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...