misconduct policies. For example, under the University of British Columbia’s Sexual Assault and Other Sexual Misconduct Policy, a complaint can be brought against a student or faculty member which can result in termination of employment or expulsion from academic studies.

The Investigation

Professional bodies and post-secondary institutions may investigate complaints alone, or in parallel with police investigators. The rules imposed by the professional body are civil in nature and are markedly different from the laws provided under the Criminal Code and the Charter of Rights and Freedoms. For example, in a criminal investigation, a suspect has the right to remain silent. This is not the case in a professional or student misconduct allegation. To the contrary, a subject of a misconduct complaint has the obligation to cooperate in the investigation at the risk of maintaining their professional credentials or right to continue their studies.

Because on one hand there is an obligation to cooperate and on the other there is the right to remain silent, a person facing a professional misconduct allegation must exercise caution so as to not give up the right against self-incrimination in the criminal law context.

Recent Successes

R. v. M.F. – Surrey Provincial Court

Charge: Health insurance fraud investigation.
Issue: Given our client's civil settlement of the alleged false insurance claims. whether there was any public interest in proceeding with criminal charges.
Result: Mr. Gauthier was able to negotiate an appropriate civil settlement and repayment to the employer. No criminal prosecution.

R. v. V.H. – Port Coquitlam Provincial Court

Charges: Assault (domestic).
Issue: Whether or not it was contrary to the public interest for our client to be sentenced to a conditional discharge.
Result: Mr. Mines was able to steer our client through a course of rehabilitation. The Court granted our client the discharge and placed her on probation. No record of conviction.

R. v. J.M. – Abbotsford Provincial Court

Charge: Health insurance fraud investigation.
Issue: Given our client's civil settlement of the alleged false insurance claims. whether there was any public interest in proceeding with criminal charges.
Result: Mr. Mines was able to negotiate an appropriate civil settlement and repayment to the employer. No criminal prosecution.

R. v. K.D. – Vancouver Provincial Court

Charge: Mischief Under $5000 (reduced to Peace Bond).
Issue: Given our client's background and rehabilitative efforts, whether it was in the oublic interest to proceed with a criminal prosecution.
Result: Mr. Mines was able to persude the criminal charge upon our client entering into a 12 month peace bond. No criminal record.

R. v. N.S. – Vancouver Provincial Court

Charge: Theft under $5000 (shoplifting).
Issue: Given our client's background and remorse, whether it was in the public interest to proceed with a criminal prosecution.
Result: Mr. mines was able to persuade Crown counsel to admit our client into the Alternative Measures program. Upon completion, Crown counsel entered a stay of proceedings, bringing the matter to an end. No criminal conviction.

R. v. N.S. – Vancouver Provincial Court

Charges: Theft Under $5,000 (shoplifting).
Issue: Given our client's background, was it in the public interest to proceed with the criminal prosecution.
Result: Mr. Mines was able to persuade Crown counsel to allow our client into the Alternative Measures Program and, upon our client's completion of the program, Crown enteres a stay of proceedings. No criminal record.

R. v. C.G. – Vancouver Provincial Court

Charges: Fraud (in the range of $50,000).
Issue: Based on information Mr. Gauthier was able to provide to the civil investigators about our client's personal circumstances, whether it was in the public interest to proceed with a criminal prosecution.
Result: Mr. Gauthier was able to settle the matter civilly on our client's behalf. No charges were recommended. No criminal record.

R. v. A.L. – North Vancouver Provincial Court

Charge: Sexual assault.
Issue: Whether there was a substantial likelihood of a conviction.
Result: Mr. Mines was able to steer our client through the police investigation by providing information to police on our client's behalf. Ultimately, Crown counsel decided to not approve any criminal charge. No jail; no criminal record.

R. v. A.Z. – Vancouver Provincial Court

Charge: Assault (domestic).
Issue: Given information we provided to Crown counsel regarding our client's background, the circumstances of the incident and the complainant's wishes, whether there was a public interest in proceeding with the criminal prosecution.
Result: Mr. Gauthier was able to persuade Crown counsel to enter a stay of proceedings, bringing the case to an end.  No criminal record.

R. v. I.R. – Vancouver Provincial Court

Charges: Sexual assault, assault x 2
Issues: Whether a jail sentence was appropriate in all the circumstances, and whether our client should be excused from having to register as a sex offender.
Result: Upon hearing Mr. Johnston’s submissions regarding our client’s personal circumstances, rehabilitative progress, and the unusual nature of the offences, the Court imposed a sentence of probation, rather than the conditional sentence the Crown had sought. For the same reasons, the Court also agreed to excuse our client from the usual requirement of having to register as a sex offender.

R. v. R.A.M. – Vancouver Provincial Court

Charge: Robbery, uttering threats, possessing a weapon for a dangerous purpose
Issues: Whether there was a reasonable chance our client would be convicted at trial, and whether there was public interest in continuing to prosecute our client.
Result: Given Mr. Johnston’s representations on behalf of our client and the unusual circumstances of the offence, the Crown agreed there would be difficulty establishing our client was the one who committed the alleged offences, and that it was not in the public interest to continue prosecuting our client. Stay of proceedings. No criminal record.  

R. v. M.M. – Merritt Provincial Court

Charges: Assault, breach of release order (x3) Issue: Whether there was a reasonable prospect our client could be convicted of all charges at trial, and what the appropriate sentence would be.
Result: Mr. Johnston persuaded the Crown they were unlikely to prove most of the charges at trial given issues with the credibility and reliability of Crown witnesses and the fact our client had a valid defence to one of the charges. Our client pled guilty to one count of breach, which he had been prepared to admit from the outset, and the Crown directed stays of proceedings on all other counts. Given information Mr. Johnston provided about our client’s circumstances at the time of the offences and his rehabilitative efforts since, the Crown also  agreed to support a time-served sentence with no probation, even though our client had a lengthy criminal record and had recently been convicted of several breaches for which he had received far longer jail sentences. No further jail. No probation.
   
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The Defence

Our over 30 years’ experience as defence counsel provides us with the skill and judgement necessary to guide clients through a professional misconduct complaint, whether alone or in conjunction with a criminal investigation. From the complaint, through the investigation, to the hearing, we can provide strategies and advice that will protect your rights and that is aimed at obtaining the best possible solution. Our goal is to help keep our clients working or studying in their chosen field.

Start with a free consultation.

If you are being investigated by police or if you’ve been charged with a criminal or driving offence, don’t face the problem alone. Being accused of an offence is stressful. The prospects of a criminal record or jail sentence can be daunting. Even if you think there is no defence, we may be able to help. To schedule a free initial consultation with one of our Vancouver lawyers, contact us now.

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