Understanding the Prohibition of Accumulating Sanctions: A Landmark Decision in Quebec

This is because beyond penal and criminal sanctions, there are also so-called “administrative” sanctions, which can take several forms – monetary, disciplinary, regulatory, to name just a few. While penal and criminal procedures aim to promote public order, administrative procedures mainly aim to promote the observance of rules of conduct in more specific areas, for example professional areas. This is why courts consider criminal charges, in theory, to carry greater stigma than administrative proceedings. We say “in theory”. In practice, although only criminal offenses give rise to a criminal record, more and more regulators publish administrative sanctions in registers accessible online.

The honorable Clément Samson, judge of the Superior Court of Quebec, answers these questions in the affirmative in Lavoie c. Financial Markets Authority[1].

The case concerns a mortgage broker who had already been sanctioned by the Disciplinary Committee of the Organisme d’autoréglementation du courtageimmobilier du Québec (“OACIQ”) for breaches of professional standards, including those relating to property conflicts. interests and misleading advertising. At the end of its procedures, the OACIQ imposed financial sanctions on Lavoie as well as a suspension of his mortgage broker’s license, sanctions which Lavoie paid.

However, the actions criticized by Lavoie before the OACIQ Disciplinary Committee resurfaced when Lavoie presented a request to the Financial Markets Authority (“AMF”) to renew his broker’s license. After a long waiting period, the AMF renewed the permit, while attaching conditions and restrictions on the basis of the same breaches that had been the subject of the OACIQ procedures and sanctions.

Lavoie challenged what he considered to be a prohibited double sanction before the Superior Court of Quebec. He argued that he had already been punished for his actions and that it was unfair to punish him again. He invoked the Quebec Charter’s prohibition against the accumulation of sanctions, even if this protection is traditionally applied to the accumulation of penal and criminal procedures.

In his decision, Judge Samson first notes that the Quebec Charter, contrary to the Canadian Charter of Rights and Freedoms, does not limit the prohibition of the accumulation of sanctions to the criminal domain. On the contrary, he notes, the terms used by the Quebec Charter are broader and, therefore, also include sanctions of an administrative nature, such as disciplinary sanctions. He therefore concludes that the Quebec Charter can also, in certain cases, prohibit the accumulation of sanctions outside the criminal context.

The sanctions must still be of the same nature and aim for the same objectives. In this case, Judge Samson considers that the OACIQ and the AMF both pursued the same objective through their respective sanctions, namely the protection of the public. It was therefore unreasonable for the AMF to once again sanction a broker for breaches for which Lavoie had already been sanctioned by the OACIQ.

This decision is the first, to our knowledge, which applies the ban on the accumulation of sanctions in the administrative field. The implications of the decision are major, so much so that the AMF requested and obtained permission to appeal to the Quebec Court of Appeal. If the decision were upheld on appeal, it could encourage regulators to coordinate more in order to avoid a repeat of the situation in the Lavoie affair.

By M^e Julie-Martine Loranger, Ad.E., Emeritus lawyer, and Me Gabriel Querry, partners at McCarthy Tétrault, with the collaboration of François Lalande, law student at McCarthy Tétrault

This article does not constitute legal advice.

[1] 2023 QCCS 1222.