On August 23, 2023, Ontario's Superior Court of Justice released its decision in Peterson v College of Psychologists of Ontario. Justice Schabas, writing for the panel, dismissed Dr. Jordan Peterson's judicial review application of a decision by the College of Psychologists of Ontario's ("College") Inquiries, Complaints and Reports Committee ("ICRC"). The subject matter of the ICRC decision and the subsequent judicial review was not the clinical practice of Dr. Peterson, but public comments he had made. The case raises important questions regarding when and to what extent a College may take action with respect to a registered member for conduct not directly related to the practice of the profession. More specifically, it deals with the issue of when a health professional's public statements may be viewed by a health professional regulator as unprofessional conduct.
Dr. Peterson is a registered member of the College and has been since 1999, despite no longer having a clinical practice and not having seen patients since 2017. While Dr. Peterson described himself to the ICRC as an author, podcaster and YouTube content producer, he was found to have referred to himself in public statements as a clinical psychologist.
Dr. Peterson's application for judicial review sought to challenge the decision of the College's ICRC. It is important to note that in a judicial review, the court is not considering what decision ought to have been made or conducting an appeal of the decision. Rather, the issue before the court is only whether the decision of the administrative tribunal, in this case the ICRC, was within a range of possible conclusions that would reasonably have been open to the decision maker.
The ICRC is a screening body. It does not hold hearings in which evidence is introduced and tested. While it may refer a matter to a hearing by a disciplinary committee, it also has powers to take other actions which are, in theory, remedial.
The ICRC, after considering the public comments complained about and past considerations of Dr. Peterson's conduct following previous complaints, ordered Dr. Peterson to complete a specified continuing education or remedial program, often referred to as a SCERP, regarding professionalism in public statements.
The ICRC's decision was a result of an investigation into statements made by Dr. Peterson in public forums (e.g. twitter and comments made on a Joe Rogan podcast). They referred to the statements as "degrading, demeaning and unprofessional" and found that some statements may be reasonably regarded by members as "disgraceful, dishonourable or unprofessional," posing a moderate risk of harm, including by undermining the public trust in the profession of psychology and trust in the College's ability to self-regulate in the public interest.
The remediation ordered by the ICRC required that he engage in coaching as directed. The coaching was "to review, reflect on and ameliorate his professionalism in public statements" and would be concluded when the appointed coach considered the coaching to have had the intended effect. The ICRC's decision warned that a failure to complete the coaching program within the specified period of time and with the costs to be borne by Dr. Peterson could result in a referral to the College's disciplinary committee for a hearing of the issues in question.
In respect of Dr. Peterson's comments that the statements were not made wearing his psychologist's hat, but were "off duty opinions," Justice Schabas stated that the statements at issue were not made in conversation with friends or colleagues, but in public forums and to broad audiences. These statements were found by the ICRC to be contrary to the Canadian Code of Ethics for Psychologists, which was adopted by the College and incorporated into its standards of professional conduct. Dr. Peterson asserted that "[p]ersonal behaviour [of a member] becomes a concern... only if it is of such a nature that it undermines public trust in the discipline as a whole or if it raises questions about the psychologist's ability to carry out appropriately his/her responsibilities as a psychologist" (para 46). Justice Schabas rejected Dr. Peterson's argument that he was speaking in a personal capacity and not as a clinical psychologist, noting Dr. Peterson's own references to himself in these contexts as a clinical psychologist. At paragraph 49 of the decision, Justice Schabas stated:
In short, while his counsel may argue that Dr. Peterson's comments are "off duty" and outside his role as a psychologist, Dr. Peterson doesn't see it that way. To the contrary, representing himself as a clinical psychologist when expressing his views is important to him. It also adds credibility to his statements since, as a regulated health professional he holds a position of "trust, confidence and responsibility" in society: Ross New Brunswick School District No 15, 1996 CANLII 237 (SCC), [1996] 1 S.C.R. 825, at paras. 44-451. But Dr. Peterson cannot have it both ways; he cannot speak as a member of a regulated profession without taking responsibility for the risk of harm that flows from his speaking in that trusted capacity.
Freedom of Expression – Charter Right
In dismissing the application, Justice Schabas noted that when individuals join a regulated health profession, although they do not lose their Charter protections to freedom of expression, they take on obligations and must abide by the rules of their regulatory body that may limit their freedom of expression. Justice Schabas stated that he was:
satisfied that the [ICRC] conducted an appropriate Dore [analysis]. It addressed first its statutory mandate and then considered Dr. Peterson's Charter right to freedom of expression. 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.
Justice Schabas found the ICRC decision "adequately and reasonably considered Dr. Peterson's statement in the context of the College's statutory mandate to regulate the profession in the public interest. It considered and proportionately balanced the impact of imposing a SCERP on Dr. Peterson's right to freedom of expression protected by the s.2(b) of the Canadian Charter of Rights and Freedoms." The Court noted that the SCERP is not disciplinary, but rather remedial in nature (though it noted that a SCERP is not benign since it will appear on the public register) and does not prevent Dr. Peterson from commenting on controversial topics.
Potential Impact
The Peterson decision will impact considerations for policy makers, regulators and regulated professionals across Canada. Although its direct legal guidance is limited in many ways to the regulation of psychologists in Ontario and the specific facts underlying the decision, including the language Dr. Peterson used and the large public audience of the comments, it will send a clear message to health professionals that the language they use and how they identify themselves in a public forum are factors that are likely to be considered by a regulator. For policy makers, the ICRC decision and the court's limited role in the review of such may well lead to a reconsideration of when and to what extent a regulator is appropriately positioned to intervene respecting expression, particularly when it has little direct connection to the practice of a profession.
Footnote
1. Ross [v.] New Brunswick School District No. 15, 1996 CANLII 237 (SCC), [1996] 1 S.C.R. 825, at paras. 44-45
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