While none of us plans to ever be charged with a criminal offence at any point in our lives, things happen. Being subject to criminal investigation and charge, even if we didn't do it, is a price we all pay for living in a society under the rule of law.
If you're a regulated professional, you risk a double whammy from a criminal charge. You could be prosecuted and convicted or acquitted first by the criminal justice system, on a standard of proof beyond a reasonable doubt, and then possibly hit again with professional misconduct charges on identical facts from your professional regulator, where the much lower standard of proof is on a balance of probabilities. So what should you do as a professional facing criminal charges?
1. Consider if you have a positive obligation to report the charge(s) to your regulator
You may or may not have to report a charge to your regulator. Or you may only need to report it during your annual report filing. Law enforcement professionals likely have the highest duty of immediately informing their superior officer of a charge. For other professionals, if a charge is very serious the police or prosecution might directly inform your professional regulator, or there might be a complaint by a member of the public lodged with the regulator at the same time as a criminal complaint is filed with the police.
2. Attempt to convince your regulator to place professional misconduct proceedings on hold pending outcome of the criminal proceedings
Professionals have much more limited rights before their professional regulators than they do before the criminal courts. They may not have a right to remain silent. Therefore you don't want to be put in the position of having to admit or deny certain things to your regulator, and risk those statements being used against you in criminal proceedings.
Regulators might be open to putting their administrative proceedings on hold, as a criminal acquittal or conviction could be highly influential on the outcome of discipline proceedings. But if criminal proceedings drag for possibly many years through a preliminary inquiry, a trial, and even appeals, regulators may lose their patience. Or may have had no patience to start with.
Unfortunately the caselaw does not support an absolute right of professionals to stall administrative proceedings in favour of criminal proceeding. So if a regulator insists on pushing forward against you, you might be left with insisting on procedural protections being put in place to limit the risk of the regulatory proceedings having an adverse impact on the criminal proceedings.
3. Ask for an in camera proceeding and sealing order on results
If your professional regulator won't put its proceedings on hold, ask that the regulatory misconduct proceedings be held in camera (behind closed doors) and that the results be sealed until the criminal charges have been dealt. with. While regulators are increasingly keen on public discipline proceedings and publication of results, so that they appear to be transparent in their regulation of professionals, they may need to be convinced that being completely transparent at the same time criminal proceedings are pending on similar facts could prejudice your fair criminal fair trial rights, especially if you have the right to a jury trial.
So regulators should make a choice: (a) put off administrative proceedings until after the completion of criminal proceedings, (b) or protect the results of the administrative proceedings pending the outcome of the criminal process. Doing neither risks the regulator's reputation itself being brought into disrepute for potentially wrecking criminal proceedings that are being pursued at great public expense.
4. Retain a lawyer(s) to deal with both your criminal charge(s) and professional misconduct proceedings
You might be able to find a lawyer to represent you on both your criminal charges and misconduct proceedings. Or you might need different lawyers. But do make sure you have representation on both.
I've seen many professionals retain competent criminal defence counsel to assist with criminal charges, and secure a good outcome in criminal proceedings, but then try to tough out related professional discipline proceedings by themselves, leading to very poor outcomes. Some believe that if they beat the criminal charges, they'll be in the clear on the professional discipline allegations. Being wrong on that point could cost you your professional right to practice. You need legal counsel to help you with your discipline proceedings just as much as you do for any criminal charge.
While finding one lawyer to help you with both the criminal and professional conduct process might be ideal, having two lawyers won't necessarily double your costs, as the processes being following - one very formal before a criminal court with criminal judges, and the other somewhat informal before an administrative tribunal staffed by peers - are quite different, even if they are based on similar facts. You need counsel who best understand the respective processes, and who can get the best results possible for you out of those processes.
Gordon S. Campbell practices both professional conduct defence and criminal defence law for professionals throughout Canada. Learn more about his respective practices at proconductlaw.com and defenceeast.com.