Registrants enjoy a constitutional freedom of expression. However, there are limitations imposed on those freedoms by virtue of the person’s professional status. Certain expressions are inconsistent with their duties to avoid harming clients and the public, avoid undermining the public confidence in the profession, and ensuring public trust in the regulator.
In Peterson v. College of Psychologists of Ontario, 2023 ONSC 4685, a prominent social media personality, who is a psychologist, made several controversial statements. These included telling an individual who expressed concern about overpopulation “You’re free to leave at any point”, characterizing a previous client as vindictive and describing that client’s complaint as a “pack of lies”, speaking about air pollution and child deaths as “it’s just poor children, and the world has too many people on it anyways”, calling another commentator a “prik”, referring to a politician as an “appalling self-righteous moralizing thing”, refusing to use Elliot Page’s name and pronouns, and calling a physician who performed surgery on Elliot Page a “criminal”, among other statements.
The regulator imposed a mandatory remediation (coaching) program on the registrant regarding professionalism in public statements. The registrant challenged the decision as infringing on his freedom of expression. The Court upheld the regulator’s decision as constituting a reasonable balancing of the registrant’s professional obligations with his constitutional rights. In doing so, the Court considered the following factors.
- The regulator had made a previous decision in respect of prior concerns that recognized the registrant’s freedom of expression and which had resulted in only the offering of advice about the tone of his communication.
- The regulator had engaged in a series of communications with the registrant, again acknowledging his freedom of expression, and offering to resolve the complaint with an undertaking to complete a coaching program.
- Focussing on the demeaning, degrading, and unprofessional nature of his comments rather than the topics he addressed.
- Noting that the registrant had referred to his professional status as a clinical psychologist when making the comments.
- Observing that the comments were not made in private, but rather were made in public platforms with a broad audience.
- Referencing specific portions of the College’s Standards of Professional Conduct and the Canadian Code of Ethics for Psychologists that spoke directly to the tone and nature of any registrant’s comments. The underlying goal of these documents was to respect the dignity of persons as an essential value of the profession.
- Identifying the harm that those comments could have on their direct and indirect recipients. This emphasized the importance of the statutory objectives being addressed including protecting the human rights of the targets of the comments.
- Mentioning the regulator’s concerns about the high “recurrence risk” of the registrant continuing this type of behaviour, particularly since the registrant demonstrated a limited acknowledgement of the regulator’s concerns.
- Determining that the “stakes of the decision” were relatively low, with there being no disciplinary adjudication or findings and that the order was remedial, not punitive.
- The committee panel making the decision was an expert body.
Cumulatively, the Court concluded that the screening committee of the regulator reasonably balanced the competing considerations in coming to its decision. The Court also found that the reasons for the decision by the panel appropriately covered the issues raised, including the constitutional freedoms at issue (i.e., they were transparent, intelligible, justifiable, and reasonable).