Dutil, Cotnam, Baudouin

Appeal from a judgment of the Superior Court dismissing an application for judicial review of a judgment of the Professions Tribunal upholding a decision on penalty by the disciplinary council of the Collège des médecins du Québec. Allowed.

The dispute concerns the retrospective application of amendments in 2017 to s. 156 of the Professional Code (CQLR, c. C-26) (Prof. C.), which introduced harsher penalties for sexual offences. The amendments came into force after the appellant committed the offence, but before the decisions on his guilt and the penalty were rendered. The disciplinary council found that section 156 of the Professional Code applied immediately and imposed the penalty accordingly. The Superior Court judge found that the standard of review applicable to the issue of the retroactivity of legislative amendments was reasonableness, and that there was no cause to intervene in the decision of the Professions Tribunal, which had upheld the disciplinary council’s decision on the penalty.

The trial judge erred in law by upholding the Tribunal’s conclusions on the retrospective effect of the amendments to s. 156 Prof. C. The judge should have ascertained whether the Tribunal had exercised its appellate functions reasonably, in accordance with the reasonableness standard. The principles of legislative interpretation constituted one of the legal constraints on the Tribunal because of the nature of the issues that were before it.

The starting point of the analysis is the presumption against the retrospectivity or retroactivity of statutes, which applies in this case because of the prejudicial consequences of the amendments to s. 156 Prof. C. on the professional. This presumption may be set aside, however, where it is clear through express language or necessary implication that the legislative intent was for the amendment to have retrospective effect – which is not the case here – under the public protection exception.

According to the analytical framework established in Tran v. Canada (Public Safety and Emergency Preparedness), (S.C. Can., 2017-10-19), 2017 SCC 50, SOQUIJ AZ-51434314, 2017EXP-2911, [2017] 2 S.C.R. 289, the mere fact that public protection constitutes the foundation of disciplinary law is not sufficient to set aside the presumption against the retrospectivity of a legislative amendment that has prejudicial consequences on the persons affected by it. When discerning the temporal scope of an amendment that substantially increases the severity of a disciplinary penalty, the design of the penalty itself must signal that the legislature has weighed the benefits of retrospectivity against its unfairness.

The Tribunal’s reasons do not support the conclusion that it adhered to the Tran framework. Its reasoning, like that of the disciplinary council, is based solely on the protective aspect of the disciplinary legislation. What is more, the Tribunal did not deal with elements that, in its view, suggested that the legislature had in fact weighed the benefits of retrospective application against its prejudicial effects on the professionals subject to it. However, a reading of s. 156 Prof. C., of the 2017 Act amending this provision, and of the parliamentary debates surrounding its enactment reveals nothing to suggest that the legislature weighed the benefits of retrospectivity and the unfairness of the effects. Therefore, the presumption against retrospectivity must apply, such that the penalty must be determined on the basis of s. 156 Prof. C. as it read before the amendments.

Legislation interpreted: s. 156 Prof. C.

Text of the decision: http://citoyens.soquij.qc.ca