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Charter - s.2(b) Freedom of Expression (4). Polidoulis v. Health Professions Appeal and Review Board
In Polidoulis v. Health Professions Appeal and Review Board (Div Court, 2024) the Divisional Court dismissed a JR against the Health Professions Appeal and Review Board (HPARB), when it cautioning a doctor "with respect to being mindful of her tone and clarity" in COVID-related "open letters".
Here the court considers the tribunal's application of the administrative Charter case of Dore:[17] The applicant then sought a review by HPARB, also a specialized tribunal. It is responsible for reviewing ICRC decisions on complaints. It is required to consider whether the ICRC investigation was adequate and whether the ICRC decision was reasonable. The HPARB may confirm all or part of the ICRC’s decision, make recommendations to the ICRC and require the ICRC to exercise any of its powers (with an exception that does not apply here).
[18] The applicant raised a number of issues before the HPARB regarding the reasonableness of the ICRC decision, not all of which are still being pursued. The main issue before us is the HPARB review of this issue: whether the ICRC gave sufficient weight to the applicant’s right to freely express her religious beliefs.
[19] In support of the applicant’s request for review of the above issue, the applicant submitted case law to the HPARB, including Strom v Saskatchewan Registered Nurses’ Association, 2020 SKCA 112, [2020] 12 W.W.R. 396, a discipline case that included an analysis under Doré v Barreau du Québec, 2012 SCC 12, [2012] 1 S.C.R. 395.
[20] As summarized in the applicant’s case of Strom, at para. 36, in Doré, the Supreme Court concluded that a decision of an administrative body that affects Charter rights does not need to be made using a formulaic application of the test in R. v. Oakes, 1986 CanLII 46 (SCC), [1986] 1 S.C.R. 103. The question is whether the decision reflected a proportionate balance of the decision-maker’s statutory mandate with the Charter right at issue: Doré, at para. 57.
[21] In considering the applicant’s request for review, the HPARB cited the above principle from Doré and found that the ICRC decision reflected the College’s object of promoting relationships between its members and the public in its findings that, “While the [applicant’s] comments engaged her religious faith and were made within her faith community, they were public facing comments involving the transmission of infectious disease, and in some cases associated directly with her identity as a physician.” Further, the ICRC found that, “As a physician, the [applicant] holds a unique position of trust in society; she must therefore recognize that her role as a physician has an authoritative impact on listeners and readers when speaking publicly on public health-related matters.”
[22] The HPARB noted that the ICRC had chosen the remedial approach of a caution, which did reflect a proportionate balancing of the statutory mandate with the Charter right at issue. The HPARB further noted that the ICRC did not preclude the applicant from expressing her religious views in public. The concern was that she identified herself as a physician when doing so.
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[26] Nor is there any issue that the Doré analysis is a highly contextual exercise: Loyola High School v. Quebec (Attorney General), 2015 SCC 12, [2015] 1 S.C.R. 613, at para. 41. . Trozzi v College of Physicians and Surgeons of Ontario [professional freedom of expression]
In Trozzi v College of Physicians and Surgeons of Ontario (Div Court, 2024) the Divisional Court dismissed a JR, here against a decision and penalties [ie. it "revoked his licence to practise medicine in Ontario"] imposed by the Ontario Physicians and Surgeons Discipline Tribunal that found the applicant doctor had engaged "in conduct that would reasonably be regarded by members as disgraceful, dishonourable or unprofessional" and "incompetent" ["as defined by subsection 52(1) of the [Health Professions Procedural Code, Schedule 2 to the Regulated Health Professions Act"] over a COVID dispute.
Here the court (despite a questionable title) considers the contentious issue of a doctor's 'freedom of expression' in light of their professional regulation:(a) This Appeal is not about Freedom of Expression Generally.
[4] It is important to note at the very outset that this appeal is not about Dr. Trozzi’s freedom to express himself generally to the public. Dr. Trozzi is and remains free to express his political views and his scientific views to the public. He is free to express “his truth” whether it includes objectively verifiable facts, minority views, objectively incorrect facts, deception, or conspiracy theories. He can do so as often and as loudly as he wishes.
[5] No one is prohibiting Dr. Trozzi from expressing himself to the public.
[6] But expression can also create legal obligations. For example, if we tell lies about a person to the pubic, he or she may be entitled to sue for libel or slander. If we make statements that discriminate against a person based on his or her race or sex or another prohibited ground, we may be held liable under the Human Rights Code.
[7] Freedom of expression is not a magic mantra that frees us from responsibility and accountability for our lawful obligations. If a law violates freedom of expression and is not a reasonable limit prescribed by law as can be demonstrably justified in a free and democratic society, it may be struck down as unconstitutional under the Charter of Rights. But in cases where valid laws might penalize expression, the freedom of expression gives people the ability to choose to express themselves knowing that they may be held accountable for doing so.
(b) This Appeal involves applying Valid Regulations to a Doctor’s Expression.
[8] In this case, Dr. Trozzi does not challenge the validity of the law that enables and requires the College to license physicians or that governs the College’s ability to discipline them. From a constitutional perspective there is also nothing wrong with the authority of a regulator to revoke a doctor’s licence when he or she has engaged in professional misconduct. This is not a case of a law itself being unconstitutional because on its face it violates freedom of expression as guaranteed by the Charter of Rights.
[9] In this appeal, Dr. Trozzi has been accused of professional misconduct partly because of things he has written online. (He was also accused of giving vaccine exemptions in an incompetent manner and failing to cooperate with the College in its investigation). But there is no doubt that he has lost his licence due, in part at least, to things he wrote. He says that the valid, general disciplinary regulations are being applied against him in a way that undermines his freedom of expression. I agree with him. More significantly, the tribunal also agreed that its findings of professional misconduct impacted adversely Dr. Trozzi’s freedom of expression.
[10] The Supreme Court of Canada has ruled that when the exercise of statutory discretion under a general, valid, regulatory law negatively affects a person’s rights or fundamental freedoms, then, when the regulator decides how to exercise its discretion, it must consider the effect on the individual’s right or freedom that is engaged. According to the Supreme Court of Canada, the question then, is whether, on balance, the harm to Dr. Trozzi is out of proportion to the public good achieved by the objectives of the regulatory law.[1]
[11] No one says that Dr. Trozzi cannot write what he has written. The issue is whether he ought to be allowed to continue to be a licenced physician in Ontario in light of the things that he wrote. Does the very significant negative impact on Dr. Trozzi by revoking his licence to practise medicine due to the words he expressed outweigh the public interest advanced by the application of professional regulation to him?
[12] The tribunal answered this question with a resounding “no”. For the reasons that follow, I agree and would dismiss Dr. Trozzi’s appeal.
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[40] Dr. Trozzi submits that the tribunal erred in not acting on Dr. Gardam’s evidence that minority views can become a majority views one day. Dr. Trozzi submits that minority views, and even lies, can fall within the purposes of freedom of expression. That may be so, but the converse does not necessarily hold true. That is, freedom of expression does not necessarily apply well or with much vigour to protect a regulated professional’s right to lie to his vulnerable client base. . Trozzi v College of Physicians and Surgeons of Ontario
In Trozzi v College of Physicians and Surgeons of Ontario (Div Court, 2024) the Divisional Court dismissed a JR, here against a decision and penalties [ie. it "revoked his licence to practise medicine in Ontario"] imposed by the Ontario Physicians and Surgeons Discipline Tribunal that found the applicant doctor had engaged "in conduct that would reasonably be regarded by members as disgraceful, dishonourable or unprofessional" and "incompetent" ["as defined by subsection 52(1) of the [Health Professions Procedural Code, Schedule 2 to the Regulated Health Professions Act"] over a COVID dispute.
The court considers a Charter argument that the expressive behaviour of the applicant here was "fundamentally political", and holds that this "submission impermissibly merges the analysis of the constitutionality of a statute or regulation with administrative regulation":[67] In oral argument, counsel for Dr. Trozzi essentially repeated the argument that Dr. Trozzi’s expression was so fundamentally political that it was protected per se without any need to consider Doré balancing. He submitted that the spread of a minority view or even harmful disinformation is protected under the Charter citing cases such as R. v. Zundel, 1992 CanLII 75 (SCC). He submits that by analogy to R. v. Oakes, 1986 CanLII 46 (SCC), there is no need to consider proportionality where the underlying measure is itself a violation of rights.
[68] Dr. Trozzi submits that his freedom of expression can only be proscribed when there is a “clear and immediate” danger of inciting violence or physical harm, or the expression is hate speech, child pornography, a criminal threat of death or assault, or defamatory. He cites Irwin Toy Ltd. v. Quebec (Attorney General), 1989 CanLII 87 (SCC), 1989 CarswellQue 115; Fleming v. Ontario, 2018 ONCA 160, Bracken v. Fort Erie (Town), 2017 ONCA 668, R. v. Keegstra, 1990 CanLII 24 (SCC), 1990 CarswellAlta 192, R. v. Sharpe, 2001 SCC 2, and West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943) 655: [sic]
(ii) Analysis
[69] Dr. Trozzi’s submission impermissibly merges the analysis of the constitutionality of a statute or regulation with administrative regulation. Dr. Trozzi has not sought a declaration that the applicable regulations violate the Charter in general or as applied to him. Rather, as discussed in Doré and later cases, the tribunal and the court are dealing with the intersection of regulatory discretion and Charter values. Had Dr. Trozzi challenged the constitutionality of the governing legislation, the issues might have fallen to be decided on a balancing under s. 1 of the Charter. But Doré applies here, where discretion is exercised under a presumptively valid statutory scheme. Doré provides an analogous analysis, but it takes into account the specific regulatory context and public interest as well.
[70] An argument that under the Charter a doctor can never lose his or her licence due to expression is not supported by any legal theory or precedent. The Supreme Court of Canada has said that when regulatory decision-making raises constitutional concerns, the Doré balancing approach is appropriate. Accordingly, I reject the submission that the court can or should overrule the tribunal on constitutional grounds without getting to Doré.
[71] In my view, the tribunal’s Doré analysis was impeccable and stands as a guide for future tribunals confronted with serious constitutional considerations. As noted in other cases, such as Gill v. Health Professions Appeal and Review Board, 2024 ONSC 2588 and Peterson v. College of Psychologists of Ontario, 2023 ONSC 4685, not all regulatory remedies are punitive or as severe as a licence revocation. The tribunal was correct in this case to note that the constitutional issues were especially significant due to the severity of the remedy and to deal expressly and extensively with Doré. The tribunal found that the seriousness of the context and the extreme nature of Dr. Trozzi’s misconduct satisfied the Doré balance. It properly considered whether there were less restrictive alternatives. It is hard to fathom a contrary decision on the facts as found. . Trozzi v College of Physicians and Surgeons of Ontario
In Trozzi v College of Physicians and Surgeons of Ontario (Div Court, 2024) the Divisional Court dismissed a JR, here against a decision and penalties [ie. it "revoked his licence to practise medicine in Ontario"] imposed by the Ontario Physicians and Surgeons Discipline Tribunal that found the applicant doctor had engaged "in conduct that would reasonably be regarded by members as disgraceful, dishonourable or unprofessional" and "incompetent" ["as defined by subsection 52(1) of the [Health Professions Procedural Code, Schedule 2 to the Regulated Health Professions Act"] over a COVID dispute.
Here the court reviews the Dore/administrative Charter s.1 balancing analysis in a professional-regulation/'freedom of expression' dispute:[47] The tribunal recited the correct case law and determined that it was required to conduct a “robust proportionality analysis”. It first considered the statutory objectives at play. It then balanced those objectives against the impact on Dr. Trozzi’s freedom of expression.
[48] The tribunal recognized that the general public lacks the specialized knowledge held by professionals in a regulated field like doctors. Moreover, the public necessarily places great trust in professionals to guide them. The tribunal recited the Supreme Court of Canada’s decision in Pharmascience Inc. v. Binet, 2006 SCC 48 at para. 36 noting that the vulnerability of the public imposes serious and onerous obligations on regulators to oversee the competency and honesty of the members of the regulated profession.
[49] The tribunal wrote that “[i]t is hard to imagine a more pressing statutory objective than protecting the public during a public health emergency.”
[50] Dr. Trozzi objects to the tribunal setting out its understanding of two important statutory objectives arising from the public health emergency caused by the global pandemic:. 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. [51] Dr. Trozzi submits that the tribunal derived its two statutory objectives out of thin air. They are not written in the statute, the Code, or any regulation. He submits this was an error of law.
[52] I disagree. The primary statutory obligation set out in the statute and by the Supreme Court of Canada is for regulators to protect the vulnerable public from dishonest or incompetent professionals on whom they are told they can rely. The tribunal put specific context to the basic obligation by stating it in terms of a global pandemic response based on the evidence before it. The tribunal considered it vital in a pandemic in particular to protect the public from the spread of disinformation by its regulated professionals and to maintain the integrity of the profession by rejecting unprofessional and uncivil discourse. Neither objective is surprising or beyond the scope of the issues already covered in the Code and the Professional Misconduct Regulation.
[53] The tribunal then accepted a large and liberal understanding of Dr. Trozzi’s rights. It found,[85] The member's right to express his views on COVID-19 is thus protected by the Charter, however distasteful, wrong or hateful others may find those views. A finding of professional misconduct would affect his fundamental right to freedom of expression. It would also have a chilling effect on other members who might be deterred from giving expression to their own views. The impact on this fundamental right must be considered in deciding whether a finding of professional misconduct arising out of the member's expressive activity is justified. [54] The tribunal set about its balancing by first considering the nature of the statements in issue on the evidence before it. It assessed specifically public statements by Dr. Trozzi categorized as:a. The pandemic is a hoax;
b. COVID-19 vaccines are dangerous; and
c. Effective alternative treatments for COVID-19 have been deliberately suppressed. [55] The tribunal then considered the evidence that Dr. Trozzi’s statements were harmful to the public. Dr. Trozzi submits that the tribunal erred in accepted that his statements caused harm when there was no evidence of any specific individual being harmed by him or by pandemic misinformation.
[56] The tribunal heard evidence of Dr. Noni MacDonald who was qualified as an expert in vaccinology and the public health impacts of misinformation. She testified about a peer reviewed study referred to as “Fault Lines” in which she had participated. The findings of the study included:. Science and health misinformation contributes to a "decline in trust, including trust in scientific, government, and healthcare workers and institutions.”
. It also leads to inaction or delayed public policy action.
. "Messaging is more influential if it is repetitive and simple, provides a clear and unambiguous explanation for some event or circumstance (such as a conspiracy theory), and appears to come from a trusted, credible source."
. There is robust evidence on the impact of science and health misinformation on vaccine hesitancy.
. "Misinformation contributes to a lack of adherence to public health measures and to vaccine hesitancy, which can result in vaccine-preventable disease outbreaks, increased healthcare costs, and elevated risk to the health and well- being of vulnerable populations."
. "Misinformation - as estimated by the proportion of those who reported believing that COVID-19 is a hoax or exaggerated - contributed to vaccine hesitancy in over 2.3 million people in Canada between March 1 and November 30, 2021." Eligible people went unvaccinated, increasing the number of cases of COVID- 19, hospital admissions, intensive care visits, deaths and hospitalization costs. [57] The tribunal concluded,[106] We accept that the consequences of the spread of misinformation about COVID-19 are real and significant. Further, the impact of misinformation is magnified when it comes from a physician (in the words of the report, a "trusted, credible source"). Berge highlighted the "power imbalance between health practitioners and patients that arises because of the superior knowledge of the former." On this theme, the Tribunal recently stated in College of Physicians and Surgeons of Ontario v. Rona, 2022 ONPSDT 45 at para. 13:Since physicians hold a unique position of authority and public trust, their words and actions have the potential to significantly influence public perceptions and behaviour. Members of the public are more likely to perceive a physician's Twitter feed as providing a balanced and reliable source of scientific information, and to give significant weight to health care information provided by physicians, given their profession. [107] We conclude that by spreading misinformation about COVID-19, the member's actions had the potential to contribute to the socioeconomic and health impacts discussed in Fault Lines. To the extent the member intended to dissuade members of the public from following public health advice, and whether it can be proven that he caused a specific case of COVID-19, hospitalization or death, his communications contributed to the overall environment of misinformation discussed in that report. [58] The tribunal also found that Dr. Trozzi caused harm to specific people by republishing an article that clearly and groundlessly implied that 80 named health care professionals died because of COVID-19 vaccines. The article was found to have caused trauma to the families of the deceased professionals.
[59] After concluding that Dr. Trozzi’s acts constituted professional misconduct, the tribunal then specifically balanced the issues as directed by Doré.
[60] It started by finding that Dr. Trozzi’s statements were protected but were not high-value speech. It held,[127] Likewise, the member's far-fetched conspiracy theories, unfounded accusations of criminal conduct and reckless rhetoric lie far from the core values underpinning members' expressive rights. Beyond their inflammatory and intemperate tone, they go beyond reasonable scientifically informed debate and use his position as a physician to attempt to dissuade the public from following authoritative public health recommendations during a pandemic. During what has been described as the "defining public health issue of our time" (Gill at para. 315), his communications contribute to real harm to the public good. [61] Dr. Trozzi submitted before the tribunal and then again before us that his statements were high value political speech. But once again, context is everything. As noted at the outset, Dr. Trozzi’s right to make his political statements is undeniable. He is free to stand at a Canadian Hyde Corner or to run for office and make whatever statements he wishes (subject to applicable laws of course).
[62] But as noted by the tribunal, Trozzi was not speaking as a politician but as a licenced physician. In fact, he held himself out as one of the “tiny percent” of doctors in the world who were brave and honest enough to speak out. In rejecting his submission that he was engaged in highly protected political speech the tribunal held,First, although some of his statements attack public health officials and the College, they cannot be separated from the overall theme of his communications which is to undermine the scientific basis for public health measures taken during the pandemic. The member speaks as a "scientist and doctor" providing "objective, accurate and scientific information" about the pandemic. Second, to the extent there exist areas of reasonable, scientifically informed debate about public health measures taken during the pandemic, the member's communications are not within that realm. [63] The tribunal concluded its balancing process with the following findings,[130] We have identified the fundamental importance of expressive rights, the negative effects a finding of professional misconduct would have on the member's freedom of expression, and the potential for such a finding to create a chilling effect on the exercise of the Charter right by others. The positive benefits to the public good of a finding a finding [sic] of professional misconduct include the prevention of the spread of harmful misinformation intended to undermine public health measures during the pandemic. It would also promote confidence in the College's ability to regulate the profession in the public interest by showing that the College can take steps to protect the public during the pandemic. A finding of professional misconduct would serve to maintain the integrity and reputation of the profession and promote trust in the profession during a public health emergency.
[131] A finding of professional misconduct does not impair the member's freedom of expression more than is necessary to achieve the objectives of protecting the public interest in a global pandemic, maintaining the integrity and reputation of the profession and promoting trust in the profession. It does not impair his right to engage in debate, even heated debate, about public health measures during the pandemic and the science underlying those measures. It does impair his ability to engage in speech which is misleading, inflammatory and contributes to harm to the public during a public health emergency, lending that speech credibility because of his medical training and profession.
[132] In light of the statutory objectives, a finding of professional misconduct is a proportionate response relative to the impact on the member's freedom of expression. We have considered whether there are other reasonable possibilities that would give effect to Charter protections more fully while still furthering those objectives and find none. The College would not be fulfilling its responsibility to regulate the profession in the public interest if it did not take action to investigate and deter such conduct. While recognizing that the impact of our finding on the member's Charter rights is significant, in our view, in these circumstances, the statutory objectives are paramount and the effect on expressive rights is no more than necessary.
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