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.


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.

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