Professionally Speaking

Freedom of Expression and Professional Regulation in Canada

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The complaint against Amy Hamm before the B.C. College of Nurses and Nurse Midwives and the more recent action against Jordan Peterson by the College of Psychologists of Ontario have put a spotlight on the power of professional regulators to control what their members say in public. The hearing of the complaint against Amy Hamm bas taken eleven days and is currently adjourned. The complaint against Jordan Peterson have not proceeded beyond the initial stage. Since both complaints are ongoing, I will not discuss them in detail but will provide an overview of the law of professional regulation.

Professional Regulation in Canada

Regulation of professionals is a provincial responsibility so each province has its own legislation and regulatory bodies. There are two categories of regulated profession. In activity protection regulation, there are certain activities which only a licensed member of the profession can perform. For example, only a lawyer may represent a client in  the higher courts and only a doctor may perform surgery. In reserved title regulation, anyone can provide professional services but only members of the regulatory college may use a specific title. For example, anyone can provide accounting services but only members in good standing of a provincial CPA association may use the title Chartered Professional Accountant.

There is some inconsistency between provinces on which professions are regulated. For example, the practice of Psychology is regulated in all provinces. However, in most provinces it is possible to practice as a counsellor or psychotherapist without a licence. Ontario has a reserved title of Psychotherapist, Quebec has activity protection regulation for counsellors and Brunswick, Nova Scotia and Prince Edward Island have a reserved title profession of Counselling Therapist.

In addition to professional regulators, there are two other types of organizations professionals may join. The first are professional associations such as the Canadian Bar Association and the Canadian Medical Association. While regulators represent the public interest, professional associations represent the interests of the profession, engage in advocacy and provide continuing education. Membership is voluntary. Professional unions represent their members in collective bargaining with employers. If you are a member of a unionized workplace you are required to join the union, or at least pay dues. In some cases, for example teacher’s associations, the same body may function as both a union and a professional association.

Professional regulators follow the same basic template. There is a governing council which usually includes both members elected by the profession and public representatives appointed by the provincial government. The council establishes education requirements for admission to the profession and may also require its own entrance examination. There are specific rules of professional conduct and a more general code of ethics. A complaints committee investigates complaints of professional misconduct and may refer them to a discipline committee. The discipline committee (which usually sits as a panel of three) holds a hearing. If the complaint is proved, discipline committee can impose penalties including a reprimand, suspension or conditions on a license, fines and revocation of a license.

Consequences

There have been a lot of comments directed mainly at Jordan Peterson, to the effect that freedom or expression does not mean freedom of consequences. That is only partly true. If freedom of expression means anything, it must mean freedom from some consequences. Even in a dictatorship, people can say what they like if they are willing to risk the consequence of prison.

Consequences can be grouped into three categories. The first are those which follow from other individuals exercising their lawful freedom. Politicians who say something unpopular will lose votes and independent professionals may lose clientele. These consequences can be very costly but they are unavoidable in a free society.

The second type of consequences involve interference with legal rights by other individuals, such as being fired because of your beliefs or assaulted on the street. These consequences may entitle you to a remedy under ordinary law, such as a claim for wrongful dismissal, but they do not involve the constitutional right to free speech.

The third type of consequences are penalties imposed by the state. These are the consequences from which the constitutional protection of freedom of expression provides protection. Professional regulators are created by the provincial legislatures and exercise powers delegated by the legislatures. They are therefore subject to the provisions of the Charter of Rights and Freedoms, including the guarantee of freedom of expression.

Professional Speech and Charter Rights

Much professional work is done through speech or writing so if regulators had no right to regulate professional speech, they would not be able to do their job at all. Canadian courts have therefore applied Section 1 of the Charter which permits restrictions on rights which can be “demonstrably justified in a free and democratic society.” This allows regulators broad latitude to do their jobs but it is not unlimited. The courts do regularly strike down professional regulations or administrative decisions which go too far in restricting Charter rights.  Charter issues involving professional regulators may arise in two different contexts.

Challenging a Regulation

The first is where the court is considering where a rule or policy itself violates the Charter. Here the court is concerned with the rule as a matter of general application. In these cases, if the rule is found to violate a Charter right the court will apply the Oakes test to determine if it can be saved under Section 1. The government or regulator must first show that the law has a goal which is both “pressing and substantial.”

The court then applies a three-step proportionality test. The law or regulation must have a rational connection to its declared purpose, it must only minimally impair the affected Charter right and there must be proportionality between the importance of the law’s purpose and the impact on Charter rights.

A recent example of the application of the Oakes test is a challenge by a group of Christian doctors to a policy of the College of Physicians and Surgeons of Ontario which required doctors who objected to providing medical assistance in dying to provide an effective referral to another doctor who was prepared to provide this service.

The Ontario Court of Appeal held that while the policy did infringe on a doctor’s freedom of religion under Section 2(a) of the Charter, this infringement could be justified under Section 1. The court found that the objective of providing patients with equitable access to all lawful health care services was pressing and substantial. It was not reasonable to expect patients and families in a health crisis to navigate the health care system without assistance from their primary doctor. The requirement to provide a referral represented the minimum restriction on a doctor’s religious liberty which could achieve the objective of ensuring access to services.

Discretionary Decisions

The second type of cases are concerned with how a regulator exercised its discretion in applying a rule to the facts of a particular case. The challenge is not to the rule itself but to an application of the rule which unduly restricts Charter rights. In this type of case the courts take into account the principle of judicial deference. Canadian courts are very cautious when reviewing the decisions of professional regulators. The members of professional regulatory tribunals have specialized expertise which judges lack. The courts therefore apply a standard of review of reasonableness rather than correctness. The court will not set aside a decision, even if the judge disagrees with it, provided that the decision is within a range of reasonable outcomes.

When considering a Charter challenge of a discretionary administrative decision, the courts apply something called the Doré /Loyola test which was set out in the decisions of Doré v. Barreau du Québec and Loyola High School v. Quebec (Attorney General). A tribunal is expected to balance the protection of “Charter values” with the importance of the tribunal’s statutory objectives. This test has been criticized for creating more ambiguity than it resolves. The Supreme Court has never clarified what “Charter values” means and how, if at all, they differ from Charter rights.

The Doré /Loyola test does allow professional regulators a great deal of latitude to control professional speech, but subsequent decisions of the Supreme Court such as Groia v. Law Society of Upper Canada have reaffirmed that freedom of expression is an important Charter value.

Advertising

Some of the first Charter cases on professional regulation concerned professional advertising. Lawyers and other professionals used to have rules against advertising which limited them to not much more than a name, address and phone number. Advertising fees was not allowed. This helped maintain professional incomes by limiting price competition

However, the Supreme Court of Canada has held that the Charter protects all types of expression, including advertising. Professional regulators have a legitimate interest in protecting the public from misleading advertising, but these restrictions have to be justified under the Oakes test. For example, a total ban on fixed fee advertising would contravene the Charter  but regulations may require that any fee quotations accurately describe the services to be provided.  

Regulators generally require professional advertising to be “dignified and in good taste.” Canadian Gender Report brought a successful complaint against two Ontario doctors whose promotion of transgender “top surgery” on social media was a gross violation of this rule

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Professional Advice

The main purpose of professional regulation is to protect the public from unreliable professional advice. Members of the public lack the knowledge required to judge for themselves whether the professionals they hire are trustworthy. Professional licensing bodies set standards for entering a profession and take action against professionals who fail to maintain these standards in practice.

Regulation applies to advice professionals give to the public at large as well as directly to clients or patients. Most professional regulators have provisions in their codes of conduct which deal with members speaking to the media or posting on social media. For example, the College of Physicians and Surgeons of Ontario has a social media policy which provides, among other things, that members must disseminate information that is “verifiable and supported by available evidence and science” and is not “false, misleading or deceptive.”

The dilemma regulators face is that professional standards based on evidence and science are not fixed. They are constantly being debated and re-evaluated as new evidence emerges. Evidence based standards are reliable precisely because they are subject to constant scrutiny and debate. Sometimes the leading voices in a profession can be catastrophically wrong.

In ordinary times, this dilemma seldom arises. Professional standards develop gradually through discussion in journals and at conferences. The are usually created by consensus with some leeway for individual judgment. It is easy for regulators to draw the line between legitimate debate and professional incompetence.

In the urgency of the Covid pandemic the normal consensus based process of standards setting broke down. Decisions on lockdowns, masks and vaccinations were made by public health authorities on limited evidence with little opportunity for debate or criticism. With the ordinary channels of discussion bypassed, the debate spilled onto social media and into the public square. Some of it has been acrimonious and partisan.

Regulators have taken notice. One Ontario doctor was suspended for nine months for refusing to wear a mask and telling a patient that masks did not help and that Covid 19 was a money-making conspiracy. Another doctor was reprimanded for a series of Tweets, using a Twitter handle which identified him as a doctor, which “promoted unproven treatments, cited questionable sources around the issue of vaccine efficacy and suggested that the public was being scammed by medical experts and public officials.” In both of these cases, the doctor admitted the misconduct so the only issue was the penalty. Two registered nurses were also disciplined for statements made on social media and at a rally concerning masks and vaccines. Their applications for judicial review were dismissed.

A complaint against three other Ontario doctors for making “incorrect or inflammatory statements” about public health measures related to Covid 19 is ongoing. The three doctors have given notice that they will be raising the Charter in their defence. No hearing date has been set.

Off Duty Conduct

The powers of regulators over professionals extend beyond the actual practice of their profession. Codes of conduct include a catch-all clause which allows the regulator to impose sanctions for any conduct that tends to bring the profession into disrepute. These provisions are often used where professionals are found guilty of a serious criminal offence, such as a teacher found in possession of child pornography.

In off duty conduct cases the regulator has must get over two hurdles. First, it needs to show that there is enough connection between the conduct and the practice of the profession to justify the regulator getting involved at all. Second, if the conduct involves speech, the Charter has to be considered.

Ross v. Board of School Trustees, District No. 15 was a human rights complaint against a teacher who was accused of making anti-Jewish remark. There was no evidence of any direct classroom activity but he had published books and pamphlets and made media statements promoting antisemitic ideas. The human rights adjudicator found that Mr. Ross’s presence in the classroom created a poisoned environment and constituted discrimination against Jewish students. He ordered the school division to suspend Mr. Ross without pay for 18 months and to terminate his employment if he continued to promoted antisemitism. The Supreme Court of Canada found that the order did infringe on Mrs. Ross’s freedom or expression and freedom of religion but that this infringement was justified under Section 1 of the Charter.

Kempling v. British Columbia College of Teachers was a B.C. case of a teacher who was found guilty of conduct unbecoming a teacher because he had published derogatory statements about homosexuality. These statements include that sexual orientation could be changed and encouraging students who were confused about their sexual orientation to come to see him. The court found that the disciplinary action was justified because he had made it clear that his beliefs would inform his actions as a teacher and counsellor.

The differences between the Ross and Kempling decisions illustrate a danger that arises whenever the state begins to limit freedom of expression — the boundaries of acceptable speech keep getting narrower. Mr. Ross’s belief in a Jewish conspiracy are demonstrably false and hateful. Mr. Kempling’s belief that any sexual relations outside of a marriage between one man and one woman are sinful, is one that is sincerely held by a substantial minority of Canadians. It may be that Mr. Kempling cross a line by his stated intention to promote his beliefs to students, but these lines are becoming increasingly blurred.

Where the connection between the off-duty speech and professional activity is more remote, professional discipline is harder to justify. Whatcott v. Saskatchewan Association of Licensed Practical Nurses. was one of a number of cases involving William Whatcott, a licensed practical nurse who holds very strong views on many subjects including homosexuality and transgenderism.

In 2002 when he was picketing the offices of Planned Parenthood Regina. He carried a sign reading “Planned Parenthood Aborts Babies” and shouted things like “This place is the world’s biggest baby killer.” Mr. Whatcott did not identify himself as a nurse while picketing but Planned Parenthood still complained to the Saskatchewan Association of Licensed Practical Nurses. The discipline committee found Mr. Whatcott guilty of professional misconduct, imposed a fine and suspended his license until he paid it. Mr. Whatcott appealed the decision and the Saskatchewan Court of Appeal set aside the decision on the grounds that the discipline committee had violated his right of freedom of expression.

The association attempted to justify its decision on the basis that Mr. Whatcott’s off duty conduct tended to bring the profession into disrepute. The court rejected this argument out of hand. There was no evidence that Mr. Whatcott ever identified himself as a licensed practical nurse while picketing and there was no evidence that any member of the public would think less of the nursing profession in general because of anything Mr. Whatcott said.

The Saskatchewan Court of Appeal revisited the issue of off duty professional speech in Strom v. Saskatchewan Registered Nurses’ Association. Ms. Strom was a registered nurse who published a series of letters to the Facebook posts where she was strongly critical of the quality of palliative care provided at the hospital where her grandfather had recently died. Some nurses at the hospital brought a complaint against her to the nurses’ association.

The discipline committee found that Ms. Strom had acted inappropriately by engaging in “public venting” about health care issues, directly attacked other members of the profession and used her status as a registered nurse to give legitimacy to her comments. The Saskatchewan Court of Appeal overturned the findings of the discipline committee on the grounds that they violated Ms. Strom’s freedom of expression. The comments which gave rise to the complaint were part of a broader discussion of palliative care services in the Canadian health system. The court found that the freedom to criticize public services is a critical element of democracy and that practising professionals have an important role in these discussions.

Compelled Speech

The Charter right to freedom of belief and expression also protects people from being compelled to express beliefs that they do not hold. Some professional associations are now straining this protection by requiring members to endorse explicitly ideological positions. In 2017 the Law Society of Ontario approved thirteen recommendations by a working group on challenges faced by racialized licensees. The recommendations were far reaching but they met with little controversy except for one which said that the Law Society would:

…require every licensee to adopt and to abide by a statement of principles acknowledging their obligation to promote equality, diversity and inclusion generally, and in their behaviour towards colleagues, employees, clients and the public….

This requirement met with strong opposition from a group of academics and lawyers. They argued that while the Law Society may tell lawyers how to behave, it had no right to tell them what to believe. While most lawyers accept the idea of equality its meaning is the subject of live debate between supporters of formal equality (equal application of rules to everyone) and substantive equality (fair or equitable results.) The requirement that lawyers acknowledge the principles of “equality, diversity and inclusion” was a requirement that they accept the contested principle of substantive equality. Law professor Ryan Alford saw the statement of principles as part of a broader campaign by the professional and managerial class resist the rise of populism by creating “battle ready democracy” in which the scope of public debate would be limited.

Professor Alford commenced a court application to challenge the rule but it did not proceed beyond the initial stages. Instead, lawyer Lisa Bildy (who is currently representing Amy Hamm at her discipline hearing) took a more direct route. She organized a Stop SOP slate of candidates for the May 2019 bencher election (the governing body of the Law Society).

Although most lawyers had quietly accepted SOP, the vote by secret ballot told a different story. The Stop SOP group succeeded in electing 22 out of 40 of the lawyer bencher positions. The Statement of Principles requirement has been repealed but the controversy continued. The next bencher election will be in the spring of 2023 and a group called Full Stop will running a slate of candidates to continue to oppose the intrusion of political ideology into professional regulation.

Striking the Balance

The three essential qualities for a professional and competence, integrity and independence. Regulators are needed to ensure competence and integrity but they need to be careful not to sacrifice independence. The need for independence is especially obvious for lawyers who are often called on to advocate for clients agaisnt the state and powerful corporate interests, it exists in all professions. Clients need to have confidence that the advice they receive from professionals reflects that professionals own best judgment and not an externally imposed ideological agenda.