Spencer Evans shares his thoughts on the recent decision in PETERSON v. COLLEGE OF PSYCHOLOGISTS OF ONTARIO, 2023 ONSC 4685
Is the Constitution, including the Charter of Rights and Freedoms, the supreme law of Canada?
Where self-governing regulatory bodies take administrative action against licensed professionals who express unorthodox opinions, perhaps not. Until an appellate court rules otherwise, the watchword is substantial judicial deference.
The Peterson Decision
On August 23, 2023, a three-judge panel of the Ontario Divisional Court issued a decision with significant implications for licensed members of regulated professions who are concerned about their right to freedom of expression.
The Applicant, the often controversial psychologist Dr. Jordan Peterson, had sought judicial review of a July 27, 2022 decision of the Inquiries, Complaints and Reports Committee (“ICRC”) of the College of Psychologists of Ontario (the “College”), which had ordered Dr. Peterson to complete a remedial program regarding “professionalism in public statements” (the “ICRC Decision”). This program was to be of indefinite duration and at Dr. Peterson’s expense. A refusal to complete the program would likely result in Dr. Peterson being referred to a disciplinary hearing.
The Divisional Court upheld the Decision as reasonable.
The Complaints to the College of Psychologists of Ontario
The ICRC Decision was a result of a number of complaints made to the College in early 2022 regarding Dr. Peterson’s comments on social media and on the Joe Rogan Experience podcast. None of the complaints were submitted by clients or former clients of Dr. Peterson, and many were from outside of Canada.
The ICRC Decision was also preceded by a 2020 decision in which they had referred to the Charter’s guarantee of “rigorous debate” and had decided Dr. Peterson’s statements were protected “so long as he does not violate provincial or federal laws”. At that time the ICRC concluded that whether Dr. Peterson’s views reflected poorly on the profession was “a matter of opinion and not fact”, however, the ICRC had advised him to offer his opinions in a “respectful tone”.
The complaints submitted in 2022 drew attention to the following conduct:
- Re-tweeting a post by Conservative Party leader Pierre Poilievre urging governments to end Covid-19 restrictions.
- In response to a scientist who implied that the world population should be reduced, stating, “You’re free to leave at any point.”
- Questioning the removal of children from the care of parents who participated in the Freedom Convoy protests in Ottawa.
- Using harsh language to refer to various left-wing political figures, including Ottawa City Councillor Catherine McKenney, former Principal Secretary Gerald Butts, Prime Minister Justin Trudeau, and former Prime Minister of New Zealand Jacinda Ardern.
- Misgendering actor Elliot Page and referring to the surgeon who performed his breast removal as a “criminal”.
- Commenting that a plus-sized model featured in the Sports Illustrated magazine was “Not Beautiful.”
- Stating that there is no culture of Nazism or white supremacy in Canada.
- The complaints regarding the Joe Rogan podcast appearance take issue with Dr. Peterson expressing opinions on “areas well outside of his areas of competence”, including climate change, Covid-19, nuclear energy, Marxism, famines, the automobile industry, animal testing, and free trade. The complainants also lament his comments on matters that fall under the purview of psychology, such as IQ distributions. The reasons of the Divisional Court draw particular attention to Dr. Peterson’s discussion of an unrelated complaint by a former client which was determined to be unfounded, and his sarcastic response to the notion that standards of living should be sacrificed to reduce global carbon emissions: “it’s just poor children, and the world has too many people on it anyways.”
Despite the fact that many of the complaints accused Dr. Peterson of spreading “misinformation”, the ICRC Decision largely side-stepped this issue, emphasizing its finding that some of the above statements were “demeaning, degrading and unprofessional”. Referring to the Canadian Code of Ethics for Psychologists the (the “Code”) and the College’s Standards of Professional Conduct, the ICRC found Dr. Peterson’s conduct posed a moderate risk of harm to the public, with the potential harms including “undermining public trust in the profession of psychology, and trust in the College’s ability to regulate the profession in the public interest”, and noted that his statements “raise questions about Dr. Peterson’s ability to appropriately carry out his responsibilities as a registered psychologist.”
In short, the gravamen appears to be the manner or tone of his statements and not their content.
The Ontario Divisional Court’s Response to Dr. Peterson’s Arguments
At the Divisional Court, Dr. Peterson argued that his statements were “off duty opinions” and that the College’s reliance on the Code was misplaced where it was “operating at the very margins of its mandate”. The Court disagreed, finding that these were not personal comments “but public statements to broad audiences.” This was supported by the finding that Dr. Peterson had described himself as a clinical psychologist both on Twitter and on the Joe Rogan podcast.
In his decision, Justice Schabas refers to cases where licensed professionals were denied judicial review of disciplinary decisions regarding their public statements.
In Kempling v. British Columbia College of Teachers, 2005 BCCA 327, the BC Court of Appeal upheld a teacher’s one-month suspension for an article and letters to the editor he wrote expressing his views on homosexuality in a local newspaper, in which he associated homosexuals with immorality, abnormality, perversion and promiscuity. The essence of the disciplinary action in Kempling was that the teacher had engaged in discriminatory behaviour, which was not explicitly found in Peterson’s case (although this is alluded to in quoted passages
of the Code).
More recently, in Pitter v. College of Nurses of Ontario, 2022 ONSC 5513, the Court upheld a direction that a nurse practitioner be cautioned and attend remedial education for speaking out against mask and vaccine mandates during the Covid-19 pandemic. Unlike Dr. Peterson’s case, this remedial action was based on a finding that the statements “were not based on evidence, spread what could be dangerous misinformation, and were directly contrary to public health guidelines.”
Dr. Peterson had argued that the ICRC had failed to conduct an appropriate balancing of his Charter rights and the statutory objectives of the College, as required by Doré v. Barreau du Québec, 2012 SCC 12, specifically, that the ICRC’s cursory reference to his s. 2(b) right to free expression was insufficient given the decision in Grant v. Torstar, 2009 SCC 61, where the Supreme Court of Canada held that “freedom of expression and respect for vigorous debate on matters of public interest have long been seen as fundamental to Canadian democracy … all Canadian laws must conform to it.” Justice Schabas noted that the ICRC had agreed that Dr. Peterson’s Charter rights were engaged, “but that it was subject to his duty to the public and to the profession to conduct himself in a way that is consistent with professional standards and ethics.”
S. 52(1) of the Constitution Act states that “The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect.” To state that someone’s constitutional rights are subject to any other law, and not the other way around, is contrary to fundamental constitutional principles. Of course, s. 1 of the Charter may legitimize restrictions on such rights, but this must be demonstrably justified by the party seeking to uphold the restriction in question.
Dr. Peterson also argued that the ICRC Decision failed to satisfy the required standard of reasoning set by the Supreme Court of Canada in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65. As Chief Justice Wagner wrote, “Reasons shield against arbitrariness as well as the perception of arbitrariness in the exercise of public power … “public decisions gain their democratic and legal authority through a process of public justification” which includes reasons “that justify [the] decisions [of public decision makers] in light of the constitutional, statutory and common law context in which they operate.”
Despite the standard of review set down in Vavilov, the Court held that the ICRC was not required to provide a meaningful discussion of the constitutional issues in this case. As the ICRC is merely a “screening body”, Justice Schabas believed that its decision was not even subject to judicial review “as the process has not run its course”, citing Volochay v. College of Massage Therapists of Ontario, 2012 ONCA 541. In the same paragraph, it was found to be noteworthy that the ICRC Decision to direct participation in social media training was “not disciplinary, but remedial.” However, the Volochay case did not involve such a distinction, but rather was a judicial review of a decision to appoint an investigator after a complaint against the applicant had already been withdrawn. Mr. Volochay’s judicial review was brought at the preliminary stage of an administrative proceeding, not after an adverse finding had been made against the applicant, as was the case with Dr. Peterson.
The Divisional Court’s authority for the remedial-disciplinary distinction is found in Longman v. Ontario College of Pharmacists, 2021 ONSC 1610. But this case, too, is distinguishable. Longman was not related to the public statements or “off-duty” conduct of the applicant, but rather to sloppy pharmacy practices. The remedial action was meant to improve the member’s practice in a strictly technical sense. Furthermore, there is no mention of a more deferential standard of review for such remedial decisions in Longman – or in Pitter, for that matter.
Interestingly, the Divisional Court found that “the ICRC Decision does not prevent Dr. Peterson from expressing himself on issues of interest to him and his audiences; rather, the Decision is focussed on concerns over his use of degrading or demeaning language”. But in the same paragraph, Justice Schabas states that in Pitter remedial training was directed in “similar circumstances”.
There was no finding that the nurse’s statements in Pitter were degrading or demeaning, but rather that they constituted “misinformation”. In Pitter it was the content of the statements that attracted the ire of the regulatory authorities and which justified their decision. Given that precedent, it is not clear that Dr. Peterson could have kept himself out of trouble by expressing the same opinions in a more polite tone. In other words, the regulator in Pitter was expressly remedying unorthodoxy, whereas in Peterson this was arguably more implicit.
It could be that the College believed Dr. Peterson’s manner of communication was a “lower hanging fruit” than the unorthodox content of his statements. If so, they were aided by Justice Schabas’ finding that it was “not necessary to engage in whether Dr. Peterson’s comments were supported by facts or were his honest opinion, as the concern arises from the nature of the language used, not the validity of his opinions.” Nor was it necessary for the ICRC to consider Dr. Peterson’s motivation in making his comments. Judging by the Court’s discussion, a finding by a regulator that any negative or sarcastic comment may be degrading or demeaning will be accorded substantial deference.
Ultimately, the Divisional Court upheld the ICRC Decision as transparent, justifiable and reasonable, and made a substantial costs award against Dr. Peterson, who has since indicated that he will file an appeal.
What this Means for Licensed Professionals who Express Opinions Publicly
So, what are the takeaways for those who are governed by professional licensing bodies and who use social media or other platforms to communicate their opinions?
Given the emphasis in the Court’s decision on Dr. Peterson’s self-identification as a clinical psychologist on social media and in his public appearances, other professionals might consider whether to publicize their respective affiliations. Presumably, colourful language would be less likely to reflect poorly on one’s profession where comments are made without reference to the commentator’s professional status, or anonymously.
However, noting that the Kempling decision does not refer to the applicant’s self-identification as a teacher in his publications, licensed individuals should take care to avoid discriminatory language in all their communications. The Peterson decision only alludes to discrimination and does not address it directly, perhaps signifying the difficulty in adjudicating this issue. In borderline cases, context will be necessary to determine whether speech is discriminatory, and reasonable people are bound to disagree on where that line will be drawn.
As for whether individuals can expect professional consequences (whether remedial or disciplinary) for stating opinions that are not clearly discriminatory, the jurisprudence is not particularly helpful. The nurse in Pitter was not degrading or demeaning anyone, but she was nonetheless sanctioned for opposing the orthodox positions of her college. In Peterson, the Court was – ostensibly – not concerned whatsoever with whether the applicant’s opinions were true or false.
Licensed individuals would be well-advised to adopt a professional tone in all public communications, particularly when they are going against the orthodoxy of their respective regulatory bodies. Of course, anyone familiar with social media will know that such courtesy is not the general rule for online discourse, especially on Twitter, and that professionals who hold more mainstream opinions often unleash vitriol with impunity. But sinking to this level will only invite adverse consequences from the various colleges, law societies, etc. which govern our conduct, and these administrative decisions will likely be accorded significant judicial deference. And finally, unlike the nurse practitioner in Pitter, such professionals should adhere to rigorous standards of evidence with respect to the content of the opinions they express.