Attempts to Restrict Freedom of Expression: Regulatory Discipline Proceedings Against Members of Professions

[135]  Section 2 of the Charter provides as follows:

2.  Everyone has the following fundamental freedoms:

(a) freedom of conscience and religion;
(b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;
(c) freedom of peaceful assembly; and
(d) freedom of association.

[136]  The s. 2(b) right to freedom of expression is a core constitutional right.  As Cory J.A. (as he then was) said in R v Kopyto (1987), 1987 CanLII 176 (ON CA), 47 DLR (4th) 213 (WL) (Ont CA) at para 194 [Kopyto]:

Considering now the purpose of s. 2(b), it is difficult to imagine a more important guarantee of freedom to a democratic society than that of freedom of expression.  A democracy cannot exist without the freedom to express new ideas and to put forward opinions about the functioning of public institutions.  These opinions may be critical of existing practices in public institutions and of the institutions themselves.  However, change for the better is dependent upon constructive criticism.  Nor can it be expected that criticism will always be muted by restraint.  Frustration with outmoded practices will often lead to vigorous and unpropitious complaints.  Hyperbole and colourful, perhaps even disrespectful, language may be the necessary touchstone to fire the interest and imagination of the public to the need for reform and to suggest the manner in which that reform may be achieved.

[137]  In R v Keegstra, 1990 CanLII 24 (SCC), [1990] 3 SCR 697 at 810–811 [Keegstra], McLachlin J. (as she then was), in her dissenting reasons, affirmed the three values underlying the s. 2(b) guarantee seeks to promote, which were summarized in Irwin Toy at pages 976–977 as, “(1) seeking and attaining the truth is an inherently good activity; (2) participation in social and political decision-making is to be fostered and encouraged; and (3) the diversity in forms of individual self-fulfillment and human flourishing ought to be cultivated in an essentially tolerant, indeed welcoming, environment not only for the sake of those who convey a meaning, but also for the sake of those to whom it is conveyed”.  As Dickson CJC, for the majority, said, “[t]he connection between freedom of expression and the political process is perhaps the linchpin of the s. 2(b) guarantee, and the nature of this connection is largely derived from the Canadian commitment to democracy” (at 763–764).  In Groia at paragraph 117, Moldaver J. described the importance of these core values when considering whether an unjustifiable infringement has been made out, noting that the “[t]he protection afforded to expressive freedom diminishes the further the speech lies from the core values of s. 2(b): Keegstra, at pp. 760–62; RJR-MacDonald Inc. v. Canada (Attorney General), 1995 CanLII 64 (SCC), [1995] 3 S.C.R. 199, at paras. 72–73”.

[138]  In Kopyto, Cory J.A. explained what has often been considered the most important reason freedom of expression cannot be unduly constrained to avoid offending others.  Criticism will tend to upset the target of that criticism.  Criticism, even blunt criticism, is essential to healthy debate.  Indeed, it is when our expression may be objectionable to others that it needs protection.  This fragile and crucial principle is reflected in this statement by La Forest J. in Ross:

59  Section 2(b) must to be given a broad, purposive interpretation; see Irwin Toy Ltd. v. Quebec (Attorney General), 1989 CanLII 87 (SCC), [1989] 1 S.C.R. 927. …

60  Apart from those rare cases where expression is communicated in a physically violent manner, this Court has held that so long as an activity conveys or attempts to convey a meaning, it has expressive content and prima facie falls within the scope of the guarantee of freedom of expression; see Irwin Toy, supra, at p. 969.  The scope of constitutional protection of expression is, therefore, very broad.  It is not restricted to views shared or accepted by the majority, nor to truthful opinions.  Rather, freedom of expression serves to protect the right of the minority to express its view, however unpopular such views may be; …

[139]  Justice Abella spoke to this issue in Doré in the context of the professional discipline issue engaged in that case, being civility in the legal profession.  Although her comments were directed to reasonableness review of a disciplinary decision, the substance of what she said as to the need to balance a proper regulatory purpose and freedom of expression applies equally on appellate review by a court.  Having noted the importance of professional discipline to prevent incivility in the profession, she said this:

[63]  But in dealing with the appropriate boundaries of civility, the severity of the conduct must be interpreted in light of the expressive rights guaranteed by the Charter, and, in particular, the public benefit in ensuring the right of lawyers to express themselves about the justice system in general and judges in particular …

…

[65]  Proper respect for these expressive rights may involve disciplinary bodies tolerating a degree of discordant criticism. …

[66]  We are, in other words, balancing the fundamental importance of open, and even forceful, criticism of our public institutions with the need to ensure civility in the profession.  Disciplinary bodies must therefore demonstrate that they have given due regard to the importance of the expressive rights at issue, both in light of an individual lawyer’s right to expression and the public’s interest in open discussion. …

[140]  What, then, is an appellate court’s task when reviewing whether the decision of an administrative body unjustifiably infringed a Charter right?  In substance, that task is summarily described in Doré at paragraph 6, despite the fact that the standard of review is correctness.  The Court’s task is to determine whether the decision-maker disproportionately limited the Charter right or struck an appropriate balance between the Charter right and statutory objectives.  In Law Society of British Columbia v Trinity Western University, 2018 SCC 32, [2018] 2 SCR 293 [Trinity Western], the majority – referring to Doré and to Loyola High School v Quebec (Attorney General), 2015 SCC 12, [2015] 1 SCR 613 [Loyola] – put the matter this way:

[58]  Under the precedent established by this Court in Doré and Loyola, the preliminary question is whether the administrative decision engages the Charter by limiting Charter protections — both rights and values (Loyola, at para. 39).  If so, the question becomes “whether, in assessing the impact of the relevant Charter protection and given the nature of the decision and the statutory and factual contexts, the decision reflects a proportionate balancing of the Charter protections at play” (Doré, at para. 57; Loyola, at para. 39).  The extent of the impact on the Charter protection must be proportionate in light of the statutory objectives.

[141]  I prefer to approach the analysis as relating to rights and freedoms, not values.  I note in this regard the reasoning in the separate concurring reasons of McLachlin CJC and Rowe J. in Trinity Western at paragraphs 115 and 166–175; and of Côté and Brown JJ. (dissenting) at paragraphs 306–311.

[142]  In Loyola, Abella J. defined a proportionate balancing as “one that gives effect, as fully as possible to theCharter protections at stake given the particular statutory mandate” (at para 39) and commented that “[s]uch a balancing will be found to be reasonable on judicial review” (at para 39).  Correspondingly, an administrative decision that gives effect as fully as possible to the Charter protection at issue – here, freedom of expression – will be found to be correct on appeal.  The analysis of whether this balance has been achieved is a highly contextual exercise and there may be more than one proportionate outcome: Loyola at para 41; Trinity Western at para 81.  However, that does not mean deference is accorded to the administrative decision-maker.  Rather, the analytical framework is analogous to that which applies on a judicial review or appeal where a breach of procedural fairness is alleged.  There, the standard of review is also correctness despite the fact that participatory fairness may be achieved in more than one way: Mercredi v Saskatoon Provincial Correctional Centre, 2019 SKCA 86 at paras 26–29, [2020] 4 WWR 212.

[143]  In Trinity Western, the majority summarized the purpose of the final stage of the proportionality analysis, being the impact of the administrative decision on the Charter right:

[81]  The reviewing court must consider whether there were other reasonable possibilities that would give effect to Charter protections more fully in light of the objectives. …

[82]  The reviewing court must also consider how substantial the limitation on the Charter protection was compared to the benefits to the furtherance of the statutory objectives in this context (Loyola, at para. 68; Doré, at para. 56).  The Doré framework therefore finds “analytical harmony with the final stages of the Oakes framework used to assess the reasonableness of a limit on a Charter right under s. 1: minimal impairment and balancing” (Loyola, at para. 40).  In working “the same justificatory muscles” as the Oakes test (Doré, at para. 5), the Doré analysis ensures that the pursuit of objectives is proportionate.  In the context of a challenge to an administrative decision where the constitutionality of the statutory mandate itself is not at issue, the proper inquiry is whether the decision-maker has furthered his or her statutory mandate in a manner that is proportionate to the resulting limitation on the Charter right.

[144]  In Groia, Moldaver J. made the important point that the proportionality analysis as to a finding of professional misconduct by the law society which impacts freedom of expression has two aspects.  That finding must reflect a proportionate balancing of the law society’s statutory objective with the lawyer’s expressive freedom.  In addition, the law society’s “approach to assessing whether a lawyer’s uncivil communications warrant law society discipline must allow for such a proportionate balancing to occur” (Groia at para 113).  Justice Moldaver found that the law society appeal panel had met the second requirement by undertaking a “fundamentally contextual and fact‑specific analysis” of the in-court statements by Mr. Groia impugning the conduct of opposing counsel.  Justice Moldaver explained that conclusion:

[118]  The flexibility built into the Appeal Panel’s context-specific approach to assessing a lawyer’s behaviour allows for a proportionate balancing in any given case.  Considering the unique circumstances in each case — such as what the lawyer said, the context in which he or she said it and the reason it was said — enables law society disciplinary tribunals to accurately gauge the value of the impugned speech.  This, in turn, allows for a decision, both with respect to a finding of professional misconduct and any penalty imposed, that reflects a proportionate balancing of the lawyer’s expressive rights and the Law Society’s statutory mandate.

[119]  In addition, the Appeal Panel’s reasonable basis standard allows for a proportionate balancing between expressive freedom and the Law Society’s statutory mandate.  Allegations impugning opposing counsel’s integrity that lack a reasonable basis lie far from the core values underpinning lawyers’ expressive rights.  Reasonable criticism advances the interests of justice by holding other players accountable.  Unreasonable attacks do quite the opposite.  As I have explained at paras. 63-67, such attacks frustrate the interests of justice by undermining trial fairness and public confidence in the justice system.  A decision finding a lawyer guilty of professional misconduct for launching unreasonable allegations would therefore be likely to represent a proportionate balancing of the Law Society’s mandate and the lawyer’s expressive rights.

(Emphasis in original)

[145]  The specific contextual factors, including the concern with the reasonableness of Mr. Groia’s allegations, reflect the facts in Groia.  The requirement to undertake a complete contextual analysis in assessing the impugned speech, on the other hand, would apply in every case.  As Moldaver J. put the matter, “a law society disciplinary tribunal must always take into account the full panoply of contextual factors particular to an individual case before making that determination” (at para 83).  The same is true of the Discipline Committee of the SRNA.