Overview

Jordan Peterson is a high-profile Canadian author and media commentator.  He is a frequent commentator on social media on cultural and political issues engendering controversy.  He is also a psychologist and a member of the College of Psychologists of Ontario.  A recent Court case addressed the appropriate balance between protecting Jordan Peterson’ freedom of speech with regulatory restrictions to communicate in a professional manner. 

The Ontario Superior Court of Justice dismissed Dr. Jordan Peterson’s application for judicial review from a November 22, 2022, Decision of the Inquiries, Complaints and Reports Committee (“ICRC”) of the College of Psychologists of Ontario (the “College”). The Decision ordered Dr. Peterson to complete a specified continuing education or remedial program (“SCERP”) regarding professionalism in public statements. Dr. Peterson argued the ICRC’s decision did not properly balance his Charter right to freedom of expression with the College’s statutory mandate as required by Doré v Barreau du Québec, 2012 SCC 12 (“Doré”) and that the Decision was not reasonable as it did not meet the standards of “justification, transparency and intelligibility” required by Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 (“Vavilov”).

The Court found the reasons given by the ICRC were transparent, justifiable, and reasonable. In the Decision, the ICRC considered both its mandate and Dr. Peterson’s right to freedom of expression and undertook an analysis that considered the factual background, its concerns regarding Dr. Peterson’s language, his responses to the ICRC Panel, the 2020 complaint which resulted in Dr. Peterson being advised to take coaching on professionalism, his refusal to do so, and the ICRC’s rejection of Dr. Peterson’s own coaching proposal.

Background

The College has been receiving complaints about Dr. Peterson’s public statements since 2018. The ICRC had previously investigated Dr. Peterson’s public statements in 2020 which were alleged to be “transphobic, sexist, racist and [which] were not in keeping with any clinical understanding of mental health”, however, the ICRC did not make any order on his behaviour despite expressing concern that the “manner and tone” of the statement may reflect poorly on the profession. The ICRC noted Dr. Peterson has a responsibility to be mindful of his provocative language and tone and its possible impact on the public’s perception of the profession. This decision indicated there was moderate risk that Dr. Peterson would continue using unprofessional language in his public statements. The ICRC advised Dr. Peterson to undergo coaching by a professional selected by the College regarding the wording of his public statements. He did not heed this advice.

Between January and June of 2022, the College received more complaints about Dr. Peterson’s public statements. Specifically:

1. A tweet on January 2, 2022, in which Dr. Peterson responded to an individual who expressed concern about overpopulation by stating: "You're free to leave at any point."
2. Various comments Dr. Peterson made on a January 25, 2022, appearance on the podcast, "The Joe Rogan Experience". Dr. Peterson is identified as a clinical psychologist and spoke about a “vindictive” client whose complaint about him was a “pack of lies.” Speaking about air pollution and child deaths, Dr. Peterson said: “it’s just poor children, and the world has too many people on it anyways.”
3. A tweet on February 7, 2022, in which Dr. Peterson referred to Gerald Butts as a "prik".
4. A tweet on February 19, 2022, in which Dr. Peterson commented that Catherine McKenney, an Ottawa City Councillor who uses they/them pronouns, was an "appalling self-righteous moralizing thing".
5. In response to a tweet about actor Elliot Page being “proud” to introduce a trans character on a TV show, Dr. Peterson tweeted on June 22, 2022: "Remember when pride was a sin? And Ellen Page just had her breasts removed by a criminal physician."
6. A further complaint about Dr. Peterson's January 2, 2022 tweet, in which Dr. Peterson responded to an individual who expressed concern about overpopulation by stating: "You're free to leave at any point." The further complaint provided a link to a 2018 GQ interview in which Dr. Peterson made a similar comment about suicide.
7. Dr. Peterson's tweet posted in May 2022, in which he commented on a Sports Illustrated Swimsuit Edition cover with a plus-sized model, tweeting: "Sorry. Not Beautiful. And no amount of authoritarian tolerance is going to change that."

At the time of the 2022 complaints, Dr. Peterson held himself out as a clinical psychologist in his X (formerly Twitter) bio as well as during his appearance on Joe Rogan’s podcast. An investigator was appointed in March 2022. A report of the Investigation was provided to the ICRC on May 17, 2022. It was then provided to Dr. Peterson.

The ICRC Decision was released on November 22, 2022. It found that during an appearance on the Joe Rogan Experience, Dr. Peterson “appeared to be engaging in degrading comments about a former client and making demeaning jokes” and expressed concern that by referring to Elliot Page as a woman and deadnaming him and calling Catherine McKenney an ‘appalling self-righteous moralizing thing’ that Dr. Peterson “may be engaging in degrading, demeaning, and unprofessional comments”. The ICRC also stated that referring to the physician who performed Elliot Page's surgery as a “‘criminal’ appears to be inflammatory and unprofessional.” Further, the ICRC was “is very concerned that looked at cumulatively, these public statements may be reasonably regarded by members of the profession as disgraceful, dishonourable and/or unprofessional.”  As  a result, the ICRC directed that Jordan Peterson take coaching on how to ensure his public statements were professional. 

What the Court Said

The issue before the court was whether the Panel’s decision to order Dr. Peterson to complete a coaching program was reasonable.

Dr. Peterson raised two arguments which make the decision unreasonable:

1. That the ICRC failed to conduct an appropriate proportionate balancing of Dr. Peterson’s right to freedom of expression and the statutory objectives of the College as required by the decision of the Supreme Court in Doré; and
2. the Decision fails to meet the standard of “justification, transparency and intelligibility” required by the Supreme Court’s decision in Vavilov and is unreasonable having regard to the facts and the legal rights at stake.

Doré

Under the Doré framework, administrative decision makers are to “ensure Charter protections are upheld to the fullest extent possible given the statutory objectives within a particular administrative context.” This framework is highly contextual.  First, the decision maker must consider the statutory objectives it is seeking to uphold. Then, it must determine how best to protect the Charter value at issue in view of those statutory objectives. This balancing act is awarded significant deference so long as the decision made falls within a range of possible, acceptable outcomes.

In 2018, the SCC noted the Doré framework is intended to be a robust balancing of proportionality. If a decision is not proportionate it cannot be reasonable. On judicial review, the court is to ensure there was a proportionate balancing of the Charter rights and statutory objectives. Even so, a decision made under the Doré framework still attracts deference. The reviewing court does not need to agree with the outcome and the decision maker does not need to choose the option that would impact the Charter right the least so long as the final decision falls within the range of reasonable outcomes.

The Court found the ICRC had properly applied the Doré framework. It considered both the College’s statutory objectives and the impact of the Decision on Dr. Peterson’s right to freedom of expression.

One of the College’s main statutory objectives is to regulate the practice of psychology in the public interest. The Supreme Court has stated that a regulator’s interpretation of the ‘public interest’ based on its own expertise is to be afforded deference. The College requires its members abide by the Canadian Code of Ethics for Psychologists (the “Code”) which has been incorporated into the College’s Standards of Professional Conduct, 2017, (the “Standards”). As a member, Dr. Peterson is required to follow both the Code and the Standards. Importantly for this case, Principle I of the Code states “[r]espect for the dignity of persons is the most fundamental and universally found ethical principle across disciplines, and includes the concepts of equal inherent worth, non-discrimination, moral rights, and distributive, social, and natural justice.”

The Code requires College members to refrain from publicly engaging in degrading comments about others, including jokes. It also urges members to use language which conveys respect for the dignity of each person. The ICRC Panel found that in the context of the Code, Dr. Peterson’s statements appeared degrading, demeaning, and unprofessional. It worried these statements could undermine public trust in the profession and the College’s ability to regulate it.

Off Duty Conduct

Dr. Peterson argued the College was “operating at the very margins of its mandate” as his statements were not made as a clinical psychologist but were “off-duty opinions”. The Code states that personal behaviour of College members can only attract discipline if it undermines public trust in the discipline as a whole or raises questions about the member’s ability to practice.

The Court notes Dr. Peterson’s statements were not made in conversation with friends but made publicly to broad audiences. Further, the Court notes Dr. Peterson is not making these statements in a personal capacity; he holds himself out on Twitter and in his appearances on the Joe Rogan Experience as a clinical psychologist. In his submissions to the ICRC, Dr. Peterson described himself as a functioning as a clinical psychologist “in the broad public space” where he claims to be helping “millions of people” and as he put it, he is “still practicing in that more diffuse and broader manner.”

The Court noted that representing himself as a clinical psychologist while making these statements is important to Dr. Peterson. It adds credibility to his statements. However, the Court also notes Dr. Peterson cannot simultaneously make statements “as a clinical psychologist” and avoid taking responsibility for the risk of harm that flows from him speaking in that trusted capacity. Members of regulated professions take on responsibilities to both their professions and the public. Even when a member is “off-duty” they are still able to harm public trust and confidence in their profession by their statements and conduct.

The Court was satisfied that the ICRC conducted an appropriate Doré analysis and held the Decision “proportionately balanced the competing interests, protecting the public interest in professionalism in communications by members and prevention of harm, while minimally impairing Dr. Peterson’s right to freedom of expression.”

Vavilov

The Court notes that Vavilov does not change the standard of review; it remains a test of reasonableness. Vavilov instructs the reviewing court to focus on the actual decision made including both the decision maker’s reasoning process and the outcome. A reasonable decision is one “made on an internally coherent and rational chain of analysis and is justified in relation to the facts and law which constrain the decision maker.” In this case, the Court found the reasons provided by the ICRC were transparent, intelligible, justifiable, and reasonable.

Dr. Peterson was not facing complaints due to his personal views. Rather, the Decision outlined that it was the language used by Dr. Peterson which raised concerns. It was not whether Dr. Peterson had a right to make the statements or whether those statements were true, but the language Dr. Peterson decided to use while making the statements. The Court stated the ICRC was clear in stating the language used by Dr. Peterson could potentially cause harm by “undermining public trust in the profession of psychology, and trust in the College's ability to regulate the profession in the public interest.” Further, “public statements that are demeaning, degrading, and unprofessional may cause harm, both to the people they are directed at, and to the impacted and other communities more broadly.”

The Court warns that the sufficiency of reasons required by Vavilov should not be used to undermine the deference owed to decision makers.

Reasons Required by Decision Makers

In Vavilov, the Supreme Court stated the breadth of the reasons are expected to reflect the stakes of the decision. Administrative decision makers may be experts in their field, but they are not required to meet the same standards as a judge or lawyer when issuing decisions.

The extent of the ICRC’s reasons must be reviewed in light of its role; it is a screening committee. Screening Committees are not required to provide reasons that explain their decision in full detail. They are not required to meet a standard of perfection, nor are they required to address every topic and argument. The ICRC has three options after an investigation: refer the complaint for discipline; do nothing; or direct remedial action such as a SCERP. None of these options prevent Dr. Peterson from expressing himself or making public statements. As such, the stakes are lower than they would be if Dr. Peterson was facing discipline and the requirements of the ICRC’s reasons are likewise less onerous.

Key Takeaways

This case offers vital insights for professional regulatory bodies grappling with the intricate interplay between freedom of speech and the enforcement of ethical standards.

• The approach in Doré still requires deference be paid to the decision maker. A regulator is considered the expert in the definition of ‘public interest’ when it comes to its own profession. As such, they are owed respect and deference
• Under the Doré framework, there is a balancing act between an individual’s rights under the Charter, and a professional regulator’s obligations to the public. Becoming a member of a regulated profession is a privilege and, in many cases, places a member in a position of trust and authority. There are boundaries and limitations that come along with that privilege. One such limitation is the agreement that a member will abide by their regulator’s code of ethics or standards of practice.
• The limitations placed on regulated members does not always stop when they are off the clock. Members have taken on responsibilities to their profession and the public. Actions taken by regulated members which are contrary to the core values of their profession or which harm the public’s trust and confidence in the profession may lead to regulatory action.
• The ICRC performs a screening function. It did not have the ability to impose discipline on Dr. Peterson. If he chooses not to comply with the remedial order it could result in an allegation of unprofessional conduct. By directing remedial action, the ICRC imposed minimal impact on Dr. Peterson Charter rights. It did not restrict his ability to practice, nor did it impose any restrictions on his ability to make public statements. Disciplinary orders can come with serious consequences for regulated members including the potential for suspension or termination of a member’s licence.
• The reasons provided by an administrative body must reflect the stakes of the decision. Where a decision maker does not have the power for discipline, the reasons given will not be required to be fulsome. However, where a decision maker has the power to strip a regulated member of enrolment in the profession the standards will be much higher.
• This case is another example of regulators being dragged into so-called “culture wars” which can be a huge distraction to regulator’s core mandate.
• Ensuring there is an appropriate balance between regulatory restrictions and freedom of speech for regulated professional remains a sensitive societal and political issue. Critics alleging “regulatory overreach” are getting the attention of some governments in Canada. It is interesting to note that the recent mandate letter issued by the Premier of Alberta, Danielle Smith, to the Minister of Advanced Education directed them to review Alberta’s professional governing bodies “ for the purpose of making recommendations to protect free speech rights of Alberta professionals.“

This case will have importance moving forward as we see more concern about regulated members’ rights under the Charter and allegations of regulatory over-reach. Field Law’s Professional Regulatory Group is available to assist professional regulatory organizations as they navigate these new challenges.