Christine Van Geyn

CCF reaction to result in Jordan Peterson freedom of expression case

Post author:The CCF
Post published:August 23, 2023
Post category:Press Releases

TORONTO: The Canadian Constitution Foundation (CCF) is disappointed in the result in the judicial review of a case between public intellectual Dr Jordan Peterson and the College of Psychologists of Ontario. The dispute is over professional penalties, in the form of mandatory training, imposed on Dr Peterson by the College. This order for training was a result of public statements Dr Peterson had made on social media. The comments did not relate to the practice of psychology. The complaints were made by members of the public, not by any individuals who Dr Peterson had ever treated as a patient.

The CCF was an intervener in the judicial review, arguing that professionals have private lives and regulators may not discipline for off-duty conduct that lacks a clear nexus to the profession. Where off-duty conduct engages a Charter right, like freedom of expression, regulators have a heightened duty to ensure they have given full effect to the Charter protection.

“We are disappointed in this result, which we think could have a chilling effect on people in other regulated professions, like doctors, lawyers, teachers and accountants,” said CCF Litigation Director Christine Van Geyn. “Professionals should not have to soft pedal their speech for fear that activists will weaponize regulatory bodies so that unpopular speech is penalized, even when there is no connection between that speech and the profession.”

The Divisional Court did not accept Dr Peterson’s argument that his comments were “off duty” and outside his role as a psychologist. Writing for the court, Justice Schabas found that Dr Peterson “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.”

“We hope that Dr Peterson will appeal this result, which will have long lasting impacts beyond his case. The right to freedom of expression must be given more weight than the court gave it here, and the mere assertion of risk of harm is not enough. While controversial and inflammatory, there is no suggestion that any of the people Dr Peterson made comments about were harmed in any way, and indeed, they were not the source of the complaints. Complaints were made by members of the public who simply did not like what Dr Peterson said, or worse, how he said it. This is not a sufficient basis for action by the regulator when weighed against Dr Peterson’s constitutional right to freedom of expression,” said Van Geyn.

The CCF is represented in this case by George Avraam, Ahmed Shafey and Juliette Mestre of Baker McKenzie LLP. The CCF is grateful for their hard work and diligence on this case. If Dr Peterson appeals, the CCF will seek leave to intervene.

I want to give you an important update about the Emergencies Act inquiry and some information about how you can personally contribute to the inquiry and hold the government to account.

The use of the Emergencies Act was illegal, and the Canadian Constitution Foundation is fighting it in court. We are also participating in an independent inquiry – the Rouleau Commission – that is looking into the government’s use of this law.

The Rouleau Commission is now accepting comments from the public – that means YOU can send the inquiry a public comment about your experience and reaction with the 2022 Freedom Convoy and the government’s illegal and unconstitutional use of the Emergencies Act.

Your comment may be quoted in the hearings, or in the Commission’s final report. It is imperative that the Commission hear from members of the public and understand the full impact on citizens of the federal government’s illegal and unconstitutional use of the Emergencies Act.

This is an important way for your voice to matter. There are many untold stories related to the Freedom Convoy. Much of the reporting of the protests was disconnected to the experience of participants and observers who were on the ground at these protests in early 2022. These public comments are now an opportunity for those stories to be told as a part of the Inquiry.

Your comment can be submitted by email to perspectives@poec-cedu.gc.ca.
It can also be submitted by mail to: Public Order Emergency Commission
c/o Main Floor Security Desk
90 Sparks Street
Ottawa, ON K1A 0A3

Before you send in a public comment, I want to give you style suggestions, the background facts you need to know, some key messages and questions you may want to consider answering, and of course, the technical details of how and when to send in your submission. I can’t wait to tell you all about it.
I want to start by saying this inquiry is NOT the government. It is an independent and non-partisan commission chaired by a very respected court of appeal judge and staffed by experienced lawyers. This inquiry was not called out of the kindness of the Prime Minister’s heart – it is required by law. I think if it was not required by law, it almost certainly would not be taking place. So my first piece of style advice is to remember that your comments are NOT being sent to the government. They are NOT being sent to the prime minister, or to any politician. It is being sent to a judge.

So don’t use bad language. Don’t use partisan language. It won’t help. In fact, it will only undermine the credibility of your message. I want your submissions to matter. It’s too easy to dismiss a public comment that is full of angry and profane language, or that comes across as a partisan attack.

I get that a lot of you are angry – I’m angry too. But let’s channel our anger into something useful by sending in public comments that use our words to communicate the damage that the government has done by illegally using the Emergencies Act.

Remember that your submission may be referred to or quoted by the Commission either in the report or in the public hearings. Use language you would be proud to have attributed to you, even though no identifying information will be used without your express permission.

My second piece of style advice is to start by addressing your letter “To The Public Order Emergency Commission”.
Then begin your submission with your main message. Your main message could be an answer to a question. I have a list of questions you might consider answering listed in the description below. Or instead of answering a question, your main message could be your experience as a participant in the protests or an observer of the protests.

You should keep your submission between 1 and 2 pages. If your submission is really long, it may not be read as carefully. You should focus your letter on the most important things you want the commission to know.
You can also include pictures, photographs and other supporting documents, if you think that will help.

Submissions can be made anonymously. If you want to submit anonymously, it makes sense to explain why you are making that choice. For example, some professionals who participated in the protests faced consequences from their employers. There was a hack of the information about donors to the freedom convoy, and their information, including names and addresses, posted online. I do understand why someone may want to make an anonymous submission, but it is a good idea to explain why you made that choice so the Commission understands too. If you are submitting anonymously, please note your country of residence. We all remember how some media outlets accused the Freedom Convoy of being “foreign funded” – something that turned out not to be true. So make sure you say where you live to prevent those kinds of false allegations about the people sending in public comments.

Lastly, you may submit by handwritten letter by mailing to the address I’ve linked to in the description below. Just please ensure your handwriting is legible.

That’s my style advice.
But I also have advice to give you on the substance of the submissions.
To make your public comment more impactful, focus on a main message. Your main message could be your experience as a participant in the protests or an observer of the protests.

Or you could answer one, or more of these questions: Did the Emergencies Act make you afraid to attend other protests in the future? Including protests on topics unrelated to the Freedom Convoy? Were you afraid to donate to any charities unrelated to the Freedom Convoy after the government invoked the Emergencies Act? Were you concerned that your financial information could be shared with the government if you donated to other charities?

Were you personally involved in the Freedom Convoy protests, and if so, what was your experience like? How was your experience impacted by the use of the Emergencies Act? How do you feel about the protests and about the use of the Emergencies Act. If you were not involved in the protests, what were your views as an observer or person who was affected by the protests? What were your views of the police and government response? How did the police and government response make you feel? Are there any changes you would recommend in terms of the Emergencies Act to ensure it is not abused again in the future?

What is your view on whether the strict threshold set out in the Emergencies Act was met? Has the government provided a sufficient explanation about why existing law enforcement tools were insufficient? It is also important to remember some important facts about the Emergencies Act and its invocation when sending in a public comment.
First, emergency powers have a dark and troubled history in Canada. The Emergencies Act was enacted to replace the War Measures Act, which was abused by previous federal governments. In response to the abuse of the War Measures Act, the Emergencies Act was carefully crafted to set out a demanding set of legally binding conditions that must be satisfied before it can be invoked. Those conditions were not met in this case.

The Emergencies Act is exceptional. It gives the federal cabinet authority to create new criminal offences and police powers, without recourse to Parliament, without advance notice, and without public debate. The law poses the risk of executive overreach which could have profound effects on Canadian democracy. Because the Emergencies Act vests enormous power in the federal cabinet, it should be interpreted strictly.

The Emergencies Act can only be invoked when there are no other legal tools available to deal with an ongoing situation that is urgent, temporary and national in scope. The February 2022 Freedom Convoy protests were cleared using ordinary police powers. In the view of many civil liberties organizations, including the Canadian Constitution Foundation, the invocation of the Emergencies Act was not absolutely necessary, as the Act requires.

After invoking the Emergencies Act, the federal government brought in Economic Measures and Emergency Measures. The Economic Measures enacted under the Emergencies Act required banks to disclose private banking information to police. This amounted to a warrantless and unreasonable search of private banking information. The Emergency Measures prohibited a very broad range of conduct, including generally acceptable and legal protest behaviour, breach of which was punishable by fines and imprisonment.

The federal government has not provided an explanation for its invocation of the Emergencies Act beyond a simple declaratory statement that a public order emergency existed. The federal government is fighting the disclosure of documents that provide a record of why this law was invoked. The federal government is not acting transparently, or explaining why this law was necessary. If the federal government refuses to provide an explanation, it is reasonable to draw the conclusion that no good explanation exists.

The Rouleau Commission hearings begin on September 19, so it is best to send a public comment before that date, although they will be accepted up until October 31.

If you want additional information and style guidance on how to send in a public comment, visit theccf.ca/emergencies-act-inquiry/
Good luck. And I hope you take part in this inquiry.
Yours truly,
Christine Van Geyn

PS – We are fighting this battle against the illegal use of the Emergencies Act as part of the inquiry, but also in court. We’ve hired one of the best lawyers in the country, but that means the fight is expensive. Please consider making a tax-deductible gift to help us pay our legal fees at theccf.ca/donate/

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