Aug 25, 2023
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Ontario’s Divisional Court upheld a decision of a panel of the College of Psychologists of Ontario’s Inquiries, Complaints and Reports Committee (“ICRC”) to require Jordan Peterson to undergo a coaching program regarding professionalism in public statements. The Court dismissed Peterson’s application for judicial review in Peterson v College of Psychologists of Ontario, 2023 ONSC 4685, finding that the ICRC’s order only minimally impaired Peterson’s Charter right to freedom of expression, in a manner proportionately balanced with the College’s statutory mandate to protect the public.

The ICRC found that a number of public statements made by Peterson on Twitter and the podcast The Joe Rogan Experience might reasonably be regarded by members of the profession as disgraceful, dishonourable and/or unprofessional and posed a moderate risk of harm to the public (i.e. undermining public trust in the profession and calling into question Peterson’s ability to appropriately carry out his responsibilities as a registered psychologist). Peterson’s statements included appearing to make degrading comments and demeaning jokes about a former client on the podcast, misgendering and using the dead name of Canadian actor Elliot Page, and referring to a politician as a “thing.”

The ICRC ordered a specified continuing education or remedial program (“SCERP”), requiring Peterson to enter a coaching program with an individual identified by the College focused on reviewing, reflecting on and ameliorating his professionalism in his public statements. Notably, Peterson was the subject of a prior ICRC decision in 2020 which resulted in advice from the Committee about using a respectful tone and manner in expressing public comments and opinions.

The Court found that the ICRC proportionately balanced Peterson’s Charter right to freedom of expression enshrined in s. 2(b) of the Charter and the values contained therein with the statutory objective of the professional regulator to regulate the profession in the public interest, consistent with the Supreme Court of Canada’s decision in Doré v Barreau du Québec, 2012 SCC 12. As a member of the College, Peterson was obliged to follow its Canadian Code of Ethics for Psychologists and Standards of Professional Conduct, 2017, including by not engaging in unjust discrimination and promoting non-discrimination. The Code required that members not engage publicly in degrading comments about others, including demeaning jokes based on characteristics such as culture, nationality, ethnicity, colour, race, religion, sex, gender or sexual orientation.

The ICRC found a number of Peterson’s public statements appeared degrading, demeaning and unprofessional, and that there was a public interest in members of the College avoiding such language. It was irrelevant to the College’s review whether or not the statements were supported by facts or were his honest opinion, as its focus was on the language used. It also did not matter that Peterson’s opinions were expressed in an “off-duty” capacity, as he made the public statements to broad audiences, and he represented himself as a clinical psychologist on his Twitter and on the podcast. In any event, there is a long line of jurisprudence confirming that off-duty statements and conduct can still harm public trust and confidence in the profession.

Turning to the balancing exercise, the ICRC properly found Peterson’s freedom of expression was engaged and balanced it with his duty to the public and profession to conduct himself in a manner consistent with professional standards and ethics.

The Court deferred to the ICRC, and found that it reasonably concluded that a SCERP was a proportionate and reasonable outcome, which would both promote the College’s statutory mandate while having a minimal impact on Peterson’s right to freedom of expression. The impact was minimal, as a SCERP is a remedial order, not a disciplinary finding. The ICRC’s decision would not prevent Peterson from expressing himself, and instead focuses on his use of degrading and demeaning language. Coaching was an appropriate next response, after Peterson had failed to heed the ICRC’s advice in 2020.

           Advice for Self-Regulated Professionals

While this decision has garnered considerable publicity, it does not represent a change in the law, and instead is consistent with prior jurisprudence in respect of off-duty conduct and the higher standards expected of self-regulated professionals. Self-regulated professionals can take this decision as further affirmation that although they may engage in off-duty public discussions about controversial topics, they must do so in a manner that does not violate their College’s ethics and standards, which would include avoiding discriminatory or degrading language. This is because the professional standards that apply to self-regulated professionals while “on-duty” will be applied to off-duty conduct as well.

Freedom of expression is not an unlimited right, and in the context of professional regulation, it may be limited in a manner which is minimal, and proportionate to the public interest.