While professionals enjoy the protection of the same constitutional rights and freedoms as all citizens, these rights and freedoms are not absolute and may be limited by professional regulatory bodies in appropriate circumstances. Many regulators have been grappling with this issue in the context of registrants spreading misinformation during a global pandemic, and those registrants’ right to freedom of expression. A recent decision of the Ontario Physicians and Surgeons Discipline Tribunal demonstrates how a physician’s right to freedom of expression can be limited to protect other values, such as protecting the public interest by preventing the harmful spread of misinformation, and maintaining the integrity and reputation of the profession and public trust: College of Physicians and Surgeons of Ontario v. Trozzi, 2023 ONPSDT 22.
On October 6, 2023, the panel released its decision following a discipline hearing regarding a physician’s conduct in response to the COVID-19 pandemic, finding that the physician engaged in professional misconduct and further, that he is incompetent. In its decision, the panel addressed the physician’s right to freedom of expression under s. 2(b) of the Canadian Charter of Rights and Freedoms with respect to the physician’s COVID-19 communications.
The panel stated at para. 72 that
We accept, and the College does not disagree, that a finding of professional misconduct arising out of the member’s communications will have an impact on the member’s freedom of expression. Although the member’s submissions on the impact of the Charter focuses on the College’s actions, we find that the impact on his rights arises at the point when this panel decides that the allegations have been proven and the member faces disciplinary consequences.
The panel relied on the Supreme Court of Canada’s decision in Doré v Barreau du Québec 2012 SCC 12 (CanLII), which set out guidelines for administrative decision-makers who must grapple with the Charter in the exercise of their discretion. Doré describes a proportionality exercise: the decision-maker must first consider the statutory objectives, and then consider how best to protect the relevant Charter value in view of the statutory objectives. The panel further noted that the Doré proportionality analysis must be a robust one with the administrative decision-maker reaching an outcome that proportionately balances the statutory objectives while minimally impairing the relevant Charter right.
The panel found that in light of the College’s statutory objectives, a finding of professional misconduct is a proportionate response relative to the impact on the physician’s freedom of expression. At para. 78, it stated:
In considering the statutory objectives and applying the proportionality analysis directed by Doré, we find it important to highlight the context in which the allegations of professional misconduct arise. This case is about a member’s actions during a public health emergency caused by the COVID-19 global pandemic. Our discussion of the College’s statutory objectives is thus grounded in that context. In upholding the College’s overriding duty to regulate the profession in the public interest, a finding of professional misconduct based on the member’s communications to the public about COVID-19 furthers at least two important statutory objectives:
- protecting the public interest in the context of the pandemic, by preventing the spread of harmful misinformation;
- maintaining the integrity and reputation of the profession and promoting trust in the profession by rejecting unprofessional and uncivil discourse.
In balancing the impact on the physician’s freedom of expression with the CPSO’s statutory objectives, the panel noted that a finding of professional misconduct would affect the physician’s right to freedom of expression, would have a chilling effect on other registrants who might be deterred from expressing their own views, and that a decision with disciplinary consequences is a serious matter. The panel also recognized that even if it were to make a finding of misconduct, it will determine penalty at a second stage in the proceedings.
Ultimately, the panel determined that in light of the statutory objectives, a finding of professional misconduct is a proportionate response relative to the impact on the physician’s freedom of expression.
The penalty hearing in scheduled for November 10, 2023.