Thread by @cvangeyn

Just arrived at Osgoode Hall for the hearing in Dr Jordan Peterson v College of Psychologists of Ontario. Follow this account for live tweets

We've just have been let into the courtroom - very crowded room. Lots of counsel and public interest in this case

Dr Peterson's counsel is here, but I have not seen Peterson himself. He is not obligated to attend so it is unclear if he will be here.

The courtroom is beautiful but lacking in electrical outlets, which will make live tweeting this all day a challenge. Battery saver mode enabled.

While we wait for the panel to come in at 10 am, have a read of the @CDNConstFound news release about the case here:

In addition to @CDNConstFound, interveners in this case include @cancivlib, EGALE, The Association of Aggrieved Regulated Professionals
of Ontario, and the College of Physicians and Surgeons of Ontario

The panel today for this divisional court hearing is: Backhouse, Schabas and Krawchenko JJ.

The panel is in now and we are beginning. Panel begins on commenting on the "unusually full courtroom"

College is seeking a publication ban related to certain individuals in the proceeding. This is a preliminary matter.

College argues they are seeking an order that Dr Peterson cease making names publicly available currently covered by an existing sealing order

The original sealing order was obtained after Dr Peterson had tweeted out a document with names of proposed coaches

As well as a college of psychologists staff member

the document that was tweeted had redactions, but the College argues the redactions were easily removed

College argues that the sealing order does not protect these individuals because the names are available other than through the document

Justice Schabas asks if the College is in effect asking for Dr Peterson to take that tweet down, which was posted before the sealing order was made. And he has not named them since.

Schabas asks if the College is effectively asking for the tweet to be taken down. He is not in breach of the sealing order. And is that the justification for a pub ban?

College agrees effectively yes. Their concern is for the future. In a hardcopy world newspapers dont have to take back hardcopy but this is virtual. Schabas says newspapers resist in digital context though.

College says he sees where court is going on this. Schabas J says he's not going anywhere, just asking questions about the law

Krawchenko J asks if there is an agreement that the existing sealing order should continue. College says they have not discussed it. Counsel for Peterson says they agree the sealing order can continue

College wants to address Peterson's argument that since information is already out there, a pub ban will not be effective. Schabas says well there wont be additional dissemination of information because no one will mention these names

College says since Peterson already had the names before the sealing order was issued, he may possibly post the names again. Schabas says that at the least this would violate the sealing order. College says maybe the spirit. They want a limited pub ban to match the sealing order

Nothing further on the pub ban issue. Now counsel for Peterson (Peter Henein) is up

Peterson's counsel says the College is seeking a retroactive pub ban and the motion should be dismissed. The order would be unenforceable. The submissions are speculative.

There is no evidence people have been identified since the original sealing order or that Dr Peterson deliberately breaches court orders, says his counsel

Cites case law for principle that courts should not make orders that cannot be enforced. Case is a family law pub ban case.

Cites practical impossibility of ever enforcing a pub ban. Information cannot be taken off the internet.

The Jan 4 tweet has been viewed over a million times. Jan 10 tweet likewise.

And that the existing sealing order would already achieve the goals College is seeking.

College says if the tweets are deleted, the retweets will be deleted so there is that effect.

Court is now in recess to discuss the pub ban issue

Court back. Panel says sealing order continues. No pub ban. Its retroactive and unenforceable.

Now counsel for @jordanbpeterson is up on the merits of the case.

Since 2017 Peterson has not had a clinical practice. He seeks a JR of college ICRC from 2022

In that 2022 decision by the ICRC (college investigation committee), college considered complaints about statements Peterson made on twitter and on a podcast

ICRC found moderate risk to public and that Peterson must do professionalism in public statements treatment. The failure to do it could lead to loss of his liscence

1. Panel failed to do Dore proportionality analysis. ICRC failed to propotionate balancing with Charter right to free expression.

2. ICRC failed vavilov analysis on transparency and inteligibility.

Court is not being asked to endorse any of Dr Petersons statements, but to hold the body of the college to the standards of administrative law

A lot of these arguments will be about Dore and Vavilov. You can read about those landmark cases here: en.wikipedia.org/wiki/Canada_(M…

en.wikipedia.org/wiki/Dor%C3%A9…

Decision makers must show their work, essentially.

Counsel for Peterson also relying on a new decision from ONCA, Lauzon v. Ontario (Justices of the Peace Review Council), 2023 ONCA 425 (CanLII)

canliiconnects.org/en/summaries/9…

Counsel for Peterson says for those interested in constitutional law and whether there is a gap between Dore and Vavilov, there is no need to engage in this today, as per Lauzon.

For non-lawyers following along at home, this part of the argument about Vavilov and Dore may be less engaging for you. But for people like @MarkPMancini I'm sure this is worthy of some popcorn

Peterson's lawyer says there is a fundamental gap in the reasoning of the ICRC, and it is not the role of this court to fill that gap by "mining the record"

Now we turn to the ICRC decision itself

We will walk through this decision.

There are "impact risks" - ability to impact public. And "recurrence risks". The ICRC then goes through the complaints. These complaints - all but 2 - were tweeted at the college.

Most complaints were casually made. There were two that were formally submitted. In the report forms, under personal information the reports claimed to be Peterson's clients on the check boxes. This was false. They were not clients.

ICRC lists investigative steps. They appointed an investigator, and then identifies the comments of concern.

briefly stated, Peterson describes himself as a clinical psychologist. Jokes about "poor children". A descritpion of a former client as "vindicitve". A tweet about Elliott Page (transgender actor). An argument with politicians (Gerry Butts and an Ottawa counsellor), and a model

Each of these tweets involves Dr Peterson engaging in some political debate or a commentary on social or political issues

No Counsel for Dr Peterson turns to the decision of the ICRC. Panel says this conduct poses "moderate risk" to the public. Briefly mention Dr Peterson says his speech is protected by the Charter and unrelated to pracitce of psychology. They cite this.

ICRC then has a sentence on the Charter. While they recognize a right to free expression he also has obligation to maintain standards of college. Counsel says this is the sole analysitical consideration of the Charter.

Schabas J - what more should the panel had done? They recognized his right and his professional standard obligation.

What more would have met the Vavilov requirement? Peterons's counsel cites Lauzon. No mention of chilling effect or deleterious effect. They recognize his right, then ignore it.

And they did discuss impact on public to come degree, but engages in no balancing. They just say it will harm the public. It is not enough to just say it - Vavilov and Dore requires them to show their work and do some proprtionality analysis.

ICRC says they are conscerned that making public statements like those poses moderate risks to public, like undermining trust in psychology and in the college,. And in Peterson's ability.

So they do that part of the analysis, but none of the balancing part. Even on a close and generous reading of the decision

In terms of collateral effects - there is obvious chilling effect on any regulated professional other than Dr Peterson. Who does not have millions of followers. Is not famous.

Schabas: there is no finding on what he has done is unprofessional or restriction on his speech. This is just remedial.

There hasn't been a ban. I get there may be some impact, but how significant? Asks Schabas J.

Henein: If you turn to the language, it does limit his expression.

Pulls up the order. Dr Peterson shall enter a coaching program to review, reflect on and ameliorate his public statements. What does ameliorate mean? To improve, make better or CHANGE.

The right to free expression is broad. It includes tone. And there is more.

If coach provides unfavourable feedback to college, college may investigate further. Coach has control over the process. The college has deferred to the proposed coach

Schabas: But all coach does is give feedback to college and says how it is going. Henein: No, coach has significant discretion.

Henein: if coach does not think they are satisfied, the College may investigate.
Schabas: but there is no finding. It's all preliminary.
Henein: But it is the coahc who decides if he has "ameliorated"If he has changed.

Schabas: But College may just leave it at that. They may not do anything if the coach isn't satisfied.

Henein: ultimately the coach does have this role to judge whether Peterson has sufficiently completed the program, which requires him to accept what the coach is teaching him.

Cites Irwin Toy, Keegstra, Zundel. The scope of protected speech is broad and includes offensive speech, minotirty views, and exactly the type of speech here.

Give the importance SCC has placed on free expression, the fact that the ICRC did no analysis of the right makes that decision fail on Vavlivov/Dore

The ICRC decision here is also inconsistent with a prior decision about Dr Peterson from 2020.

Henein: content of that decision is somewhat relevant, though different. In that decision the panel found Dr Peterson's statement do not relate to public trust. Though could be seen as transphobic. But it is a matter of opinion and debate. As long as not violating fed/prov laws

Next up will be second lawyer for Peterson, Matt Gourlay. Gourlay turns to influence of the coach, he says it is more clearcut.

Gourlay: the act of misconduct is complete if coach says Peterson doesn't complete the retraining. Although it is up to the College to prosecute.

To analogize, whether criminal offence is committed is not up to whether or not crown prosecutes.

on whether this is preliminary or remedial, Gourlay turns court to a recent decision. From earlier this month in Newfoundland. Law Society v Buckingham.

That case involved a criminal defence lawyer whose client died in custody. He issued a public statement about it, and the union issued a complaint against him. The law society cautioned him, and he sought a JR of that caution.

the law society had said this was just preliminary/remedial and that a full dore analysis was not necessary. Court of appeal described the real impact that this lesser form of sanction can have on a professional. Theyve been called out publicly and impugned.

And a lesser disposition has the effect of ending the process. The professional gets tarred with the suggestion of unprofessionalism without a full process where he can defend himself.

like the Caution in Buckingham v Law Society, the professionalism training is a final disposition of a sort and a professional is entitled to what Lauzon, Dore and other cases say they are entitled to when their charter right is engaged

It is a very small minority of cases that will engage charter rights. Most of these cases involve in clinical work, record keeping, etc.

Gourlay now turns to his main submissions. He'll make three points. 1. Off duty conduct v clinical conduct, and regulators must tread lightly where charter rights are engaged

2. Groia is an inappropriate paradigm

3. The specific comments in this case and the panel's failed analysis on Vavilov reasonableness

on "off duty" conduct, it's not just the fact that this deals with expression. Regulators can robustly regulate expression that relates to practitioners works.

for example, relationships with clients, advertising, etc. And regulators can even go outside "four corners" of the profession sometimes, to protect integrity of profession. But they must tread carefully.

When it comes to "etherial" idea of "conduct unbecoming" or that "tarnishes repute" of profession, there is a risk it treads into overreach

There are obvious problems of fair notice as well. Often these things are in the eye of the beholder.

Most often, these things deal with things that are criminal. For example, a dentist who is convicted of sexual assault, even not against client, can bring profession into disrepute.

It is telling almost all cases that the College's cases are about criminal or quasi-criminal behaviour. Domestic assault. Sexual assault. Harrassment. These dont' engage charter rights (no charter right to comment an offence)

in contrast, Strom v Sask Nurses, the regulator waded too far into off duty conduct of one of its members, where that conduct was not objectively improper. (BTW, the @CDNConstFound was involved in that case)

@CDNConstFound Compares to another case, I think Wrath, Rath (sp?). The conduct involved angry yelling by a professional at a children's concert. I may be getting those details wrong. It is a notable case because it was close to the line and generated a dissent.

@CDNConstFound The majority in that case said they are not dealing with speech protected by Charter, nor is it a case of professional being disciplined for private conduct. It was a verbal assault in a public setting with children present. That's what generated the misconduct finding.

@CDNConstFound The dissent said there must be some boundary of discipline committee to discipline physicians removed from their professional activities. His behaviour was rude an controntational and inappropraite, but dissent said we dont discipline people professionaly for this

@CDNConstFound Schabas: was he also saying he was a doctor? Did people no that?
Gourlay: I don't know
Schabas: here, dr Peterson makes the point that he is a clinical psychologist. Pressumably to lend weight by virtue of this qualification.

@CDNConstFound Gourlay: it must be seen in the reality of this case. He rose to prominence from his position as a clinical psychologist. It would be no secret to anyone who has encountered his work that he is a clinical psychologist. It would strain credulity to think people don't know

@CDNConstFound Schabas: so why does Peterson say it? In Rath/Wrath (sp?), he got mad at a kids' concert. When talking about "off duty", these cases dont deal with someone making statements and citing their profession

@CDNConstFound Gourlay: I dont agree the majority of his comments mention his status as a clinical psychologist.
Schabas: but on some he does
Gourlay: on that standard there is no off duty. He can't run away from that status even if he didn't include it. Everyone knows.

@CDNConstFound Schabas: but he repeats it.
Gourlay: the ICRC made great hay of the fact that he said it but everyone already knows. And his comments don't rely on his status. He doesn't say "as a clinical psychologist I think Gerry Butts is an X"

@CDNConstFound Schabas: Are you having it both ways? He owes his fame to being a clinical psychologist, but he can't run away from it?
Gourlay: Dr Rath/Wrath (sp) is not a famous person. Dr Peterson is.

@CDNConstFound Gourlay: But that does not detract from his right to express himself.

@CDNConstFound Gourlay: if he is dispensing clinical advice it is relevant. But if he says im a clinical psychologist and this is what i think of the Trucker Convoy, it does nothing for the public

@CDNConstFound No reasonable member of the public would think when he makes those comments about, for example, the trucker convoy, he is making it standing it in the shoes of a clinical psychologist

@CDNConstFound Schabas: but maybe when he uses that language ICRC said is degraging and demeaning?

@CDNConstFound Gourlay takes us to the ICRC decision

@CDNConstFound ICRC notes that on Joe Rogan he is introduced as a clinical psychologist. He also says so in the course of the interview. And his twitter bio says it

@CDNConstFound ICRC then considers the comments on "poor children" and former client who Peterson called "vindictive". Gourlay says these comments require unpacking.

@CDNConstFound On vindictive former client. Peterson is telling Rogan about a former client who "came after" him with a "pack of lies", and how the college came after him. He was accused of "sexual misconduct". He is telling Rogan how this was a difficult time in his life for many reasons

@CDNConstFound The College ultimately decided there was no basis to proceed about that complaint. So what did the ICRC find about Dr Peterson's description of this incident?

@CDNConstFound ICRC panel restated the comment. They announced a conclusion by affixing adjectives to the comments. They said they were concerned Dr Peterson was engaging in degrading comments about a former client and making demeaning jokes

@CDNConstFound Those are just terms gathered from the code of ethics. All the panel did was reiterate the comment and announce that they fit the bill from the code of ethics

@CDNConstFound The ICRC didnt mention that the "vindictive former client" complaint was found to be unfounded. That the complaint was false. Is college saying it is "degrading" to say you we falsely accused, and to be unhappy about it?

@CDNConstFound on "demeaning jokes", this was part of a discussion between Rogan and Peterson on environmental policy, economic growth, and how it effects global north/south/poor/rich. He said if we limit growth, poor people suffer.

@CDNConstFound Dr Peterson was making a comment that policies purport to help everyone, but really hurt the poor. The example is that air pollution hurts poor children. But he says "who cares" - obviously facetiously. To point to the hypocrisy of the policies. He even says it is facetious.

@CDNConstFound Gives the example of Jonathan Swift arguing for eating Irish babies.

These are comments on social and political issues. It is the core of free expression.

Gourlay says these are the questions the icrc panel needed to ask, and the panel did not ask them

We are now taking the morning break

Court about to resume. Laptop is at about 15% battery. I'll be switching soon to tweeting from my phone, which will be slower/less efficient

And we are back. Gourlay, counsel for Peterson back up now discussing reasons of the ICRC panel

Comments considering now are about Catherine McKenney exchange and comment about Elliott Page

the ICRC format considers the comments, they give a bit more detail (including that Twitter suspended Peterson's account following the Page tweet - called tweets hateful which Peterson denies)

ICRC says doesnt need to decide if it is hateful, but says the comments are inflammatory and unprofessional

Gourlay says the tweets are admitadly controversial. But he provided significant context, including to the panel and in a YouTube video. The panel needs to engage with his explanation. He views them as a good faith participation in political debate

Gourlay says merely affixing a label is not the same thing as an analysis, and thats all the panel did

Schabas asks where the Peterson explanations are. Gourlay gives the caselines citation which is in respondent compendium

Gourlay says Peterson gives a many page explanation to explain his thinking.

On to the next comments, which were comments about Gerry Butts (calling him a "prik") and comments about a plus size swimsuit model. ICRC says cumulatively the comments are disparaging (may not be the right word, my memory)

These comments, Gourlay says, were about a model and discussion on aesthetic beauty that was prominant on twitter and the comment to Butts was in context of a heated exchange. They could be considered rude, but the ICRC does not try to reconcile the comments with his 2b rights

Then ICRC turns to the "harm analysis". The ICRC merely announces the harms without explanation. Undermining trust in profession, trust in college's ability to regualte, and causing harm to the people comments are directed at and broader community. So why? Where is the evidence?

Here there isnt even a chain of reasoning. The potential for causing offence is enough here. Gourlay cites Ward (another case CCF was engaged in). Just because someone takes offense does not mean they're harmed, and offense is not enough.

There is no right not to be offended (Ward).

In 2020, the comments may have been even spicier. And the panel there did not find specific harm or reputational harm. So what changed? Why did the 2022 panel reach a different conclusion?

All we have here is an assessment that some people could be offended and a leap to harm. That's not enough, especially when Charter rights are engaged.

There are things the panel could have said, but it's not for the court to back fill the record here. They didnt even make any finding that the comments were discrimanatory. That finding was never even made and its not open to the court now to find it.

Gourlay now turns to line of reasoning that ICRC was not impugning the content of his comments just the tone. But tone is protected by 2b as well. It is mostly inseparable from content.

Cites New York Times v Sullivan

which was recently drawn upon in the SCC case of Ward

just saying Dr Peterson is being taken to task for being rude or caustic isnt good enough, unless they can show that the tone is undermining the core interests of the profession, which isnt done.

Gourlay says the tone/content dichotomy is a post hoc justification for the failures of the ICRC to do the analysis

That effort of rehabilitating the panels reasons must fail, Gourlay says

The ICRC needed to consider the harm to the right, and the harm to the public, and it must be reconciled. For that reason the decision should be quashed.

That concludes Gourlay's submissions for Dr Peterson.

Now up is @cancivlib

@cancivlib We will hear from 3 intervenors in support of the applicant now

@cancivlib CCLA will make 2 submissions. regulator can only regulate speech within core mandate. and there is distinction between conduct and speech

@cancivlib There is something unique and special about speech that does not relate to conduct. It is fundamental to democarcy and has constitutional protection.

@cancivlib And we're back! Hearing now from the College of Psychologists

@cancivlib College wants to start with a brief overview of the decision of the ICRC

@cancivlib First, dr Peterson is a registered member of the college and has chosen to remain so. So he's gained the benefits of the profession

@cancivlib In return, he's required to be subject to the jurisdiction of the college subject to the legislative framework and is required to abide by the standards of professional conduct and ethics

College says Peterson has established a wide audience on social media. And what brings us here are comments during a narrow time period made on social media and podcasts

These comments were brought to the College's attention through formal and informal complaints by people who viewed the comments as unprofessional. They were not thoughtful comments on difficult issues, they were just insulting, demeaning comments, including about a former client

The college registrar got the complaints and inisitated an investigation. This was brought before the ICRC for decision. And the ICRC concluded the comments were degrading and unprofessional. college says this was a reasonable decision

ICRC gave a number of reasons why the comments were relevant to the profession. Having considered the comments and their relationship to the profession, the ICRC considered options on how to address the concern. They decided on an educational remedial program

The ICRC said the purpose of this was to address professionalism in public comments. This addressed the exact concerns they had.

It is that decision - about an educational program - that is before the court today

The ICRC had considered a number of other options ad concluded this option would achieve their objective in the best way possible and keeping in mind their obligations as a regulator

And this took into account the factual and legal context and Dr Peterson's Charter rights. So the JR should be dismissed. (argues the College)

College turns now to what the ICRC does and does not do. There is no finding of professional misconduct and no referral to discipline.

The ICRC decision does not require Dr Peterson to change his opinion on any issue.

It does not limit in any way his use of his social media channels

It does not address what will happen in the future if Dr Peterson makes other posts that come to the attention of the college, or how future communications will be treated. If there are future posts and regulatory action, that will be a different process and decision

Schabas: but it also doesnt address what will happen to Dr Peterson if he doesn't comply. You present it as if it's entirely benign, but it's something that does impact his free expression - they even say so in the decision

Schabas: you can't just present it like a meaningless think, I don't think. You're telling me what it doesn't do, but it does something

College: yes it requires he engage with a coach and communication in a professional way. It is specific and narrow.

It undoubtedly requires him to submit to an education program. And if he doesn't the regulator has their options. These things can have consequences, no doubt. But it will be determined on their own merits in their own time.

The college concluded him comments were degrading and demeaning etc, and they have professional concerns according to prescribed standards that existed before these comments were made.

The ICRC's obligation is to protect the reputation of the profession.

The ICRC was not addressing Dr Peterson at large, for all the things he may have said, written or spoken about. They were concerned with particular comments.

And we've heard about how other things Dr Peterson may have said and done came to the college and were dealt with on their own merits

This is not a fact finding committee finding professional misconduct, they're raising concerns.

They found his comments may undermine public trust, and their role is to protect public trust.

The ICRC also found the comments raised concerns about his ability to carry out his role as a psychologist. They didnt make a finding, they just found it raised concerns. It doesnt matter he isnt currently practicing - as a member he is entitled to practice.

His comments, which were degrading, may cause harm to the people who they were directed at, and the broader community. The college has a concern broadly about whether the comments could impact others.

When the ICRC identified these concerns it was firmly grounded in the College's published standards and code of ethics

This isn't a situation they had not thought about before - they related it to the specific standards the college has under their legislative mandate.

College counsel now pulls up the professional standard, which talks about requirement to take precautions in public comments. For example, that theyre supported by the literature. But also that theyre consistent with professional standards and ethics of college

And that they are not degrading and demeaning

College placed considerable reliance on the code of ethics

This was not an issue of lack of notice - these are the published standards.

And this exact area is what SCC said in Trinity Western it is an area where the professional body is entitled to deference.

The professional regulatory body is entitled to identify what code of ethics should apply to their members. This grounds their concern and objective.

When you read the reasons, there is a chain of thinking.

Counsel acknowledges the ICRC didnt explicitly say "now we will do the Dore balancing analysis". But you can see the chain of reasoning. They looked at the comments and how they related to the profession. And they looked at the range of options available to them.

The ICRC also looked at the proposal Dr Peterson put forward as an alternative and why it wasn't sufficient. It wasn't independent or accountable to the college.

They didnt label it as a lawyer might, but the ICRC went through the analysis.

In light of Dr Peterson's comments, was it reasonable for the ICRC to require him to undertake an education program related to his professional obligations when making comments on social media? Counsel says yes, it was "eminently reasonable" and had minimal impact on 2b

Cites case law for proposition that the decision maker does not need to pick the option that limits the Charter right the least.

Which in this case would probably have been doing nothing

schabas: how do we measure that? He's been ordered to sit down with a coach for as long as it takes for the coach to write a report that says he's satisfied. He has to pay for the coach each time.

Schabas: you've been acting like its no big deal but we dont know how long it will go on and he has this threat over him of disciplinary action.

Counsel: this is how regulators regularly resolve things
Schabas: but that doesn't often engage Charter rights.

Counsel: It isn't in anyones interest for the coaching turn into a lifelong debate
Schabas: but they might

Counsel now turns to looking at the proportionate balance was achieved by the ICRC. First, will touch on whether public statements engage professional regulation at all. Is there a professional nexus.

Will also address these specific comments and tone

on the nexus, the comments were brought to the attention of the college. The ICRC thought Peterson was identifying himself as a psychologist.

But it isnt just that it's in his twitter bio. Dr Peterson explained to the committee in his letter in 2022 that he identified himself as a psycologist on joe rogan

And in his letter he says he is functioning as a clinical psychologist and professor in the broad social sphere, helping millions of people

Counsel for the Colelge says Dr Peterson's own statement to ICRC committee says he regards what he is doing as the broad practice of psychology.

College lawyer pulls up a case we cited, about a TTC employee who was wearing his uniform. College says this is what Dr Peterson is doing by identifying himself as a psychologist. He is "putting on his uniform" as a psychologist. Putting on the mantle of the profession

This needs to be a reasonable conclusion and the ICRC is entitled to deference.

Also cites how CCF says professionals can wear different hats. And distinguishes the Strom case. While we at CCF say he is a public intellectual (she says maybe, but thats not a regulated profession), that the comments do not contribute to intellectual debate

Counsel for the college wants to address one of Dr Peterson's comments in particular, from the Joe Rogan interview

This is the comment about a "vindictive" former client who "came after [Peterson] with a pack of lies".

Counsel says this was a comment about a psychological client, this is clearly within the zone of what the regulator can deal with

Schabas: but his lawyers say he was exonerated. That it was a pack of lies. Shouldn't he be allowed to say that in his own defence?

College Counsel pulls up the disposition of the complaint.
Schabas: but this doesn't address the facts. Did the decision say it was a pack of lies?

College: but they did not find he engaged in sexual misconduct. This isn't a total vindication , there were some concerns and undertakings about other things.

It is reasonable for college to be concerned that a person will listen to Joe Rogan and hear their complaint is talked about in a dismissive way, it may chill future complaints.

Theyre not making findings, they're just raising a concern and it is reasonably founded in the role of the college

But the point is this was directly related to his clinical practice

College moves to another point - that not all speech is equal. As it lies further from freedom of expression values and core values, like the search for social and political truth, it receives inequal protection

As stated in Whatcott, and in Ward, some speech forces other people to argue for their basic humanity and social standing and leaves them in a position where there ability to particiapte in debate is negateively effected

That speech is entitled to less protection.
Schabas: how do we draw that line? There is no suggestion this speech violates human rights law or criminal law

Counsel now turns to other comments, and says they are not valuable speech.

Turns to Peterson's comments on Elliott Page

Counsel for the college says the Dr Peterson comment is to make a personal comment about this actor, suggestion something sinful is happening (pride) and also making harsh comments about Page's physician

This is not contributing to thoughtful debate about healthcare, its not even responding to a comment on healthcare, its responding to a comment about a character on TV

Even the comment on the physician, the code of ethics requires psychologists to be respectful to the expertise of others

College says this college has very little expressive value. It is just an insult.

Next pulls up the transcript of Dr Peterson's YouTube comments he made after he was banned from Twitter for the Page tweet. Where he explains his position.

Counsel for college reviews the transcript of the explanation Dr Peterson gave on YouTube about the "moral culpability" of confusing distressed teenage girls.

The transcript expresses some regrets about using the term "criminal", but then counsel for College says he doubles down calling it butchery, comparing it to nazi experiments. And asks rhetorically if it was criminal or not.

Counsel says it is very reasonable for ICRC to have concerns about that.

Then counsel turns to his comments about McKenney and Butts as well as the sports illustrated plus size model.

Counsel says we dont need more explanation for why these comments are demeaning.

they are demeaning on their face

Counsel turns now to tone. In these comments the tone was unhelpful, non valuable speech and not worthy of protection

Next up is another counsel for the College who will address 2 issues. The balancing of the College's mandate and dree expression, and was the decision of ICRC reasonable

once the professionalism issue was identified, coaching was the least impairing option.

There was never any mention in the ICRC decision that debate on controversial topics was prohibited. The concern was always about tone

And the ICRC had already made the decision not to refer for discipline.

It does not and should not take pages of analysis to explain Dr Peterson has a right to free expression but should be mindful of tone and avoid making degrading and demeaning comments

counsel makes comment to Schabas's concern about where does this end. If the coach and Dr Peterson had a back and forth and Dr Peterson refused to engage, there would still be a report. That would not create an automatic referal to discipline

The registrar could then start an investigation and Dr Peterson could respond to it

Schabas J responds but there is an order here.

Schabas: I've always had a problem with the term tone, because it's so subjective.
Counsel: it is amorphous. But they grounded it in degrading and demeaning, which is in the standards

Counsel: there is no other way to frame that "criminal physician" tweet

Schabas: so what, "I know it when I see it"?
Counsel: It is difficult to give reasons for something that is obvious. I'm not sure what else needs to be said. This was degrading and demeaning.

Counsel: the coaching program was the least impairing option.

Counsel reviews a previous complaint from 2020, which did not result in discipline but which advised Dr Peterson to consider moderating his tone. Nothing was ordered, he was given advice

Counsel says those 2020 tweets were not about individuals, but rather about ideological issues. And Dr Peterson had not identified himself as a clinical psychologist.

Another important contextual factor counsel says is the offer of an undertaking. In 2022 ICRC wrote a letter to Peterson identifying code of ethics as standard of conduct. This requires professionals not to engage in demeaning public comments

In that letter the ICRC noted dr Peterson identifies himself as a clinical psychologist and noted his right to free expression but obligation to comply with standards of conduct and ethics

ICRC pointed out that in 2020 Peterson had been offered advice on tone. So they offered an undertaking that Peterson reflect on these issues with a period of coaching.

Dr Peterson, counsel says, admitted his problem with tone in a response.
Schabas: where does he say that

Backhouse pulls line. Counsel reads it: I have surrounded myself with people to make me conscious of tone
Schabas: that isnt an acknowledgment of a problem

Counsel: Peterson suggested something similar to what the ICRC recommended. That he'd have a social media team to help him monitor for tone.

Counsel: Peterson says he has already done something "akin" to what ICRC has asked for.

Counsel: this letter demonstrates that Peterson recognizes a problem with how he is communicating, not about the subject matter. And that remediation is required. The only dispute is whether the remediation must be consistent with the college standards.

Now counsel pulls up the college's response to Dr Peterson's letter. They decline the Dr Peterson plan, because none of the individuals reviewing his communications on his team are doing it in light of the code and standards of the college

And Dr Peterson's plan is not independent. The people reviewing his communications are family members, friends and employees.

For these reasons the coaching plan by ICRC was proposed again.

The ICRC then wrote to Dr Peterson after his counsel sent a list of questions about the coaching. And the ICRC reiterated the intention was not restricting his expresison on controversial topics but to monitor tone.

In their decision the ICRC reviewed the history, the offer of undertaking, earlier advice, and Dr Peterson's proposal. They cited the code of ethics and grounded their analysis. The said code of ethics is engaged.

said engaged because it undermined public trust as a whole and questions about ability of psychologist.

and how the comments refelct on the profession as a whole

ICRC then said cumulatively it raised concerns. That applied to everything the ICRC was looking at.

The ICRC is in the best position to determine what reflects negatively on the profession.

Says there is a reason Dr Peterson cites his credentials. Says he is leveraging them for credibility. And part of that bargain is that you must abide by the professional standards. Public statements must not be degrading or demeaning.

With respect to proportionality, says that the decision was balanced with freedom of expression and they chose the least infringing option.

And in fact, other options would not have furthered their statutory mandate.

Counsel: Dr Peterson is entitled to his views and may express them, just not in a way that is demeaning or degrading.

Counsel now reviewing the Lauzon v. Ontario (Justices of the Peace Review Council), 2023 ONCA 425 (CanLII) decision that was brought up by Dr Peterson's counsel.

college counsel now turns to chilling effect. The deleterious effects are nominal. The issue of speech only comes up if the coaching program actually limits speech.

on chain of reasoning, counsel for college says it is plain. The ICRC identified a concern, and how to address the concern. And that he no limit on speech. Lawyers are making it more complicated, it is very simple. Extensive reasons are not required.

Counsel says this is a remedial disposition

Reasons do not need to be more complex than the issue. There is a straight line between the concern and the disposition in this case, says College counsel.

that concludes the argument from the College. Now up will be the interveners. First up, the College of Physicians and Surgeons.

actually first we will take a break. Surprise! back in 5 minutes for the interveners and then reply. Expect we will be wrapped up by around 430.

And we are back! Up now is counsel for the College of Physicians and Surgeons, an intervener

Two submissions: first, it is well accepted that each professional regulator sets the standards of professionalism for its members.

it is the profession itself best situated to do so. Cites a case (Rocket, SCC?). The maintanence of a high standard of professionalism is at the heart.

Second, there is no bright line about where regulator may intervene when conduct or speech may compromise the profession and public trust in its members. Conduct that threatens the profession and public trust comes within ambit of regulator.

Counsel for the intervener the college of physicians going through case law of sanctions against other types of professionals

Cites McGyver (sp?) where a phsyician was disciplined for a twitter exchange that used sexist, lewd and divisive language. College found it undermined confidence in profession.

Cites Goodwin, where a physician was disciplined. The college acknowledged the importance of debate but that the phsycian disseminated a sexist insult and was disciplined

Counsel for the physician college done. Now Egale is up.

Btw my laptop died. Now on to my cell phone.

First will address regulation of anti trans comments, then balancing.

Says court must look past labels to substance. On any plain reading transphobic comments are degrading and demeaning

The icrc is entitled and is considering that the comments are discrimatory when determining the comments are degrading and demeaning

These comments are not political and social debate, it is transphobic. They attack the dignity and worth of trans people

Says there is no bright line on lower level of threshold of degrading and demeaning. Can consider tone, content, audience and use of professional title.

But transphobia is never a part of debate when a professional is using his or her title.

Addresses a question Schabas brought up as a devils advocate. If Peterson had said page is confused, would that be acceptable tone. Intervener says this is dehumanizing and pathologizing trans people

That "dead naming" is not appropriate for a regulated health professional and denies their identity

Now Egale cocousnel up for charter issues

And the Dore analysis. Two submissions. Degrading speech gets less protection. And about balancing.

The notion that degrading speech gets less protection is well established. Cores whatcott. Hate speech silences marginalized voices.

Also cites anti SLAPP scc case

This speech lies far away from the core values of 2b

Demeaning and discrimatory speech is at the outer edge of 2b

We have heard a lot about freedom of expression, but other charter rights are engaged. Like right of trans people to access healthcare

In Ontario psychologists play crucial gatekeeper role for trans people

They are one of the professions that must sign off for gender affirming surgery

Trans people must also be free from degrading and discrimatory statements under s 15

And in response to a question, a psychologist saying they have a problem with trans people can engage the regulator

Cites Christian medical

That concludes egale. Now up for reply

Gourlay for Peterson says the last submissions by egale are outside the scope of this proceeding

This isn't about balancing under s 15, they're expanding the scope of the case

In response to the "pack of lies" comment, counsel was referring to the wrong complaint. The complaint counsel for college cited was about emails. The pack of lies comment was about a different complaint

There is no legal principle to prohibit a professional from denying false allegations

On saying the speech is of little value, this is always governments argument. Freedom of expression isn't needed to protect popular speech. Speech that can offend is not at the periphery of protection.

And when it engages political and social issues it is at the core even if it is caustic. We cannot lose sight of that.

Counsel for Peterson says 2b is engaged. Ever since Irwin toy a meaningful burden on expression is enough. This is enough. He's been told his speech is bad and to go to a coach who will decide if it's good enough. That's a meaningful burden on speech

On whether this was least intrusive option, the college has skipped a stage. It assumes there is a need to sanction at all.

Lofty and general rules are not self defining. In broadest scope the rules and ethics can take in anything. Anything that offends. Rarely is something called demeaning if one agrees. That's why an analysis is needed.

And these reasons lack that analysis.

The college spent little time engaging with the icrc reasons. And is supplementing the icrc reasons. That approach died in vavilov. This Court would fall into error if it followed that path.

The college didn't engage in the analysis because there was none

On costs now. $25k all in on costs. Interveners no costs for or against. All in agreement.

That wraps everything up for the day! I'll be summarizing the proceeding in a youtube video tonight, you can watch here

youtube.com/@theCCF

@UnrollHelper