Factors Permitting Infringement of Freedom of Expression

Regulators need to consider the freedom of expression rights of their registrants. However, regulators can infringe on those rights in a proportionate manner to achieve the significant statutory objectives of their enabling legislation. The case of Pitter v. College of Nurses of Ontario and Alviano v. College of Nurses of Ontario, 2022 ONSC 5513 (CanLII), https://canlii.ca/t/jshcj illustrates how that balancing can occur.

The case dealt with two nurses who had made statements without supporting evidence related to the COVID-19 virus, public health measures, and vaccinations. For example, one suggested that some vaccines would alter DNA and permit the tracking and manipulation of thoughts. The other said that cancer followed vaccinations and that they would reduce reproductive capabilities of recipients. In both cases the regulator did not refer them to discipline but issued cautions and directed completion of remediation programs.

On judicial review, the Court upheld that the outcomes were a proportionate infringement of the registrants’ freedom of expression rights, taking into account the following considerations:

  • The determinations were remedial and educational, not disciplinary or punitive.
  • The statements were extreme and plainly misleading.
  • The statements “were not within the range of rational public debate. Rather, the committee raised serious concerns about the statements being dangerous and contrary to public health guidelines.”
  • While “Standards of practice are not necessarily found in writing nor expected to address precisely every factual scenario”, there was information published by the regulator that was relevant to the conduct in this case.
  • The registrants had identified their professional status.

The Court also found that a detailed analysis of the Charter of Rights and Freedoms was not required where the registrants had only briefly raised the constitutional issue as part of a much larger response to the investigation mostly addressing other issues.

The Court also found that the regulator’s statement that one of the registrants had failed to maintain the profession’s standards did not amount to a finding of professional misconduct.

In addition, the Court said that posting of the outcomes on the public register “is not an insignificant impact given that anyone can search the registry, including potential employers. Nonetheless, it does not undermine the fundamental point that, as found by this Court, these are remedial and not disciplinary responses ….”

This case gives some further guidance on how regulators can balance a registrant’s freedom of expression rights against the regulator’s public interest mandate.

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