Canada: Freedom Of Speech + Professional Discipline: Striking The Balance

In the age of social media, individuals have more opportunities than ever to express themselves and their views in the public sphere. Sometimes the views expressed by regulated professionals could cross the line into unprofessional conduct. Professional regulators thus continue to grapple with the impact of social media on their regulatory functions.

Adding to the difficulty of this task is the impact of the right to freedom of expression, a right which is protected by the Canadian Charter of Rights and Freedoms (the Charter).1 Regulators must be mindful of the impact their actions may have on their members' right to free speech.

This is because issues may arise where an individual's freedom of expression may come into tension with the need of a regulator to regulate the profession in the public interest, for example in cases involving issues such as criticism of the profession, intemperate or inappropriate speech, and other similar issues.

Freedom of Expression

The right to free expression is protected for all individuals by virtue of section 2(b) of the Charter of Rights and Freedoms, which states that everyone has the fundamental freedom of "...thought, belief, opinion and expression, including freedom of the press and other media of communication."

Section 2(b) has been the subject of a significant amount of Canadian case law. As the Supreme Court wrote in 1989, ""is difficult to imagine a guaranteed right more important to a democratic society."2 Generally speaking, section 2(b) has been interpreted broadly, and protects an individual from interference with any activity that conveys or attempts to convey meaning, with some limited exceptions.3 Importantly, the right to free expression includes protection for unpopular or offensive views.4

However, the right to free expression may come into conflict with an individual's professional obligations. While the right is particularly important in the context of criticism of public institutions,5 it is not absolute. Interesting issues arise regarding the extent to which an individual can be disciplined by his/her professional regulator for making statements that would otherwise be protected by section 2(b) of the Charter. Courts have been asked to delineate the proper line between the maintenance of freedom of expression of professionals, while still ensuring that a regulator's ability to regulate the profession and maintain its integrity is not undermined.6

The Regulator's Task – Considering and Balancing Charter Values

Regulators whose activities have the effect of limiting a member's right to express themselves must be balanced against the Charter value of freedom of expression.7

This issue was considered in Doré v Quebec (Tribunal des professions), where the Supreme Court established an analytical approach for regulators to follow in cases where a tension arises between the regulator's mandate and the member's right to freedom of expression.

Gilles Doré is a lawyer in Quebec. During proceedings in the Superior Court of Quebec, Mr. Doré was subject to a number of insulting comments made by the judge. Mr. Doré decided to respond in kind by sending the judge a private letter containing personalized and insulting statements about the judge. The judge reported Mr. Doré to the Barreau du Quebec (the provincial Law Society). A discipline committee of the Barreau du Quebec found that Mr. Doré had engaged in unprofessional conduct by sending the letter to the judge, and suspended him for 21 days. Mr. Doré challenged the disciplinary decision, asserting that his comments should be protected by his right to free speech, and thus he should not have been disciplined.

The Supreme Court concluded that in order for a regulator's decision to be reasonable, it must achieve an appropriate balance between Charter values and the legitimate objectives of the regulator. This is because all administrative decision-makers (including regulators) must act consistently with Charter values.

With this in mind, the Court in Doré established the following analytical framework for an administrative decision maker to apply Charter values when exercising its statutory discretion:

  1. First, the decision maker should consider the objectives of the statutory scheme. A regulator is well-suited to determine matters on a case-by-case basis in light of the decision maker's particular area of expertise and focus.
     
  2. Second, the regulator should ask how the Charter value at issue will be best protected in light of the statutory objectives. This is, in essence, a proportionality exercise, which requires the decision maker to balance the severity of any interference with Charter protections with statutory objectives. 

Regulators will be afforded some leeway, and the proportionality test will be satisfied if the measure falls within a range of reasonable alternatives. In all circumstances, the goal is to ensure that the rights at issue are not unreasonably limited, and that a decision interferes with a Charter right/value no more than is necessary given the regulator's statutory objectives.

On the facts of the case, the Court noted that there is a public benefit in lawyers being able to express themselves about the justice system in general, and that this means that "[p]roper respect for these expressive rights may involve disciplinary bodies tolerating a degree of discordant criticism".8 However, the focus is on balance, and lawyers are constrained by their profession to criticize with "dignified restraint".9

As a result, the Court concluded that the 21-day suspension was reasonable, and "reflected a proportionate balancing of its public mandate to ensure that lawyers behave with 'objectivity, moderation and dignity' with the lawyer's expressive rights".10

The impact of the Doré decision continues to play out in the professional disciplinary sphere. The proportionality exercise is influenced by the type of speech at issue because the case law makes clear that not all speech will receive the same level of protection. The level of protection will diminish where the speech moves farther away from the core values protected by section 2(b), which have been described as including the search for political, artistic, and scientific truth, the protection of individual autonomy and self-development, and the promotion of public participation in the democratic process.11

In contrast, speech which strays far from the purposes of the freedom of expression guarantee, such as speech importing notions of violence, will be viewed as less worthy of protection in the balancing exercise. For example, in Foo (Re), the Review Panel of the Law Society of British Columbia upheld the finding that the statement "I should shoot you... you take away too many kids" made by a lawyer to a Ministry Social Worker was unprofessional conduct. The Review Panel concluded that the finding was proportionate given the fact that the comment was a threat of violence and served no legitimate purpose.13
 

A Recent Example of Balancing in Action: Strom v Saskatchewan Registered Nurses' Association

A recent example of a case involving a direct clash between in interests of a regulator and an individual's freedom of expression is Strom v Saskatchewan Registered Nurses' Association.

The case involved Carolyn Strom, a registered nurse from Saskatchewan. Ms. Strom was critical of the end-of-life care that her grandfather had received at a care facility in Saskatchewan and took to social media to express her concerns. At the time, Ms. Strom was on maternity leave and not working in Saskatchewan. She was not employed at the particular care facility.

Ms. Strom's initial post was on Facebook, and included comments that the staff at the care facility were not "up to speed" on how to approach end of life care, had made her grandfather's last years "less than desirable" and cautioned others to "keep an eye on things". She concluded her post by stating: "The fact that I have to ask people, who work in health care, to take a step back and be more compassionate, saddens me more than you know!".

In response to comments she received on her Facebook post, Ms. Strom posted comments such as the following:

  • ... And this has been an ongoing struggle with the often subpar care given by to my ... Grandparents (especially Grandpa) for many years now... Hence my effort to bring more public attention to it (As not much else seems to be working).
     
  • As an RN and avid health care advocate myself, I just HAVE to speak up!
     
  • ... I am also now asking people to just rethink.... "Why do you do your job?" "Do you actually care about the people you WORK FOR/Care For?" "Or is it JUST A JOB, WITH A PAYCHEQUE?"

Ms. Strom decided to make her Facebook discussion known to the provincial Minister of Health and the provincial Leader of the Opposition, by tweeting them both a link to the discussion. By doing so, she changed her Facebook post privacy status from "Private" to "Public", meaning that the posts were now accessible to anyone who followed the link she tweeted.

The Saskatchewan Registered Nurses' Association asserted that Ms. Strong had engaged in professional misconduct by publicly posting the comments. In particular, it was alleged that she failed to follow proper channels in issuing criticism, publicly called into question the facility and staff causing impact to their reputation, failed to first obtain all of the facts from the facility and care providers, and used her status as a registered nurse for personal purposes.

After a hearing, the Discipline Committee of the Nurses' Association found Ms. Strom guilty of unprofessional conduct. It ordered her to pay a fine of $1,000, and to pay $25,000 for the costs of the proceedings over three years. The Discipline Committee expressly acknowledged in its decision that Ms. Strom's freedom of expression right was engaged, but concluded that any infringement was justified and thus not a breach of the Charter.

Ms. Strom appealed the decision to the Saskatchewan Court of Queen's Bench. The case garnered significant media attention, and brought to light issues regarding a professional's right to freedom of expression, and whether the Nurses' Association had the power to restrict Ms. Strom's freedom of expression.

The Court assessed the matter in detail, and concluded that the Nurses' Association had struck an appropriate balance. In particular, it was reasonable for the Discipline Committee to have concluded that Ms. Strom engaged in professional misconduct. It considered factors such as the purpose of professional discipline, the conclusion that Ms. Strom's comments harmed the reputation of the facility and its staff and undermined public confidence, and that Ms. Strom had invoked her status as a registered nurse in so doing. The Discipline Committee accepted that Ms. Strom was not motivated by malice and concluded that it does not seek to "muzzle" registered nurses from using social media, but emphasized that registered nurses who use social media must conduct themselves professionally and with care.13

In this case, there was evidence that Ms. Strom had not been a frequent visitor at the care facility, and her comments stemmed centrally from information relayed to her by others. She did not ever discuss any concerns with care with people working at the facility. In light of all of these considerations, it was reasonable for the Discipline Committee to conclude that Ms. Strom had engaged in conduct that was "contrary to the best interests of the public or nurses or tends to harm the standing of the profession of nursing".

The Discipline Committee was alive to the right to freedom of expression, and appropriately balanced this right with the need to address Ms. Strom's professional misconduct. The finding of professional misconduct was not because she expressed her concerns, but the manner in which she did so.

The Strom decision has been appealed to the Saskatchewan Court of Appeal, and a hearing is anticipated in the coming year.

BUT, Context Matters!

The Strom case demonstrates that regulators will be given some leeway in determining whether discipline is warranted in a particular case. However, a recent decision from the Supreme Court demonstrates how important a contextual, nuanced analysis is when applying the Doré framework.

The case of Groia v Law Society of Upper Canada reached a different result regarding the reasonableness of discipline. The case involved Joseph Groia, a lawyer in Ontario. During a trial in which Mr. Groia was defending a client against an Ontario Securities Commission prosecution, a number of contentious disputes arose between Mr. Groia and the prosecutors in open Court. Mr. Groia frequently accused the prosecutors of misconduct (though it appeared that much of the disagreement actually resulted from Mr. Groia being mistaken about the law of evidence and the role of the prosecutors).

After the trial concluded, the Law Society disciplined Mr. Groia, alleging professional misconduct based on "uncivil behaviour" during the trial. Mr. Groia appealed. One of his arguments was that he enjoyed freedom of expression to make the statements he made in court. Both the Divisional Court and the Ontario Court of Appeal disagreed with Mr. Groia, and upheld the Law Society's decision to discipline.

However, the Supreme Court concluded differently, and found that based on a multi-factorial, context-specific approach, there needs to be a balance between civility in the court room and the need to act as a fearless and zealous advocate. On the facts of this case, discipline against Mr. Groia was unreasonable.
 
Recently, the Alberta Court of Appeal applied the Doré framework in Zuk v. Alberta Dental Association and College. There, the member, Dr. Zuk, argued that when the College's Hearing Tribunal disciplined him for contraventions of the Health Professions Act and the College's Code of Ethics based on his publications in the newspaper, his book and his websites, the decision infringed his Charter right to free expression.  In balancing Dr. Zuk's freedom of expression against the College's statutory objective of maintaining the integrity and reputation of the profession, the Court of Appeal determined that Dr. Zuk's freedoms were not impaired more than was reasonable necessary. It determined that "given the insulting tone of many statements, it is difficult to see how the Hearing Tribunal could have furthered the goal of ensuring respect for appropriate standards of professional conduct among dentists themselves without sanctioning them".14

Considerations for Regulators

The legal analysis when freedom of expression issues are engaged remains focused on balancing Charter values and the legitimate objectives of the regulator, as set out in the Doré decision.

A multi-factored, context-specific inquiry will remain appropriate and required by the law. This means that regulators need to be aware of, and alive to, concerns regarding freedom of expression when engaging in disciplinary matters. Particularly in cases involving off-duty conduct, regulators need to be attentive to freedom of expression concerns and ensure they do not go too far in disciplining conduct that might be protected by the Charter. That being said, reviewing courts will give some lee-way to regulators to ensure they are able to regulate in the public interest.


* Portions of this article are taken from "Charter Considerations for Administrative Tribunals" by Katrina Haymond, Ayla Akgungor and Leah McDaniel, presented at the Canadian Institute: Advanced Administrative Law & Practice Conference, November 29, 2017.

Footnotes

1 Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter].
2 Edmonton Journal v Alberta (Attorney General), [1989] 2 SCR 1326 at 1336.
3 Irwin Toy Ltd v Quebec (Attorney General), [1989] 1 SCR 927.
4 R v Keegstra, [1990] 3 SCR 697; Saskatchewan (Human Rights Commission) v Bell, 1994 CanLII 4699 (SKCA).

5 See e.g. R v Kopyto, 1987 CarswellOnt 124 (ONCA) at paras 194-96.
6 James T Casey, The Regulation of Professions in Canada (Toronto: Carswell, 2015) at 3-5.

7 Bryan Salte, The Law of Professional Regulation (Markham, Ontario: LexisNexis Canada, 2015) at 391.

8 Ibid at para 65.

9 Ibid at para 68.

10 Ibid at paras 8. 71.

11 Edmonton Journal v Alberta (Attorney General), supra; Canadian Broadcasting Corp v New Brunswick (Attorney General), [1996] 2 SCR 480 at para 63; RJR MacDonald Inc v Canada (Attorney General), [1995] 3 SCR 199 at para 72.

12 Ibid at para 35.

13 Ibid at para 71.

14 Ibid at para 113.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Topics
 
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions