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DEREK FROM: Freedom of expression is increasingly under attack from professional bodies seeking to regulate what their members can say

Carolyn Strom
Carolyn Strom

Saskatchewan nurse Carolyn Strom is back in court this week, this time at the Saskatchewan Court of Appeal (SKCA). Despite its humble beginnings, her case is of national importance.

In 2015, Carolyn, a registered nurse, posted comments on social media relating to the end-of-life care that her grandfather had received at a facility in Macklin, Sask. In the comments, she politely but pointedly criticized the care her grandfather had received from some of the facility’s staff.

For this, Carolyn was dragged before a professional disciplinary committee and found to have engaged in professional misconduct. She was ordered to pay a fine and costs totalling $26,000 — despite the fact that the committee did not find any factual problems with her post, which was written in non-inflammatory language and deliberately did not reveal the names of any of the staff whose professionalism she criticized.

Sadly, this sort of case is not an anomaly. Freedom of expression is increasingly under attack from professional bodies seeking to regulate what their members can say. How is it that the law permits a lower level of protection for Carolyn’s free speech rights than Canadians who are not members of professional associations?

To answer this, the SKCA will rely on the Supreme Court of Canada’s Doré precedent. Doré requires Canadian courts to defer heavily to rulings of administrative bodies, like the disciplinary committee, even when their decisions restrict Charter rights like freedom of expression. Instead of reviewing whether the administrative decision-maker came to the correct result in deciding whether the violation of a Charter right was justified, under Doré, courts instead review whether the administrative decision-maker came to a so-called “reasonable” result, even if the court disagrees with that result and would have decided the matter differently.

Our courts can therefore appear at times to be shirking their duty to protect Canadian rights by deferring to administrative decisions that fall within the ill-defined and broad spectrum of what might be construed as “reasonable.” This high level of deference sometimes traps a court into the nonsensical position of finding an administrative decision reasonable while believing it to be incorrect.

There are more problems too. Had the province’s legislature enacted a law sanctioning Carolyn’s speech in the same fashion as the disciplinary committee did, there would be good reason to believe this hypothetical law would be struck down as a violation of freedom of expression. A court hearing such a Charter challenge would not defer so heavily to the legislature. Yet, in Carolyn’s case, since it’s regarding a decision of an administrative body, the state’s actions against her effectively bypass this level of reviewing court’s scrutiny.

This should seem absurd. Courts have legal training and expertise in Charter law with a mandate to give full and robust protection to the right of freedom of expression, yet the courts are supposed to defer more heavily to a panel of appointees that lack these sorts of things?

If anything, it makes more sense that a legislature would be afforded more deference than an administrative body.  Legislatures have to answer to the public each election cycle. Legislatures negotiate, debate, draft and redraft legislation before it becomes law. Despite this, it’s the decisions of administrative bodies that our courts are instructed to afford greater deference. Appeal courts do not even afford lower courts this level of deference on this sort of matter.

When the rights of Canadians are violated by the state, especially those rights recognized as “fundamental” by the Charter itself, it is simply not enough for courts to take a deferential, hands-off approach. Instead, those rights should receive a robust protection grounded in rigorous analysis.

Carolyn has done Canadians a great service by bringing this issue to light, and who better to critique our health care system than a dedicated professional who only wants patients to receive the better care?  We need more nurses like Carolyn, not fewer.

Derek From is a staff lawyer with the Canadian Constitution Foundation, which is intervening in the Strom appeal.

Copyright Postmedia Network Inc., 2019

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