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What happens when a regulated medical professional’s use of their expressive rights conflicts with the ethical standards of their profession?
In Peterson v College of Psychologists of Ontario, 2023 ONSC 4685, the Divisional Court considered a case pitting high profile psychologist Jordan Peterson against a decision by the College of Psychologists’ Inquiries, Complaints and Reports Committee (the “ICRC“) requiring him to complete a specified continuing education or remedial program (a “SCERP”). The ICRC’s decision was based on what appeared to be inflammatory and unprofessional comments by Peterson in various venues, including on social media and podcasts.
Jordan Peterson is a registered clinical psychologist who has amassed a sizeable social media following. In 2022, the College received complaints regarding Peterson’s public conduct on social media and for his public appearances on several podcasts which were criticized for being degrading, demeaning, and unprofessional:[i]
The ICRC Decision
The ICRC found that Peterson’s statements could be seen as degrading, demeaning, and unprofessional, emphasizing that psychologists can reasonably regard these statements as disgraceful and dishonourable.[iii] The panel expressed concern that Peterson’s comments were inconsistent with professional standards, posed a risk of harm to the public, and had the potential of undermining public trust in the profession.[iv] The panel noted that despite not practicing clinically, he continues to be registered, and has the authority to practice.[v]
The panel ordered Peterson to undergo a SCERP which required that Peterson attend a coaching program to address his professionalism. Peterson sought judicial review.
The Divisional Court’s Decision
The main issue in judicial review was whether the Panel’s decision to order a SCERP was reasonable.[vi] Peterson’s main argument was that the ICRC did not properly consider his freedom of expression.
The Legal Framework
The court began by outlining the framework for determining how Charter guarantees are meant to be protected in the context of adjudicated administrative decisions. That framework is set out in Doré v Barreau du Québec, 2012 SCC 12, which requires administrative decision-makers like the ICRC to proportionately balance Charter rights and values and its statutory objectives. As the Court explained, this is a “highly contextual inquiry”[vii]:
A decision-maker must first consider the statutory objectives it is seeking to uphold, and then, secondly, “ask how the Charter value at issue will best be protected in view of the statutory objectives.” This requires conducting a proportionality exercise, balancing “the severity of the interference of the Charter protection with the statutory objectives”.[viii]
However, a decision-maker need not “choose the option that limits the Charter protection least”.[ix]
Review of the ICRC Decision
The Divisional Court found that the ICRC appropriately balanced Peterson’s freedom of expression with the statutory objectives of the College.[x]
With respect to the statutory objectives at issue, the Court referred to various sections of the Canadian Code of Ethics for Psychologists including a statement that “respect for the dignity of persons is the most fundamental and universally found ethical principle across disciplines, and includes the concepts of equal inherent worth, non-discrimination, moral rights, and distributive, social and natural justice”. The Code continues by requiring that members of the profession “Not engage publicly…in degrading comments about others, including demeaning jokes based on such characteristics as culture, nationality, ethnicity, colour, race, religion, sex, gender or sexual orientation.”[xi]
While Peterson argued that reliance on the Code by the ICRC was “misplaced’ given that he was expressing his “off duty opinions” (i.e. that his statements were made in his personal capacity), the Court rejected this argument and held that Peterson’s comments were “not personal comments made in conversation with friends or colleagues, but public statements to broad audiences” and that he described himself both on Twitter and on the podcast as a clinical psychologist. Peterson’s regulated status lent credibility to his words. Moreover, the Court noted that even when “off duty”, members of regulated professions can still harm public trust in the profession.[xii]
The Court then considered whether the ICRC appropriately balanced the statutory objectives of the Code with Peterson’s freedom of expression. The Court emphasized that given the ICRC’s role as a screening body, it effectively had three options: refer the matter to the Discipline Tribunal, do nothing, or direct a SCERP. By directing a SCERP, the “ICRC pursued a proportionate and reasonable option to further its objective of maintaining professional standards, and which will have a minimal impact on Dr. Peterson’s right to freedom of expression.” The ICRC’s 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” particularly in light of earlier warnings he had received in 2020. [xiii]
The freedom of expression of regulated professionals is not absolute in circumstances where their speech transgresses certain boundaries set by the profession itself. Even when “off duty”, regulated professions may still cause harm to the public trust (and therefore be subject to remedial and disciplinary measures) by engaging in conduct which is inconsistent with the core values of their profession.
[i] Ibid at para 9.
[iii] Ibid at para 23.
[iv]Ibid at para 24.
[v] Ibid at para 25.
[vi] Ibid at para 28.
[vii] Ibid at para 31.
[viii] Ibid at para 32.
[ix] Ibid at Para 33
[x] Ibid at para 38.
[xi] Ibid at paras 40-41.
[xii] Ibid at paras 46-47, 51-55.
[xiii] Ibid at para 64.
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