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<< back to all ArticlesRegulated Professionals and Freedom of Expression
On October 23, 2024, the Government of Alberta released a statement announcing the launch of an engagement to solicit input from regulated professionals about the regulation of individual freedom of expression and compulsory training going beyond the scope of professional practice. The announcement indicates the impetus for this initiative is grounded in a commitment to protecting the civil liberties of Albertans. Premier Danielle Smith stated “Organizations that regulate professionals must strike a balance that upholds competence and ethics without restricting members’ rights and freedoms.” Mickey Amery, Minister of Justice and Attorney General, indicated that the Government has heard from professionals facing disciplinary action for expressing personal beliefs and opinions unrelated to professional work. He expressed concern that this could result in self-censorship and impact a professional’s ability to express opinions freely. This announcement follows the November 2023 release of the Public Health Emergencies Governance Review Panel final report, which examined the legislation guiding Alberta’s response to COVID-19, and in Chapter 7 recommended defining professional freedom in legislation to include the right for regulated professionals to engage in the exercise of their profession and in free enquiry and public debate without doctrinal, ideological or moral constraint, including institutional censorship.
The engagement will involve eleven ministries who oversee 118 professions and trades, and will gather input from professional regulatory bodies, regulated professionals, other organizations, associations, and experts. Specifically, input will be sought “on whether regulatory oversight goes beyond professional competence and ethics in areas such as freedom of expression and opinion, training not related to professional competence, vexatious and bad faith complaints, third-party complaints and protection for those holding other roles in addition to their role as a regulated professional.”
The line between personal opinions expressed by a professional and their obligation to uphold the integrity of the profession can sometimes be blurred. Many will be aware of high profile cases and news stories which illustrate the clash between professional obligations and personal views. Real world examples of the type of interactions which may attract scrutiny under this government initiative include the following:
- The College of Psychologists of Ontario received complaints about comments made by a regulated member which were “degrading, demeaning and unprofessional”. The matter was referred to an inquiry committee who ordered the professional to complete specified continuing education or remedial program regarding professionalism in public statements. The decision was upheld by the Ontario Superior Court of Justice and leave to appeal was denied by the Ontario Court of Appeal and the Supreme Court of Canada.
- In response to the Call to Action 27 from the Truth and Reconciliation Commission of Canada, the Law Society of Alberta required Alberta lawyers to complete mandatory legal education on Indigenous cultural competency. In October 2022, a petition proposed a resolution to remove the Rule permitting the Law Society to mandate legal education of any kind. At a special meeting in February 2023, a majority of voting lawyers voted to keep the Rule.
- An Ontario doctor was barred from providing exemptions for COVID-19 vaccines and face masks after he was alleged to have spread misinformation about the pandemic. In 2023, his regulator found he had engaged in disgraceful, dishonourable or unprofessional conduct, amongst other matters, in part for communicating misleading, incorrect or inflammatory statements regarding the COVID-19 pandemic and related issues.
- A nurse on maternity leave posted comments on her Facebook page about the care her grandfather had received during his final days in a long-term care facility. She was charged and found guilty of unprofessional conduct. The Court of Appeal of Saskatchewan overturned the findings against her determining that the decision of the discipline committee unjustifiably infringed her Charter right to freedom of expression.
- Professionals have been found guilty of unprofessional conduct for websites or other internet postings in which they criticize the disciplinary process of their regulatory body. Such conduct has been found to undermine the integrity of the profession, recognizing the role of self-regulated professions to protect the public interest. The Court of Appeal has recognized the Charter protections for freedom of expression in reviewing such conduct.
- There have been cases referred to professional disciplinary hearings where professionals have sued or threatened to sue a complainant for defamation after the complainant filed a complaint against the professional with their regulator.
Regulators will want to consider the implications and potential for unintended consequences from restricting a regulator’s ability to review the conduct of their registrants in expressing opinions. There are currently protections in place as the courts and tribunals have recognized that there are Charter protections for freedom of expression. In addition, there generally has to be a nexus between the opinion expressed and the registrant’s professional obligations before an opinion can attract sanctions by a regulator. This engagement will raise important questions for regulators. Regulators should seek to provide input to ensure their perspectives are considered. Some professions can expect to be excluded from the review if they are not self-regulating, their legislation is not yet in force, they do not handle complaints or disciplinary action, or they have little role beyond certification. Although the results of the engagement will no doubt impact next steps, this initiative raises questions about where the line falls between professional obligations, conduct that harms the integrity of the profession and the role of self-regulated professions in protecting the public.
This newsletter is for information only and does not constitute legal advice.
