Professionals may now be censored by their regulators, on topics that have nothing to do with their regulated activity

Freedom of speech is one of the pillars of democracy. Freedom of speech also entails people being offended from time to time. The “right” not to be offended is not a pillar of democracy. (It is not even a right.) It instead is being used as a pretence by governments to stifle opposition and entrench themselves in power.

This is why many Canadians have been so concerned with our courts’ refusal to deal with the College of Psychologists of Ontario sending Dr. Jordan Peterson to “re-education camp” to learn to “ameliorate” his speech, failing which he might lose his licence. It is, justifiably, seen as an attack on free speech.

As concerned as thoughtful people might be about this development, I am sorry to report that they are not concerned enough.

For many years now the law in Canada has been that regulatory organizations such as the College of Psychologists are entitled to “deference” from the courts. As a result of this deference the standard for reviewing the decision of such an organization is not one of “correctness” but rather “reasonableness.” This means that even if the regulator is wrong about a decision, that decision will not be overturned by the courts as long as it is “reasonable.” This, obviously, gives regulators great leeway in making decisions.

At first blush the policy of deferring to regulators seems to make sense. After all, who knows more about being an engineer, let’s say, than other engineers? Who knows more about being an architect, psychologist, etc. than other members of the profession?

However, regulators are now making decisions about issues that have nothing to do with the areas that they regulate. They are making decisions that infringe on the constitutional rights of those who they regulate. These are areas in which regulators have no expertise whatsoever. Nonetheless the courts continue to apply the “reasonableness” standard to these decisions.

In recent years the Supreme Court of Canada has set out what might be described as a meagre protective measure to the constitutional rights of the regulated. The court has held that when regulators make a decision that infringes on the constitutional rights of a regulated individual the decision must contain a “robust” discussion in which the regulator considers the nature of the constitutional infringement versus its statutory goals in making the order. Now even this meagre protection is being stripped away.

Let’s look at Dr. Peterson’s case. The decision of the College of Psychologists clearly infringes on Peterson’s Charter right of freedom of expression (or free speech as I like to call it). In making its decision the college did not engage in the “robust” discussion that was dictated by the Supreme Court. This was explicitly recognized by the Divisional Court of Ontario, which reviewed that decision. However, the Divisional Court excused the college from having to justify its decision on the basis that the order against Peterson was “remedial” rather than “punitive.” There is at least one other Ontario Divisional Court decision that follows the same reasoning and this therefore, currently appears to be the law in Ontario if not Canada.

There is a substantial argument that the order of the college against Peterson is in fact punitive, but that’s dealing with the wrong question. The issue should not be whether the order is punitive or remedial but rather whether the order infringes on an individual’s Charter rights.

Once an order infringes constitutional rights then the regulator, according to the Supreme Court, should be justifying that decision in a “robust” discussion.

However, by employing this semantic loophole, the Divisional Court in Ontario has effectively gutted even the meagre protection offered by the Supreme Court to a regulated individual’s Constitutional rights.

All a regulator has to do now is to claim that whatever it is ordering is “remedial” and it virtually has carte blanche to infringe on a member’s rights without justification or explanation, even when the behaviour in question has nothing to do with the regulated activity.

Take Peterson’s case for example. The complainants were not students or patients of Peterson’s. They had never met him. Their complaints did not involve the practice of psychology. The complainants simply did not approve of Peterson’s comments on political and social issues. As a result of those complaints the college infringed on Peterson’s right of free speech with little to no discussion or justification of the infringement and was allowed to do so by the Divisional Court.

What is more alarming is that the Supreme Court refused to grant leave to appeal the Divisional Court decision, which had the effect of removing the protection, however meagre, set out by the Supreme Court itself.

The millions of Canadians who are members of such organizations may now be censored by their regulators, on topics that have nothing to do with their regulated activity, without an explanation or justification.

Are you worried now? You should be.