On Wednesday, August 23, the Ontario Superior Court of Justice Divisional Court dismissed Dr. Jordan B. Peterson’s appeal against the College of Psychologists of Ontario (CPO), which had accused him of unprofessional conduct and ordered him to undergo social media re-education or risk losing his license.
The appeal by Peterson came in the form of a request for judicial review of the CPO’s order. Unfortunately, in a 17-page decision, a three-judge panel concluded that the application for judicial review should be dismissed, thereby upholding the CPO’s original order for social media training.
While there is much to question in the decision, I believe these can be grouped into three themes that set an unfortunate precedent in the direction of curtailing freedom of speech in Canada.
In this article, I’d like to analyze those themes to show how and why I believe them to be problematic. First, however, I will provide a brief recap of the situation, for anyone reading who may be unfamiliar with this case.
According to Peterson, the CPO has been levying accusations against him and conducting investigations into his conduct since 2017, which coincides with his rise to fame. In an attempt to make the entire current process against him transparent to the public, Peterson has published a series of documents online that focuses on the accusations against him from 2022, since those are the ones with which the CPO is currently concerned.
In these documents Peterson notes that not once in his 20 years as a clinical psychologist was he ever investigated by the regulatory body. It is also important to note that not one of the current complainants has ever been a client of Peterson’s, as the CPO allows anybody from anywhere in the world to submit a complaint against a clinical psychologist.
Throughout 2022, several complaints were sent to the CPO regarding some of Peterson’s tweets on Twitter/X. The complainants asserted that these tweets were “degrading, demeaning, and unprofessional” and “posed moderate risks of harm to the public,” including “undermining public trust in the profession of psychology,” and that they “may also raise questions about Dr. Peterson’s ability to appropriately carry out his responsibilities as a registered psychologist.”
Some of the tweets in question are political in nature, others are directed at specific people, but all are considered by the CPO and the complainants to express opinions that, for lack of a better term, are simply mean.
- A tweet in which Peterson refers to Gerald Butts, a Canadian political consultant, as a “prik.”
- A tweet in which Peterson calls Catherine McKenney, an Ottawa City Councillor who uses they/them pronouns, an “appalling self-righteous moralizing thing.”
- A tweet calling Elliot Page Ellen Page and stating that the doctor who removed her breasts is a “criminal physician.”
- A tweet in which he says a Sports Illustrated plus-size cover model is “not beautiful.” And that “no amount of authoritarian tolerance is going to change that.”
- A complaint against his entire appearance on an episode of the Joe Rogan Experience podcast.
To summarize, the CPO received complaints about the above-mentioned tweets and JRE appearance by Peterson, and after an investigation by their Inquiries, Complaints and Reports Committee (ICRC), decided that he should “complete a specified continuing education or remedial program (a ‘SCERP’) regarding professionalism in public statements.” The cost of this remedial program was to be born by Peterson himself, and “failure to complete this program, at his own expense and to the coach’s satisfaction, may result in an allegation of professional misconduct and the commencement of disciplinary proceedings by the College.”
Ontario Superior Court of Justice Divisional Court Decision
On to the decision. As I mentioned above, there are three aspects of the court’s decision to uphold the CPO’s order that I find troublesome. These are the lack of specified harm that Peterson has caused; the assertion that language and the content of that language can somehow be separated in matters of freedom of speech; and the fact that in Canada rights and freedoms can in fact be curtailed by regulatory bodies (!). This last issue is of course not specific to the court’s decision against Peterson, but rather illustrates how fragile fundamental rights are and how easily they can be curtailed depending on the language (there we go again) of a country’s constitution.
There are certainly more questionable issues than just these three in the court’s decision, but in this article I would like to focus on the items I mentioned above.
Writing for the three-judge panel, Judge J. Schabas states that the decision by the CPO in ordering Peterson to undergo social media re-education is “transparent, logical, and provides a coherent chain of reasoning” based on the facts of the case. This idea that the decision must be transparent, logical, and coherent is based on a precedent set by Canada’s Supreme Court in the case Canada (Minister of Citizenship and Immigration) v. Vavilov. In addition, the court found that the CPO’s order for social media training “balanced the impact of imposing a SCERP on Dr. Peterson’s right to freedom of expression.” This idea of proportionality is also based on a precedent set by Canada’s Supreme Court in a case called Doré v. Barreau du Québec.
It is difficult to see how the CPO’s decision for Peterson to undergo social media re-education is, in fact, logical, coherent, and proportional. As mentioned above, the argument against Peterson is that his Tweets were “degrading, demeaning, and unprofessional” and “posed moderate risks of harm to the public.” In addition, his statements made on the Joe Rogan Podcast were deemed “problematic, unethical, and unprofessional,” by that complainant.
Unfortunately, it’s not at all clear what harm Peterson has actually caused. And since that is not clear, it can’t be argued that the decision against him is logical, coherent, and proportional.
The CPO and the court’s decision claim that the “harm” includes “undermining public trust in the profession of psychology”; questions regarding “Dr. Peterson’s ability to appropriately carry out his responsibilities as a registered psychologist,” and harm to those the tweets were directed at and “to the impacted and other communities more broadly.”
Let’s look at each of these separately to assess the harm that might have been caused.
The CPO is arguing that Peterson’s statements undermine public trust in the profession of psychology. But it does not seem that they have considered that Peterson’s points of view, especially when it comes to political and cultural issues, have actually bolstered the profession of psychology. Peterson’s books have sold millions of copies, his social media accounts have millions of followers, and his YouTube account has 7.5 million subscribers alone as of this writing.
Looking at just his Twitter/X account, since it’s primarily his tweets that are in question, we can see that he has 4.7 million followers on that platform. Indeed, his tweet commenting on the Sports Illustrated cover model appears to have almost 58,000 likes as of this writing. Whatever you think of that cover model, it’s likely that those 58,000 people agreed with Peterson’s view that our society should not glorify being overweight or obese. That is one interpretation of Sports Illustrated‘s intentions with this particular cover. You could argue for another interpretation, of course, but that doesn’t make Peterson’s take less valid.
After the backlash caused by that tweet, Peterson commented to the Telegraph: “The use of that model, who was not athletic (remember: SPORTS Illustrated) was manipulative economically and in relation to the model herself (although she participated in her own exploitation).” And further, “Beauty is an ideal. Almost all of us fall short of an ideal. I am not willing to sacrifice any ideal to faux compassion. Period. And certainly not the ideal of athletic beauty.”
Has Peterson undermined public trust in the profession of psychology for anyone who agreed with this take? Or for any of the millions of individuals who regularly like and comment on his tweets? Given his popularity, it’s difficult to make that case with any degree of certainty.
Next is the harm vis a vis Peterson’s ability to carry out his responsibilities as a registered psychologist. Unfortunately (or fortunately in the CPO’s view) Peterson hasn’t been a practicing psychologist since 2017, so there is no risk there to any current or potential patients, since he hasn’t any.
Finally, we have the harm allegedly caused to those the tweets were directed at and their broader communities. It appears that several of Peterson’s tweets in question, such as the one calling Butts a prick and the tweet concerning Page have actually been deleted.* Perhaps Peterson did indeed feel some remorse regarding those tweets, his Twitter account having been temporarily suspended over the Page tweet last year. If that is the case, then it’s hard to see how those tweets can cause any more harm since they no longer exist on the platform.
One might argue that it doesn’t matter if the tweets are deleted since the damage has already been done. Again, I ask, what damage? What harm? At best we can assume that the “harm” in question is hurt feelings, but this is not specified in the court’s decision. Did Butts have his feelings hurt because he was called a prick? Is Page’s mental state that fragile that she would not be able to endure someone using her birth name? Are we to assume that people today, or certain groups of people, are simply not resilient enough to deal with a mean comment thrown their way? (As Jonathan Haidt and Greg Lukianoff have noted, that just might be the case, but that’s a topic for another article.)
And if you really wanted to go deep on this particular objection, you could certainly argue that Peterson aiming those comments at those individuals actually bolstered their resilience and mental well-being for the long-term, since being subjected to challenges in life is what makes us stronger and better able to deal with said challenges. Indeed, we know that when children are not subjected to any challenges at all and are over-protected, they turn into anxious teens and adults.
While perhaps even Peterson and his lawyers would not use this particular argument in his defense, it is just as logical and coherent as the idea that he has caused an unidentified “harm” to those individuals (after all, how do you quantify hurt feelings), and so must undergo re-education to ensure he never “harms” (hurts anyone’s feelings?) ever again. The term “harm”, unless further qualified, is vague, empty, and meaningless.
Therefore, since it’s not clear what harm Peterson has actually caused, it can’t be argued that the CPO’s decision for him to undergo social media re-education is logical, coherent, and proportional. Is someone’s freedom of speech to be curtailed simply because they said something potentially mean? How can we know for sure that social media training is a proportional punishment when the harm caused has not been identified? Proportional to what then? The CPO and the judges might believe that hurt feelings and social media training line up, but the argument for that simply hasn’t been made as the decision doesn’t go so far as to specify “hurt feelings” as the “harm” caused, if that is even the “harm” that they mean. The court’s decision stops at “harm” as if that term is self-explanatory in a legal context and doesn’t need further specification.
Form vs. Content
The second problematic aspect of the CPO’s and the court’s decision is the assertion that the CPO’s concern “arose from the language Dr. Peterson used, not his personal views.”
This statement describes the crux of the matter, since Peterson is ordered to undergo social media re-education due to his “degrading, demeaning, and unprofessional,” tweets. According to the CPO, Peterson acted unprofessionally on Twitter and the JRE Podcast, therefore he must learn how to act professionally on Twitter and in public. He’s allowed to express his views, but he must do so in non-degrading, non-demeaning, and professional ways.
The CPO even admits as such, as quoted in the court’s decision:
“The Panel in no way disagrees that the Canadian Charter of Rights and Freedoms guarantees Dr. Peterson a right to freedom of expression. However, the Panel believes that as a Member of the College of Psychologists of Ontario, Dr. Peterson also owes a duty to the public and to the profession to conduct himself in a way that is consistent with professional standards and ethics.”
We’ll come back to the meat of this particular quote later. What I’d like to focus on for now is the fact that the CPO and the court acknowledge on the one hand that Peterson has the right to freedom of expression, but on the other hand state that it’s not his views that are the problem but rather the language that he used.
These are related because expression, whether it’s speech, or another medium, such as song, visual art, or dance, is always the combination of form and content. It’s not just the technical choreography in a dance that matters, for example the movement of an arm or a leg, but how that arm or leg is moved. Is it a robotic movement? Is it a graceful flutter of the arm or flick of the hand? The how matters just as much as the what in terms of conveying meaning. In terms of expression.
Therefore it is illogical to assert that Peterson has freedom of speech while also asserting that he must always express that speech in a pre-defined (by the CPO) manner. This is not actual freedom of speech. It is curtailment of freedom of speech.
Take the Page tweet for example, in which Peterson called her doctor a criminal physician. Is there a professional way to call someone a criminal? Is there a professional way to “dead name” someone as the left likes to call it. No. And if the argument is then that Peterson shouldn’t have tweeted those things in the first place since there’s no professional way to say, or tweet, them, well then we’re back to curtailing freedom of speech.
Administration Above Rights
Finally, there is an aspect of the court’s decision that, as I mentioned in the introduction, is not unique to this case, but rather illustrates the problematic way freedom of speech is conceptualized in Canada. Because of this conceptualization, regulatory bodies are given a lot of power over their members. As such, it was already unlikely that Peterson would have succeeded in his appeal.
First, it’s important to note the wording regarding freedom of speech (and other fundamental freedoms) in Canada’s Charter of Rights and Freedoms, which forms part of the country’s Constitution.
That wording is as follows:
“The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.”
We might contrast this to the First Amendment of the United States:
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”
So already in Canada we’re starting from a point where our fundamental freedoms are not so fundamental at all, rather they can be “subject to reasonable limits.” This wording is problematic because, of course, what is reasonable to one person might be completely unreasonable to another. This has to do with Peterson’s case because there is also precedent in Canadian jurisprudence that allows fundamental freedoms to be subject to the dictates of regulatory bodies, and it certainly seems to stem from that wording in the Charter. And if the one doesn’t stem from the other, certainly that wording doesn’t help things.
Indeed, the very first paragraph of the court’s decision against Peterson states:
“When individuals join a regulated profession, they do not lose their Charter right to freedom of expression. At the same time, however, they take on obligations and must abide by the rules of their regulatory body that may limit their freedom of expression.”
The precedent I mentioned above, Doré v. Barreau du Québec, comes back into play here as it has to do with how to protect Charter rights “in the context of adjudicated administrative decisions.” The court’s decision further states: “The Doré framework is ‘concerned with ensuring that Charter protections are upheld to the fullest extent possible given the statutory objectives within a particular administrative context.’”
The key line here is “given the statutory objectives within a particular administrative context.” In other words, in Canada, it’s not the “administrative context” that must bow to Charter rights and freedoms, rather it’s the Charter rights and freedoms that must bow to the administrative context. One could imagine that if our Charter were worded another way, this might not be the case.
But giving this concept the most charitable interpretation, we might say that what the judges mean is that of course you don’t lose your fundamental freedom of speech in Canada by becoming a member of a regulated profession, but should you choose to become such a member you voluntarily take on an extra moral duty to moderate your speech to the benefit of that profession.
For example, one could argue that you have every right to lie about whatever you please publicly, but by becoming a member of a regulated body you promise not to lie about your credentials and qualifications, or about the services that you provide within that profession, to take just two examples from the CPO’s Standards of Professional Conduct.
But this is where things get muddy. Even if it is reasonable to expect professionals to, in some cases, moderate their speech, such as by not lying about the services they provide, this moderation of speech can in no reasonable way be extended beyond the strictest professional boundaries to that individual’s personal life. Unfortunately, the CPO, which has as a governing document the Canadian Code of Ethics for Psychologists, does extend its moderation efforts beyond the clinical setting, stating that psychologists shall “not engage publicly (e.g., in public statements, presentations, research reports, with primary clients or other contacts) in degrading comments about others, including demeaning jokes based on such characteristics as culture, nationality, ethnicity, colour, race, religion, sex, gender, or sexual orientation.”
Aside from the fact that Peterson’s tweets did not discriminate against anyone based on the above criteria (e.g. calling someone a prick, or stating that someone is not beautiful does not discriminate against their culture, nationality, ethnicity, colour, race, religion, sex, gender, or sexual orientation), the court’s decision against Peterson seems to think that this extension of moderation efforts beyond the clinical setting is completely valid and normal. This is again likely due to the precedent already set in Canada.
That’s rather a lot of power to give a regulatory body over its members. And that, in my view, is a big problem. Once you’ve extended a regulatory body’s powers over its members to their private lives, you’ve effectively undermined their fundamental rights and freedoms.
This undermining is further illustrated in the court’s decision when Schabas states, again quoting from precedent, that a regulatory body’s disciplinary efforts “need not be assessed against a standard of perfection,” that decision-makers need not “choose the option that limits the Charter protection least,” and that “administrative justice will not always look like judicial justice.”
These statements are absolutely wild, as you would think, for example, that a regulatory body would have to choose the option that does limit the Charter right the least.
Further quoting from the Vavilov precedent:
“Reasons must be read ‘in light of the history and context of the proceedings in which they were rendered,’ including the evidence and submissions of the parties. As the Court continued at para. 94 of Vavilov, ‘[t]his may explain an aspect of the decision maker’s reasoning process that is not apparent from the reasons themselves, or may reveal that an apparent shortcoming in the reasons is not, in fact, a failure of justification, intelligibility or transparency.’”
This, again, is quite troubling, stating as it seems to that a regulatory body’s disciplinary reasoning may be upheld even in light of apparent shortcomings in said reasoning.** Shortcomings in reasoning would certainly, to me, indicate a failure of justification and intelligibility! Again, it’s quite a lot of power to give to regulatory bodies in Canada.
To conclude, I believe this case against Peterson sets an unfortunate precedent regarding the curtailment of freedom of speech in Canada.
First, punishing someone for causing “harm”, when that harm is never specified (and likely can’t be specified), undermines the very idea that we are innocent until proven guilty. The vague notion of harm is too subjective to be of any value in a legal or administrative context. If you can’t even name the thing, how do you know what you’re fighting against? And if anyone can be accused of harm, then we end up with a society in which individuals will self-censor so as not to be accused thereof. Indeed, we’re probably already there.
Second, the idea that form and content can be separated in matters of expression is just a workaround to enabling censorship. The idea that you’re allowed to say what you like, as long as you say it how we like, is not freedom at all.
And finally, based on the legal precedents used in Peterson’s case, and the unfortunate wording of Canada’s Charter, Canadians find themselves in a system in which their fundamental freedoms are simply not guaranteed at all. And if they weren’t already, regulatory bodies can now be certain that the power to curtail those freedoms lies completely in their hands. Peterson had the means to fight the CPO on this order, but not all psychologists will have that kind of money. Again, how many will now simply censor themselves?
As of this writing, Peterson has stated publicly that he will accept the court’s decision and undergo the CPO’s ordered social media training, but that he will endeavour to make that process as public as possible, because “if they think they’re going to do it in secret, they’ve got another thing coming.”
Now that’s someone who is not afraid to use his voice.
*If this is incorrect, please let me know!
**This line is so incredibly wild to me that I’m convinced I must have understood it wrong. If I have, please let me know!