Case information

Administrative law — Judicial review — Presumption against retroactivity or retrospectivity — Public protection exception — Whether amendments made to s. 156 of Professional Code, CQLR, c. C-26, on June 8, 2017, concerning determination of penalties for sexual misconduct of professionals in Quebec applied immediately (retrospectively) — Professional Code, CQLR, c. C-26, s. 156.

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The respondent, Dr. Sébastien Paquin, a specialist in family medicine since 2010, practises in the hospital setting. He was the subject of a complaint filed with the Collège des médecins in April 2017 following an exchange of text messages with a patient. The respondent admitted his fault and cooperated during the inquiry. Further to his guilty plea, the respondent was convicted by the Disciplinary Council of the Collège des médecins of the charge under s. 59.1 of the Professional Code (CQLR, c. C-26) of having committed a derogatory act akin to taking advantage of a professional relationship, that is, having sent his patient [TRANSLATION] “inappropriate messages of a sexual nature, even an invitation to engage in sexual activities with him”. After representations were made regarding a penalty, the Council took the matter under advisement. However, in June 2017, which was shortly after the filing of the complaint against the respondent, amendments were made to s. 156 of the Professional Code relating to penalties imposed for any offence of a sexual nature. It turned out that the amendments made the penalties more severe than those previously provided for. In March 2018, the Disciplinary Council of the Collège des médecins concluded that the amendments made to s. 156 of the Professional Code applied retroactively. The respondent was therefore temporarily struck off the roll for 12 months and fined $2,500, whereas his lawyer, relying on previous case law, had suggested a temporary striking off the roll for two months and a fine of $2,500. After agreeing to a temporary striking off the roll for two months and to paying the fine, the respondent was granted a stay for the remainder of the striking-off period, and he filed an appeal with the Professions Tribunal to contest the interpretation adopted regarding the retrospective application of the legislative amendments made to s. 156 of the Professional Code. The Professions Tribunal confirmed the decision on the penalty rendered by the Council on the ground that while striking a professional off the roll constitutes a measure that aims to protect the public, it had to take the amendments to s. 156 of the Professional Code into account. The respondent subsequently filed an application for judicial review with the Superior Court and was granted a stay of the Professions Tribunal’s decision. The Superior Court dismissed the application for judicial review. The Court of Appeal allowed the appeal and the application for judicial review.

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