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On June 21, in a hot, crowded courtroom at Old Osgoode Hall in downtown Toronto, the fight between Dr. Jordan Peterson and the College of Psychologists of Ontario played out.
The fight stems from an investigation by the regulator for clinical psychologists into statements Dr. Peterson had made on Twitter and on the Joe Rogan Podcast. The regulator ordered him to participate in a coaching program about professionalism in public comments, at his own expense, and for an indeterminate amount of time. He is now challenging that order for training (or as Dr. Peterson calls it, “re-education”) in a judicial review, which took place in the hearing this week. (A judicial review is when a court reviews an administrative decision, like the college’s decision to order training.)
During the hearing, the lawyers hired by the College of Psychologists made great hay of the controversy of those statements by Dr. Peterson, which were were no doubt controversial. While arguing with Trudeau’s former chief of staff and an Ottawa city councillor, Dr. Peterson used rude epithets. He called the physician who performed gender affirming surgery on transgender actor Elliot Page “criminal” and “deadnamed” him using female pronouns and his pre-transition name. Dr. Peterson made comments about the changing nature of aesthetic beauty by referring to a plus size model as “not beautiful.”
But he also was unfairly taken to task for a joke pointing out the hypocrisy of western progressive climate activists for ignoring harm to “poor children” and for describing a former client as “vindictive” because she had made false allegations against him — allegations for which he was exonerated by the college.
It is difficult to see how the last two comments could offend anyone. There is no principle of law that professionals cannot point out that allegations against them are false, or criticize certain types of politics using jokes. The complaints about those comments appear to be bad faith misinterpretations of Dr. Peterson’s intent. But even the other comments, which could lead to offence, do not fall within the scope of the regulator.
There is no right not to be offended, and the potential to offend does not mean any harm has been caused. None of the people Dr. Peterson was commenting on were the source of the complaints. The complaints were mostly made informally by strangers to Dr. Peterson, who had tagged the college on Twitter. In two cases, formal complaints were made by people falsely claiming to be current or former clients of Dr. Peterson’s.
While professional regulators are entitled to regulate speech of their members to some degree, there must be a clear nexus between the speech and the profession. For example, a physician cannot prescribe and sell snake oil. A lawyer cannot lie to court. But there must be a connection to the profession, and the regulator must give weight to the right to freedom of expression.
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This issue was considered in a case called Strom v Saskatchewan Registered Nurses Association where a nurse, identifying herself as such, posted on Facebook about what she considered inadequate care her grandfather had received while in a long term care facility. The nurses’ regulator disciplined Strom, but the discipline was overturned on appeal, where the court found that the regulator had given little to no weight to Strom’s right to freedom of expression.
Like Strom, Dr. Peterson identifies himself as a professional. But this is not enough to put his comments within the scope of the regulator, as his comments did not relate to the practice of psychology. Although controversial, they are about social and political issues. Because these comments are not about the practice of psychology, they are just like everyone else’s speech: protected by the Canadian Charter of Rights and Freedoms.
Professionals are entitled to private lives. A professional regulator, whether it be of psychologists, nurses, physicians, accountants or teachers, should not police its members’ political opinions.
While Dr. Peterson can afford this fight, most professionals cannot. And we do not want to create a world where regulated professionals must soft pedal their public speech for fear of activists weaponizing their professional regulator. Like everyone in Canada, members of regulated professions enjoy freedom of expression under the charter. Public commentary on social and political issues, including controversial commentary, lies at the core of this freedom.
The regulator’s lawyers’ listing of Dr. Peterson’s comments in court, and emphasizing how caustic or rude they may be, is a classic tactic of any government trying to suppress speech. It is always government’s argument that the speech they seek to silence is of little value and not worthy of protection.
But freedom of expression isn’t needed to protect popular speech. Speech that can offend is not at the periphery of protection. And when it engages political and social issues, it is at the core of freedom of expression even if it is caustic or rude. We cannot lose sight of that.
Christine Van Geyn is the litigation director of the Canadian Constitution Foundation, which was an intervener in this case (Jordan Peterson v College of Psychologists of Ontario).