The lessons of the Jordan decision and its application in disciplinary law

In a previous article, we provided an introduction to disciplinary law. Disciplinary law borrows certain principles from civil law and from criminal and penal law. That being said, not all principles of criminal and penal law are applicable to disciplinary law.

The Jordan decision

In 2016, an important and now well-known criminal and penal decision was rendered in R. v. Jordan[1] (hereinafter “Jordan”). This decision reaffirms the right of a person charged with an offence to be tried within a reasonable time, a right enshrined in section 11(b) of the Canadian Charter of Rights and Freedoms (hereinafter the “Charter”).

In this decision, the highest court in the land establishes certain parameters for determining whether the time elapsed since the charges were laid is reasonable. Beyond a certain number of months, depending on the type of offence, a presumption that the time elapsed is unreasonable becomes applicable. Beyond such period of time, the person charged may then apply for a stay of proceedings, and it is up to the prosecutor to show that the time elapsed is not unreasonable under the circumstances and is due to exceptional circumstances.

Since this decision was rendered in 2016, many have attempted to invoke it to obtain a stay of proceedings in disciplinary law. Although disciplinary law draws its sources from criminal and penal law and borrows certain principles from it, these two branches of law have many distinctions and are independent.

The decisions rendered when a stay of proceedings is sought in disciplinary law reject the application of the Jordan decision for several reasons.

The application of section 11(b) of the Charter

The first reason why this decision is not applicable follows directly from the language of section 11(b) of the Charter on which the Jordan decision is based.

11. Any person charged with an offence has the right:

b) to be tried within a reasonable time;

It must therefore be kept in mind that only a person charged with an offence benefits from this protection. However, in the context of disciplinary law, the professional is not considered to be a “person charged” because he or she is not subject to the criminal process.[2]

The protection of the Charter

In addition, the Supreme Court has previously held that section 11(b) of the Charter does not apply in “private, domestic or disciplinary matters which are regulatory, protective or corrective and which are primarily intended to maintain discipline, professional integrity and professional standards or to regulate conduct within a limited private sphere of activity.”[3]

By way of illustration, all prosecutions relating to criminal offences under the Criminal Code and quasi-criminal offences under provincial laws are automatically subject to section 11 of the Charter, but not disciplinary offences.

Disciplinary offences are not subject to a statute of limitations

Furthermore, it should be noted that there is no statute of limitations on disciplinary offences, i.e., the remedy cannot be extinguished simply because it is not exercised within a specified lapse of time. However, applying the Jordan decision to the disciplinary process would impose a statute of limitations on this type of offence, which would be contradictory.[4] This type of request can be made only on an exceptional basis.

This lesson was confirmed when it was specified that a stay of proceedings cannot be granted if the professional bases his or her application solely on the Jordan decision.[5]

Conclusion

Although disciplinary law has its origins in criminal and penal law, among other things, and although certain principles of criminal and penal law can be transposed to disciplinary law, we must be careful not to try to apply them all. One cannot apply for a stay of proceedings solely on the basis of the Jordan decision.

That being said, there is a principle of natural justice that everyone has the right to be heard and tried within a reasonable time. However, it must be shown that the professional has suffered a serious, real and substantial injury of such magnitude as to offend the sense of justice and decency, thereby justifying a stay of proceedings.[6] It must therefore be understood that there is no question of applying the presumption drawn from the Jordan decision and that it will be necessary to demonstrate such a serious, real and substantial injury in addition to showing that the professional was not heard and tried in a reasonable time.

Failing to obtain an outright stay of proceedings, the professional may seek a reduced disciplinary penalty by invoking the injury he or she has suffered as a result of the long delay between the occurrence of the alleged facts/the filing of the complaint and the final judgment imposing a disciplinary penalty on him or her.

However, we are of the opinion that the possibility of obtaining a stay of disciplinary proceedings on the grounds of a serious, real and substantial injury suffered by the professional based on the unreasonable delay in being heard and tried will only be granted under exceptional circumstances, as was the case in Landry v. Guimont,[7] where in 2017 the Court of Appeal ordered a stay of proceedings in a disciplinary case involving a lawyer, given that 11 to 13 years had passed between the occurrence of the misconduct and the final judgment rendered by the Court of Appeal putting an end to a long saga. It is important to note that the Jordan decision, rendered in 2016, was not cited by the Court of Appeal in its decision.

The Court of Appeal also reminded us in its decision that [a]s is the case in criminal matters, the drastic remedy of a stay of proceedings is granted only on an exceptional basis when the overall circumstances leave no room for any other remedy.[8]

In conclusion, the Jordan decision had no impact on disciplinary law, unlike in the field of criminal law.