Peterson v. College of Psychologists of Ontario

When can a Professional’s Public Statement Constitute Professional Misconduct?

The question of to what extent a professional body can regulate a professional’s speech without infringing their right to freedom of expression was the central issue in Dr. Jordan Peterson’s challenge of regulatory action by the Inquiries, Complaints and Reports Committee (the “ICRC”) of the College of Psychologists of Ontario (the “College”).[1] It is a question asked both by regulators and regulated professionals who engage with controversial issues on social media: in what circumstances will regulated professionals be held accountable by regulators for public statements?

On June 21, 2023, Dr. Peterson’s case was before a three-judge panel of the Divisional Court. Dr. Peterson asked that the Court overturn the ICRC’s November 2022 decision requiring him to take remedial training regarding professionalism in public statements due to some of his public comments on social media. In a decision released on August 23, 2023 (“Peterson”), the Court dismissed Dr. Peterson’s application for judicial review, finding that the decision of the ICRC was reasonable and its reasons were adequate. This blog will set out some of the key takeaways from Peterson related to the public statements of professionals.

Freedom of Expression under the Charter

Section 2(b) of the Canadian Charter of Rights and Freedoms (the “Charter”) states that everyone has the right to “freedom of thought, belief, opinion and expression, including freedom of the press and other media communication”. Section 1 of the Charter allows for freedom of expression – and other Charter rights – to be limited by law so long as those limits can be shown to be reasonable in a free and democratic society.

The Peterson Decision

Between January and June of 2022, the College received numerous reports about Dr. Peterson’s conduct on social media and in his public appearances, which raised concerns about Dr. Peterson’s professionalism. The Divisional Court’s decision provides some examples of Dr. Peterson’s conduct, such as a tweet from January 2022 in which Dr. Peterson responded to an individual who expressed concern about overpopulation by stating, “You’re free to leave at any point”, or comments made on a January 25, 2022 appearance on the podcast “The Joe Rogan Experience” in which Dr. Peterson spoke about a “vindictive” client whose complaint about him was a “pack of lies”.

The ICRC published its decision in November 2022. The ICRC was concerned that Dr. Peterson’s public statements may be inconsistent with the professional standards, policies, and ethics adopted by the College, and therefore posed moderate risks of harm to the public. The ICRC ordered Dr. Peterson to complete a specified continuing education or remedial program (a “SCERP”) designed to allow Dr. Peterson “to review, reflect on and ameliorate his professionalism in public statements.” The question before the Divisional Court was whether the ICRC’s decision to order Dr. Peterson to complete a SCERP was reasonable.

In determining that the ICRC’s decision was reasonable, the Divisional Court provided the following additional commentary regarding Dr. Peterson’s off-duty speech that helps to provide guidance for both regulated professionals and administrative decision makers.

1. Personal Comments vs. Public Comments

Dr. Peterson asserted that his statements were not made in his capacity as a clinical psychologist, but rather were “off-duty opinions”. The Divisional Court found that Dr. Peterson’s statements were “not personal comments made in conversation with friends or colleagues, but public statements to broad audiences”, referring to his social media, books, and podcast appearance. Further, the Court noted that the argument that Dr. Peterson was speaking in a personal capacity and not as a clinical psychologist was undermined by his own conduct and statements: Dr. Peterson described himself as a clinical psychologist on his Twitter account, and identified himself as a clinical psychologist on the Joe Rogan podcast.

Addressing the responsibilities that all regulated professionals hold, the Divisional Court stated that Dr. Peterson’s representation of himself as a clinical psychologist added credibility to his statements and placed him in a position of trust and confidence in society:

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 him speaking in that trusted capacity.

Even while made “off-duty”, Dr. Peterson’s publications were held to be public statements, and could still harm both public trust and confidence in his profession. The Divisional Court noted that previous cases regarding the conduct of health professionals have recognized limitations on freedom of expression to maintain “boundaries of civility” and professionalism.  

2. Truth of the Publications

Dr. Peterson argued that the ICRC failed to engage with his explanations for the comments at issue, in that they did not determine whether his statements were supported by facts or were his honest opinion. The Divisional Court held that it was not necessary for the ICRC to make these determinations. The concerns with his statements arose “from the nature of the language used, not the validity of his opinions.” The Divisional Court noted that if the language used in the off-duty speech raises professionalism concerns, the ICRC is not obligated to determine the regulated professional’s motivation for making these comments. In this case, for example, it was open to the ICRC to be concerned about Dr. Peterson publicly describing a client as “vindictive”, regardless of whether the client’s complaint against Dr. Peterson was unfounded. The Divisional Court provided a few more examples of this:

• While some of Dr. Peterson’s comments may be characterized as sarcasm, sarcasm is commonly used to insult, demean, and degrade. It was therefore open to the ICRC to be concerned about Dr. Peterson making “demeaning jokes”.

• The ICRC’s concerns regarding Dr. Peterson misgendering and deadnaming a prominent transgender actor, referring to a non-binary city councillor as a “thing”, and referring to a doctor as a “criminal” did not arise from Dr. Peterson’s personal views, but rather from the language that Dr. Peterson used.

• The language used by Dr. Peterson in negative comment on the appearance of a woman on the cover of Sports Illustrated, as well as referring to a political consultant as a “prik”, raised professionalism concerns on its face.

The Divisional Court therefore held that the ICRC’s decision met the requirements of justification, intelligibility, and transparency in their reasons, and that the ICRC was not required to engage with Dr. Peterson’s explanations for his public comments in order to meet this threshold.

3. Ability of Professionals to Engage in Public Discourse

The Divisional Court addressed the central issue, the ability of regulated professionals to engage in public discourse, or to express opinions on controversial matters, by focusing on the language of the comments at issue, rather than the position taken by Dr. Peterson and stated that:

The ICRC Decision does not prevent Dr. Peterson from expressing himself on issues of
interest to him and his audiences; rather, the Decision is focussed on concerns over his use
of degrading or demeaning language, about which he was given advice in 2020. Requiring
coaching following apparently unheeded advice seems a reasonable next step,
proportionately balancing statutory objectives against Charter rights which are minimally
impaired, if they are impaired at all, by the Decision.

The Divisional Court noted that the SCERP was not disciplinary, but remedial, and characterized the SCERP as a “proportionate and reasonable option to further [the ICRC’s] objective of maintaining professional standards” that would also have a minimal impact on Dr. Peterson’s right to freedom of expression.

Ultimately, the Divisional Court dismissed Dr. Peterson’s application for judicial review, finding that the ICRC’s November 2022 decision was reasonable.

Key Takeaway

Peterson adds some additional guidance to the case law relating to social media publications and off-duty speech. The large public audience to which Dr. Peterson’s speech was directed, the language used in his publications, and his identification of himself as a clinical psychologist were three major factors that led to the determination that the off-duty speech could be properly considered by the ICRC. Moreover, the Divisional Court held that the “truth” of these statements, and Dr. Peterson’s motivation for this speech, were not factors that the ICRC had to engage with.

Regulated professionals should take care to ensure that their publications – including social media publications – meet the standards of their profession and that the language used will not be viewed as either demeaning or degrading. Despite that thoughts or beliefs may be published in a personal capacity, professionals may face regulatory consequences notwithstanding their Charter right to freedom of expression. Peterson provides a concrete example of just that.

[1] Peterson v. College of Psychologists of Ontario, 2023 ONSC 4685.