By: Michael Alexander, JD, LLM
Jordan Peterson appealed the order of the Ontario College of Psychologists requiring him to take a brainwashing course to correct his wrong-think about the political issues on which he frequently speaks. Peterson argued that the decision curtailed his right to freedom of expression guaranteed under section 2 of the Charter of Rights and Freedoms because it penalized him for engaging in protected political speech. The Court said “No” to that because the College is not trying to regulate the substance of what he was saying, just the way in which he was saying it; and it is doing so for a legitimate state purpose, which is to maintain professional standards and the public’s trust in the profession.
The Court’s decision abstracted from the fact that the College is using the excuse of its concern with professionalism to register a disagreement with the substance of Dr. Peterson’s statements. The College’s order should have been seen as having a “chilling effect” on the expression of political opinion; as such, it should have been regarded as a forbidden measure intended to suppress minority views. In a court system truly devoted to protecting free expression, Peterson would have won on that point. In the US, he certainly would have won.
The Court’s bias against Peterson was evident in the opening lines of the decision: “When individuals join a regulated profession…, they take on obligations and must abide by the rules of their regulatory body that may limit their freedom of expression.” No. They need not abide by those rules at all, not if they conflict with the Charter of Rights, which is the Supreme Law of Canada. The Court begins by assuming what it should question, which is whether the rules of the profession offended Dr. Peterson’s right to freedom of expression.
It all went downhill from there, particularly when the Court held that professional bodies can regulate the expression of their members in their public and private lives. That clearly offends the right to privacy recognized under the Charter, which draws a distinction between our public lives, where we can be regulated by the state, and our private lives, where we can say and do as we please.
The Divisional Court’s approach was predictable. It has been rubber stamping the decisions of the administrative state since the early 2000s. There is an institutional bias at the Court in favour of big government. One cannot hope to succeed there. Only at the Court of Appeal can one hope for a more clear-sighted decision. Also, it was unfortunate that Justice Schabas took the lead in this case and authored the decision. I know Justice Schabas. He was a classmate of mine at the University of Toronto Law School. I also once appeared before him. He is a remarkably smart and highly credentialed jurist; but he is also an establishment person who believes in systems. Don’t count on him to rock the boat.
I was concerned from the get-go that Dr. Peterson would not succeed at the Divisional Court. By appealing the College’s order before a final decision on its status was rendered by the College’s Discipline Tribunal, he had to appeal on a lower standard of review referred to as reasonableness. That gave the Court the opportunity to defer to the College’s point of view. If he had appealed a decision from the Tribunal, the Court would have had to apply the highest standard of review, which is correctness. That would have forced it to grapple with the Charter argument with greater seriousness. In my opinion, the decision to go for review at an early stage was a strategic error.
Does the result in the Peterson case help or hurt our doctors? It does neither. If the CPSO Tribunal renders a decision against Dr. Trozzi, we will appeal the decision to the Divisional Court on the standard of correctness. Moreover, we have already argued in our 51-page legal brief that the College’s attempt to regulate Dr. Trozzi’s statements is not a reasonable limit on his right to freedom of expression, but rather, an attempt to defeat it by suppressing minority opinions contrary to the very purpose of the guarantee.
I wish Dr. Peterson the best in his appeal. I thought his case might help ours. Now it may be that our case will help his.