Do Medical Professionals Have Freedom Of Expression?

• Published date: 12 November 2021
• Subject Matter: Food, Drugs, Healthcare, Life Sciences
• Law Firm: Bennett Jones LLP
• Author: Ms Valerie R. Prather Q.C., Brynne Harding and Patrick Schembri

Since the advent of the COVID-19 pandemic, state responses to the virus have become the subject of vigorous public debate. While some impugn measures they say are too weak to protect the vulnerable, others lament incursions on their liberties.

Physicians, nurses, and other health care professionals have weighed in, with op-eds, and on social media. When "insiders"-those with special knowledge of the healthcare system, and medical science-voice their opinions publicly, their views can carry special weight. As regulated medical professionals, the law limits the ability of health care professionals to wield their credentials to influence public opinion. In this way, the law limits their freedom of expression.

This raises the important question: to what extent can statutory bodies that regulate professions (Colleges) limit their members' freedom to express their opinions on controversial topics?

Charter Section 2(b): Freedom of Expression and its Limits

Section 2(b) of the Canadian Charter of Rights and Freedoms affords all Canadians the right to "freedom of thought, belief, opinion and expression." Section 1 provides that Charter rights are guaranteed, "subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society." The right to freedom of expression has protected news media, literature, political speech and more. The law in Canada has long recognized, however, that members of regulated professions, like lawyers, physicians, accountants, dentists and others, exchange some of their right to free expression for the privilege of practising their trade.

In the seminal case of Doré v Barreau du Québec, 2012 SCC 12, the Supreme Court of Canada upheld a College's sanction upon a lawyer for speaking uncivilly to a justice of the court. The College's Code of Ethics required the conduct of all lawyers to "bear the stamp of objectivity, moderation, and dignity." The Court held (at para 66) that a proportional balance was required between:

...[T]he fundamental importance of open, and even forceful, criticism of our public institutions with the need to ensure civility in the profession.

These remarks from 2012 resonate as many medical professionals participate in open and forceful criticism of public health responses to the pandemic. At the same time, they must comply with their legal and professional obligations, adhering to practice standards and maintaining appropriate professional boundaries and relationships with patients and colleagues.

Strom v Saskatchewan Registered Nurses' Association

The case of Strom...