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MacDonald Laurier Institute

Peterson’s case demonstrates where professional regulators have gone astray


15 minute read

From the Macdonald Laurier Institute

By Stéphane Sérafin

Professional regulators are losing sight of the purpose their disciplinary authority is supposed to serve, to protect society by preserving professional competence.

Members of restricted professions – doctors, lawyers, accountants and psychologists, among others – are subject to the disciplinary authority of their respective professional regulators. This arrangement is intended to ensure a minimum level of professional competence and to protect those relying on these professional services.

This has obvious advantages over purely market mechanisms, at least in theory, owing to the fact that professional regulators can set standards for members that apply before a member has engaged in serious professional misconduct. However, professional regulators have attracted significant controversy in Canada over the past few years as attempts to police members’ off-duty speech and conduct have become a recurring news item.

The problem is that professional regulators are losing sight of the purpose their disciplinary authority is supposed to serve – to protect society by preserving professional competence – and are policing members values for the sake of perceived reputational interests.

While it is tempting to conclude that the difficulties in these controversial cases arise from straightforward regulatory overreach, the problem is more complex. The fact is that regulators have always had the ability to police off-duty conduct, and for good reason, since such conduct may bear directly upon member competence. It is not that regulators are suddenly policing off-duty conduct which used to fall entirely outside their purview, but that the kinds of expression they are trying to censor are no longer focused on protecting society from an incompetent professional but on protecting themselves and their colleagues from association with political views which they find distasteful.

Professional regulators should reverse course, return to their mandates, and focus on ensuring professional competence, not political alignment, among their members.

Consider the best-known Canadian controversy concerning former University of Toronto professor-turned-social-media-influencer Jordan Peterson. As a member of the College of Psychologists of Ontario, Peterson was ordered to undergo social media training following complaints that his social media posts were discriminatory and unprofessional. The College felt that it could make such an order against Peterson without subjecting him to a full disciplinary procedure. It also felt that it could do so solely on the basis of complaints that did not originate with his clients, but arose out of positions that he had publicly staked out on controversial political and cultural issues.

When Peterson challenged the decision through a judicial process, the Ontario Divisional Court found that the College’s decision was reasonable. The Court was of the view that professional regulators had always held the requisite jurisdiction to police member expression, even when that expression did not arise in the context of a member’s strict professional activities. This included the capacity to police expression considered “discriminatory”. Moreover, it was thought to be enough that the expression might adversely impact the reputation of the psychology profession.

The principles invoked by the Divisional Court in this case are difficult to contest in the abstract. To recognize the authority of a professional regulator over a given profession, rather than relying on market mechanisms to ensure basic competence, means that the professional regulator must take a broad view of the kind of conduct that could fall within its ambit.

It would be difficult to claim that the off-duty conduct of a member is entirely without interest for professional regulators, since such conduct can be relevant to determining whether a particular person is fit to remain a member in good standing. An individual who commits a sexual assault outside of work hours, for example, is probably not fit to act as a clinical psychologist, just as someone who embezzles funds in a context divorced from his or her work should probably not be allowed to operate a trust account as a lawyer. No doubt, certain forms of expression that are not directly connected to the member’s professional activities – defaming others, threatening violence, or airing confidential information other than client information – raise similar concerns.

Criminal and civil court processes are not designed to address these concerns, since their purpose is to establish a criminal infringement of community norms and civil liability towards another person, respectively. Not all criminal acts or civil wrongs necessarily impugn a member’s professional competence, and conversely, there may be grounds to sanction a member where the threshold for criminal or civil liability has not been met.

But to say that professional regulators ought to have jurisdiction over the off-duty conduct of their members is one thing; to determine what type of off-duty conduct, specifically, properly attracts their disciplinary jurisdiction is another. The trouble with the Peterson case, as with many of the other recent Canadian controversies, is that the justification offered for the exercise of professional regulatory jurisdiction does not fit the paradigm offered by the examples just referenced, in which the off-duty conduct, including off-duty expression, can be taken to cast doubt on the member’s ability to carry out his or her profession. Instead, these cases present the regulation of off-duty expression by regulators in a manner analogous to the employment context, where the concern is not with the protection of the public interest, but in allowing employers to preserve their own reputation and to avoid vicarious liability for the acts of subordinates.

The view suggested by the Divisional Court in the Peterson case – that professional regulators are simply doing what they have always done – misses the widening focus of regulators beyond professional competence. This widening focus has been precipitated by at least two factors.

First, technological shifts have significantly altered the balance of power between professional regulators and individual members of the public. In an era of social media, an opinion that would have once been expressed to a small audience now finds itself exposed in some cases to an audience of millions. The possibility that someone, somewhere, will find offense, or decide to find offence, with the expression of opinions grows with the scope of the audience. Moreover, the nature of social media is such that any member of that audience can react, in real time, individually or in concert with others, to the opinion being expressed. This means that potentially every public utterance, whether reasonable or not, creates a reputational risk not just for the individual member, but also for the broader profession. Professional regulators are unsurprisingly concerned by this possibility, which affects their own vested interests.

Second, and perhaps more importantly still, broader cultural shifts have also significantly altered the kinds of expressive content that regulators are likely to treat as “unprofessional” or otherwise raising reputational concerns.

Consider another decision, Simone v. Law Society of Ontario, which was narrowly decided by the Law Society of Ontario Tribunal (the body charged with adjudicating complaints against Ontario lawyers and paralegals). In that case, Lisa Simone, an individual seeking membership in the Law Society of Ontario as a paralegal, was subject to “good character review” because of social media posts that she had made which were, among other things, critical of vaccine mandates, the Black Lives Matter organization, and “pride” events. While the Tribunal ultimately decided in favour of the candidate’s good character, and thus her admission as a paralegal, a majority did so apparently on the sole basis that the candidate had expressed remorse for the social media posts in question.

As with the Peterson case, the comments that landed Simone into trouble were associated with positions on the “right” of the political spectrum. They were also brought to the attention of the Law Society through complaints by members of the general public, and were used against her outside of a formal disciplinary proceeding. In other words, this was also not a classic case involving a disciplinary proceeding brought for off-duty conduct that undermined confidence in Simone’s ability to work as a paralegal. Rather, the concern was that the social media posts themselves reflected poorly upon the profession, not just because of their tone (though this was the formal argument made against Ms. Simone’s accreditation) but also, ostensibly, because of their content. This appears to be why the majority in that case repeatedly reaffirmed Ms. Simon’s obligation to comply with human rights laws, as though the mere expression of views critical of vaccine mandates, the Black Lives Matter organization, and “pride” events might infringe those obligations.

To say that professional regulators appear increasingly concerned with the reputational interest of their profession is, in this context, to say that professional regulators appear increasingly concerned with the appearance of complying with narrow cultural and political orthodoxies. These are “orthodoxies”, since they are views that are now largely taken for granted among much of the professional class, or at least among those individuals who are most likely to staff professional regulators and make decisions concerning member conduct.

Where a member of a restricted profession expresses personal viewpoints at odds with these admissible perspectives, the concern is not that the member lacks the requisite competence to exercise their role. Rather, the concern is that the mere expression of these views is “unprofessional”, in the sense that they are potentially damaging, or at least embarrassing, to the profession. That is, the expression of this views is “unprofessional”, owing to the fact that the member’s personal opinions are at odds with the values that the regulator thinks the profession should embrace.

That said, while the opinions that have run afoul of professional regulators have typically been associated with the “right” of the political spectrum – as in the Peterson and Simone cases – there have also been cases in which the authority of professional regulators has been invoked to punish those expressing views more typically associated with the “left”. In one particularly notable incident after the October 7 attacks on Israel by Hamas, students enrolled at the Faculty of Law at Toronto Metropolitan University (formerly Ryerson University) circulated a letter that purported to express solidarity with Palestinians, but also included language referencing a right of “resistance”. Many in the legal profession interpreted the letter as condoning the October 7 terrorist attacks. This prompted calls to deny the students articling positions (a requirement of lawyer licensing in Ontario) and potentially to deny them accreditation altogether.

This and similar cases that have arisen since October 7 may well suggest that the phenomenon that has until recently targeted mostly “right”-coded political opinions may now be weaponized by either side of the political spectrum.

What each of these cases undoubtedly serve to highlight, in any event, is a need to recover the importance of professional competence as the aim of regulators. Ensuring professional competence is the very reason for which professional regulation exists, and why determinations as to who can exercise these particular professions are not left solely to the market.

Canadians need professional regulators to return to their mandate: ensuring a minimum level of professional competence and protecting those relying on professional services. Regulators should not concern themselves with whether the opinions expressed by members are potentially embarrassing because they happen to fall outside the “values” that regulators believe professionals should embrace.

Stéphane Sérafin is an assistant professor in the French Common Law Program at the University of Ottawa.

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MacDonald Laurier Institute

The Governor General deserves better, but we deserve impartiality

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From the Macdonald Laurier Institute

By Philippe Lagassé

Mary Simon’s impartiality was undermined by hosting a symposium tied to controversial government legislation.

Mary Simon has been a guarded Governor General. She’s adopted a low profile since her appointment, performing her vice-regal responsibilities without much notice. When she has been in the news, it’s usually because of her efforts to learn French and costly diplomatic trips, not on account of an initiative she’s launched or a stance she’s taken. Aside from routine public statements and some championing of Indigenous reconciliation, Simon hasn’t tried to make a mark. Until last week, that is.

On April 11, Her Excellency hosted a symposium on online abuse and creating safe digital spaces. Simon has been the target of vitriol on social media, a reality she shares with many public figures, particularly women. She wants to address this problem, stressing that “we deserve better.” As far as causes go, this is a laudable one. Online abuse is a serious issue, one that can excuse and encourage physical violence and attacks. To highlight the severity of the challenge, the Governor General’s symposium featured well-known Canadians who’ve also suffered from online abuse and are determined to fight it.

Unfortunately, the Governor General’s symposium took place while a government bill on online harms is making its way through Parliament. Bill C-63, the Online Harms Act, has been the source of significant controversy, notably around its impact on free expression and the potential life sentences it imposes on certain types of hateful speech. C-63 has been criticized by law professors, civil liberties advocates, and the Conservative Party. While there may be a general consensus that online abuse is a scourge, the solution is contentious, and Bill C-63 has been the subject of serious debate.

As well-intentioned as the Governor General’s symposium was, she should never have hosted it in this context, a conclusion that’s reinforced by the Minister of Justice publicly tying the event to bill C-63. As soon as the government tabled the bill, Her Excellency should have understood that the symposium was no longer appropriate and would present a risk to her office’s impartiality.

The Governor General is the second highest office of the Canadian state, right under the King. As the King’s vice-regal representative, the Governor General performs core constitutional functions. These demand that the Governor General not only act impartially but be perceived to be impartial. This isn’t just good form, it’s a fundamental part of the job.

As part of their constitutional role, Governors General exercise the Crown’s reserve powers. These include the granting of royal assent to legislation on the advice of the houses of Parliament, proroguing and dissolving Parliament on the advice of the Prime Minister, and inviting a party leader to form a new government when the serving Prime Minister resigns. Impartiality helps shield the Governor General from partisan attacks when exercising these powers and maintains public trust in the office.

Now, to be clear, the Governor General has very limited discretion in exercising these reserve powers. As long as the Prime Minister’s party holds the confidence of the House of Commons, the Governor General must almost always accept their advice. Yet, there have been and will be cases where vice-regal representatives exercise their discretion to decide the fates of governments or guard against unconstitutional abuses of power. When these occur, we need the Governor General to be respected as a non-partisan, politically neutral office. Doubts about a Governor General’s impartiality undermine her or his constitutional functions and can weaken trust in the office when it’s most needed.

Turning back to the symposium, it’s important to clarify why it undermined her impartiality, or at least perceptions of it. Defenders of the symposium have argued that the event didn’t feature any members of the government as speakers, hence it wasn’t partisan or meant to endorse the Online Harms Act. Suffice to say, had ministers spoken at the event, we would be dealing with an outright constitutional debacle, not just concerns about vice-regal impartiality. A full-on violation of constitutional norms isn’t the standard here. Instead, we should be asking why the Minister of Justice was even there, and why the Governor General decided to host the symposium, considering how contentious Bill C-63 has been already. Hosting the event allowed Her Excellency to get pulled into the partisan fray, a predictable outcome that she shouldn’t have risked.

Those who participated in the symposium will counter that it was the Minister of Justice who made the connection with Bill C-63, not the Governor General. Her Excellency’s motives, and the importance of the cause addressed by the symposium, shouldn’t be impugned by a careless, partisan tweet. Alas, partisans are going to partisan and politicians are going to politick. This is precisely why vice-regal representatives should avoid wading into politically charged topics. Expecting politicians to show restraint and respect the neutrality of the office of the Governor General is more than a tad naive. Vice-regal representatives should have the wherewithal to avoid situations where their office can be leveraged for partisan purposes.

Defenders of the symposium offer another argument: as the sovereign’s representative, the Governor General should address important social problems that affect Canadians. The vice-regal role shouldn’t be confined to constitutional functions, ceremonies, and commemorations. Not allowing vice-regal representatives to advocate for the public good would be a lost opportunity. This is a fair point, though Governors General need to be careful about what causes they take up. When it comes to vice-regal advocacy, banal benevolence is the way to go. Anything that’s the subject of notable partisan and parliamentary debate, is ideologically fraught, or might be fought over during an election should raise red flags.

Thankfully for the Governor General, the controversy surrounding her symposium hasn’t extended beyond the Ottawa bubble yet. She should keep it that way by abandoning her “We Deserve Better” campaign while partisans battle it out over Bill C-63 and the courts review the Online Harms Act if it becomes law.

This isn’t because the Governor General doesn’t deserve better; she does, as do all those who suffer online abuse. It’s because Canadians deserve impartiality from the Governor General, both real and perceived.

Philippe Lagassé is an associate professor at Carleton University. He’s the co-editor of Canada and the Crown: Essays on Constitutional Monarchy (2014) and The Crown and Parliament(2015).

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Time for an intervention – an urgent call to end “gender-affirming” treatments for children

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From the Macdonald Laurier Institute

By J. Edward Les

Despite the Cass Review’s alarming findings, trans activists and their enablers in the medical professions continue to push kids into having dangerous, life-altering surgeries and hormone-blocking treatments. It needs to stop.

If nothing else, the scathing final report of the Cass Review released this week (but commissioned four years ago to investigate the disturbing practices of the UK’s Gender Identity Service), is a reminder that doctors historically are guilty of many sins.

Take the Tuskegee syphilis study, one of the greatest stains on the medical profession, in which impoverished syphilis-infected black men were knowingly deprived of therapy so that researchers could study the natural history of untreated disease.

Or consider the repugnant New Zealand cervical cancer study in the 1960s and 1970s, which left women untreated for years so that researchers could learn how cervical cancer progressed.  Or the Swedish efforts to solidify the link between sugar and dental decay by feeding copious amounts of sweets to the mentally handicapped.

The doctors behind such scandals undoubtedly felt they were advancing scientific inquiry in pursuit of the greater good; but they clearly stampeded far beyond the boundaries of ethical medical practice.

More common by far, though, are medical “sins” committed unknowingly, such as when doctors prescribe toxic treatments to patients in the mistaken belief that they are beneficial. When physicians in Europe and Canada latched onto thalidomide in the late 1950s and early 1960s, for instance, they thought it was a wonder drug for morning sickness. Only the fine work of Dr. Francis Kelsey, an astute pharmacist at the FDA, prevented the ensuing birth-defects tragedy from being visited upon American women and children.

And when Oxycontin hit the medical marketplace in the 1990s, physicians embraced it as a marvellous — and supposedly non-addictive — solution to their patients’ pain. But the drug was simply another synthetic derivative of opium, and every bit as addictive; its use triggered a massive opioid overdose crisis — still ongoing today — that has killed hundreds of thousands and ruined the lives of countless individuals and their families.

Physicians in the latter instances weren’t driven by malevolence; but rather by a deep-seated desire to help patients. That wish, compounded by extreme busy-ness, repeatedly seduces doctors into unwarranted faith in untested therapies.

And no discipline in medicine, arguably, is more frequently led astray by the siren song of shiny new things than the field of psychiatry. Which is understandable, perhaps, given the nature of psychiatric practice. Categorizations of mental disorders — and the methods used to treat them — are based almost entirely on consensus opinion, rather than on direct measurement.  Contrast that with other domains of medical practice: appendicitis is diagnosed by imaging the infected organ, and then cured by surgically removing the inflamed tissue; diabetes is detected by measuring elevated blood sugar, and then corrected by the administration of insulin; elevated blood pressure is calibrated in millimetres of mercury, and then effectively reduced with antihypertensives; and so on.

But mental disturbances remain largely the stuff of conjecture — learned conjecture, mind you, but conjecture, nonetheless. The Diagnostic and Statistical Manual of Mental Disorders, the “bible” of mental health professionals, is the collective effort of groups of tall foreheads gathered around conference tables opining on the various perturbations of the human mind. Imprecise definitions abound, with heaps of overlap between conditions.

The current version (DSM-5) describes schizophrenia, for example, as occurring on a spectrum of “abnormalities in one or more of the following five domains: delusions, hallucinations, disorganized thinking (speech), grossly disorganized or abnormal motor behavior (including catatonia), and negative symptoms.” Each of these five domains is open to professional interpretation; and what’s more, the schizophrenia spectrum is further subdivided into ten sub-categories.

That theme runs through the entire manual – and imprecise definitions lead on to imprecise solutions. Given the blurred indications for starting, balancing, and stopping medications, it’s no accident that many mentally unwell patients languish on ever-changing cocktails of mind-altering drugs.

None of which is to downplay the enormous importance of psychiatry, which does much to address human suffering amidst unimaginable complexity; its practitioners are among the brightest and most capable members of the medical profession. But by its very nature the discipline is submerged in — and handicapped by — uncertainty. It’s unsurprising, then, that mental health professionals desperate for effective treatments are susceptible to being misled.

The dark history of frontal lobotomies, seized upon by psychiatrists as a miracle cure but long relegated to the trash heap of medical barbarism, is well known. The procedure (which garnered its inventor the Nobel Prize in Medicine) basically consisted of driving an ice pick through patients’ eye sockets to destroy their frontal lobes; thousands of patients were permanently maimed before saner heads prevailed and the practice was halted. Many of its victims were gay men: “conversion therapy” with a literal, brain-altering “punch.”

Similarly, the fabricated “recovered memories of sexual abuse” saga of the 1980s and early 1990s suckered mental health practitioners into believing it was legitimate. Hundreds of professional careers were built on the “therapy” before it was all exposed as a fraud, leaving many lives ruined, families torn asunder, and scores of innocent men imprisoned or dead from suicide. In a 2005 review, Harvard psychology professor Richard McNally pegged the recovered memory movement as “the worst catastrophe to befall the mental health field since the lobotomy era.”

Until now, that is. That scandal pales in comparison to the “gender transition/gender affirming care” craze that has befogged the medical profession in recent years.

Without a shred of supporting scientific evidence, many doctors — led by psychiatrists, but aided and abetted by endocrinologists, surgeons, pediatricians, and family doctors — have bought into the mystical notion of gender fluidity. What was previously recognized as “gender identity disorder” was rebranded as gender “dysphoria” and recast as part of the normal spectrum of human experience, the basic truth of binary mammalian biology simply discarded in favour of the fiction that it’s possible to convert from one sex to another.

Much suffering has ensued. The enabling of biological males’ invasion of women’s spaces, rape shelters, prisons, and sports is bad enough. But what is being done to children is the stuff of horror movies: doctors are using medications to block physiological puberty as prologue to cross-gender hormones, genital-revising surgery, and a lifetime of infertility and medical misery — and labelling the entire sordid mess as gender-affirming care.

The malignant fad began innocently enough, with a Dutch effort in the late 1980s and early 1990s to improve the lot of transgendered adults troubled by the disconnect between their physical bodies and their gender identity. Those clinicians’ motivations were defensible, perhaps; but their research was riddled with ethical lapses and methodological errors and has since been thoroughly discredited. Yet their methods “escaped the lab”, with the international medical community adopting them as a template for managing gender-confused children, and the World Professional Association for Transgender Health (WPATH) enshrining them as “standard of care.” Then, as American social psychologist Jonathan Haidt is the latest to observe, the rise of social media torqued the trend into a craze by convincing hordes of adolescents they were “trans.” Which is how we ended up where we are today, with science replaced by rabid ideology — and with condemnation heaped upon anyone who dares to challenge it.

An explanation sometimes offered for the massive spike in gender-confused kids seeking “affirmation” in the past fifteen years is that today it’s “safe” for kids to express themselves, as if this phenomenon always existed but that — as with homosexuality — it was “closeted” due to stigma. Yet are we really expected to believe that the giants of empirical research into childhood development —brilliant minds like Jean Piaget, Eric Erikson, Lev Vygotsky, and Lawrence Kohlberg — somehow missed entirely the trait of mutable “gender identity” amongst all the other childhood traits they were studying? That’s nonsense, of course. They didn’t miss it — because it isn’t real.

The fog is beginning to dissipate, thankfully. Multiple jurisdictions around the world, including the UK, Sweden, Norway, Finland, and France have begun to realize the grave harm that has been done, and are pulling back from — or halting altogether — the practice of blocking puberty. And the final Cass Report goes even further, taking square aim at the dangerous practice of social transitioning and concluding that it’s “not a neutral act” but instead presents risk of grave psychological harm.

All of which places Canada in a rather awkward position. Because in December of 2021 parliamentarians gave unanimous consent to Bill C-4, which bans conversion therapy, including “any practice, service or treatment designed to change a person’s gender identity.” It’s since been a crime in Canada, punishable by up to five years in prison, to try to help your child feel comfortable with his or her sex.

As far as I know, no one has been charged, let alone imprisoned, since the bill was passed into law. But it certainly has cast a chill on the willingness of providers to deliver appropriate counselling to gender-confused children: few dare to risk it.

A conversion therapy ban had been in the works for years, triggered by concerns about disturbing and harmful practices targeting gay children. But by the time the bill was presented in its final form to Parliament for a vote it had been hijacked by trans activists, with its content perverted to the degree that there is more language in the legislation speaking to gender identity than to homosexuality.

To be clear, likening homosexuality to pediatric “gender fluidity” is a category error, akin to comparing apples to elephants. The one is an innate sexual orientation, the acceptance of which requires simply leaving people be to live their lives and love whomever they wish; the other is wholly imaginary, the acceptance of which mandates irreversible medical (and often surgical) intervention and the transformation of children into lifelong (and usually infertile) medical patients.

And the real “elephant” in the room is that in a troubling number of cases pediatric trans care is conversion therapy for gay children because for some people, it’s more acceptable to be trans than it is to be gay.

Bill C-4 received unanimous endorsement from all parliamentarians, including from Pierre Poilievre, now the leader of the Conservative Party. No debate. No analysis. Just high-fives all around for the television cameras.

It’s possible that many of the opposition MPs hastening to support the ban did so for fear of being painted as bigots. Yet the primary responsibility of an opposition party in any healthy democracy is to oppose, even when it’s unpopular. In 2015, when NDP Opposition leader Tom Mulcair faced withering criticism for resisting anti-terror legislation tabled by Stephen Harper’s Conservative government, he cited John Diefenbaker’s comments on the role of political opposition:

“The reading of history proves that freedom always dies when criticism ends… The Opposition finds fault; it suggests amendments; it asks questions and elicits information; it arouses, educates, and moulds public opinion by voice and vote… It must scrutinize every action of the government and, in doing so, prevents the shortcuts through democratic procedure that governments like to make.”

In the case of Bill C-4 the Conservatives did none of that. And by abdicating their responsibility they helped drive a metaphorical ice pick into the futures of scores of innocent children, destroying forever their prospects for normal, healthy lives.

We’re long overdue for a “conversion”: a conversion back to the light of reason, a conversion back to evidence-based care of children.

In 1962, when the harms of thalidomide became known, it was withdrawn from the Canadian market. In 2024, now that the serious harms of “gender-affirming care” have been exposed, it remains an open question as to when Canada’s doctors and politicians will finally take the difficult step of admitting that they got it wrong and put a stop to the practice.

Dr. Edward Les is a pediatrician in Calgary who writes on politics, social issues, and other matters.

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