Limits to the Freedom of Expression

NB This decision was reversed by the Ontario Court of Appeal at Lauzon v Ontario (Justices of the Peace Review Council), 2023 ONCA 425 (CanLII), https://canlii.ca/t/jxnwq.

There is little doubt that the limits on practitioners’ freedom of expression is becoming a central issue in professional regulation in recent years. Pandemic-related speech will only accelerate this trend. While the circumstances are rather unique, the case of Lauzon v. Justices of the Peace Review Council, 2021 ONSC 6174 (CanLII), https://canlii.ca/t/jj90l provides some additional insights on this issue.

The practitioner, a Justice of the Peace, published an opinion piece about the bail system in a national newspaper. A disciplinary panel found the article constituted professional misconduct for bringing the administration of justice into disrepute because of “the manner by which she did so, including the language that she used, the personal attacks that she levied against Crown counsel appearing before her, and the statements she made conveying disdain for the justice system in which she is an integral participant.” The majority of the panel recommended removing her from her position.

The Court found that the panel had conducted an appropriate balancing exercise in determining whether the nature, context and content of the expression supported disciplinary action despite the practitioner’s freedom of expression rights. Of relevance were guidelines that had been published on the issue. The Court found that the panel did not require actual evidence as to whether public confidence in the administration of justice was undermined.

In terms of the sanction, the Court upheld the recommendation for removal on the basis that no error in principle was demonstrated. The sanction was protective of public confidence in the legal system and not punitive. The conduct was serious, mitigating factors were taken into account, and prior precedents were considered. The Court also indicated that the panel’s consideration of the manner in which the practitioner responded to the complaint and during the hearing (misleading and combative) and the lack of remorse and remediation were appropriately considered on the issue of whether a lesser sanction would be effective. Those considerations were not treated as aggravating factors.

Taking a contextual approach as to whether a particular expression is unprofessional can result in misconduct findings being upheld.

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