By Howard Levitt
As the court put it, “The issue in this case is whether the panel’s decision to order Dr. Peterson to complete a SCERP (remedial re-education) was reasonable.”
The decision essentially states the court will not overturn the College of Psychologists’ decision because, whether it agrees with the decision or not, it did not meet the test of being so patently unreasonable that the court would second guess the college. According to the court, the college, not the court, is the expert body within its domain.
That is the proper legal test set out by the Supreme Court of Canada, in a case called Vavilov, for the review of any administrative tribunal’s decision, whether it be the Labour Board, Immigration Appeal Board, Landlord and Tenant board or any other administrative body.
But there are two significant problems with this decision and result. First, it is not the test that should have been applied to this particular case (which may, in fairness to the court, have been a function of the arguments made before it by counsel). Second, the impact of this decision is to empower woke bodies everywhere to discipline members who express unpopular opinions that cause someone “offence.” Of course, if prevailing political sentiments change, others will be next in that firing line.
This decision will inevitably motivate political enemies of any member of a regulatory body — whether it be one of lawyers, osteopaths, engineers or, well, psychologists — who have no legal basis for any claim otherwise, to harass that person by filing complaints about their expressed opinions or writings.
If someone, for example, complained about this column, they could file a Law Society complaint and make me spend money, time and stress defending myself. There is no real remedy as it is difficult legally to sue someone for filing a disciplinary complaint as such complaints are privileged — that is, protected from a lawsuit for defamation.
This decision will encourage such future complaints. The decision also answers the wrong question.
The issue should not have been whether the College of Psychologists’ decision was transparent and reasonable given its code of ethics (and which it found Peterson had arguably violated), but whether the college even has the legal jurisdiction to develop a code of ethics in the first place that prohibit the free expression of its members, unrelated to their clinical psychological practice, particularly if that free expression breached no laws — that is, wasn’t criminal nor defamatory.
The court’s starting point was that the college did not act unreasonably in concluding Peterson had violated its code of ethics in some of his political statements. But the real question should have been whether the legislation creating the college empowered it to go so far as to create a code that limits its members’ free and lawful speech.
Regulatory professional bodies are, after all, legislated into existence for the purposes of educating their members, ensuring competence and protecting the public from malpractice in their selected fields. Peterson’s political statements attacking Justice Trudeau, Gerald Butts, etc., had nothing to do with any of those legislative mandates. And they had nothing to do with his practice of psychology (which he has not practiced for several years). None of the complainants were even his patients.
The court in this case appeared to take the college’s code of ethics as a given, something that it had the right to impose and therefore supported the college’s right to force Peterson to take remedial re-education at his expense as a prelude to potential future discipline if his re-education does not curb his future “offensive” political comments. The question that should have been put to the court was whether the code of ethics itself overreached and was beyond the college’s legislative mandate.
My advice is that Queens Park should review this decision and enact legislation preventing regulatory associations from curtailing the otherwise lawful free speech of their members. That is the simple solution to this. Otherwise, those whose opinions are different from those of their governing bodies, and who lack the resources of Peterson to fight back, will be quickly silenced in a manner antithetical to our liberties.
This court decision will embolden professional associations to enact similar codes of ethics that suppress lawful activities which, like Peterson’s political comments, are unrelated to his profession and are offensive to some. And enable political attacks on members of professional bodies to threaten their livelihoods. Indeed, this is inevitable in light of this decision. And that would be very, very bad for our democracy.