What the Jordan Peterson ruling means for free speech
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Summary
In this week's episode, we discuss the Supreme Court of Canada's ruling in Jordan Peterson's case against the Ontario College of Psychology regarding the mandatory re-education training required of all professionals in order to speak properly, and the implications for freedom of speech.
Transcript
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all of that is aside from the big story of the day though jordan peterson
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having a ruling against him in court in ontario now just to avoid getting totally into the legal
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weeds here he brought an application for judicial review of the ontario college of psychologists
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decision about that mandatory re-education training and the court ultimately ruled that the college
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was within its purview to impose such a requirement on peterson they basically said that
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yeah he's still allowed to talk he's allowed to tweet so it's not really affecting his right to
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freedom of expression the college is you know trying to reduce harm and all of that stuff
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a lot of implications of this we need to dig into here want to welcome to the show josh de haas who
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is a counsel for the canadian constitution foundation which was an intervener in this case
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josh it's good to talk to you thanks for coming on today happy to be here so let's start first off
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with what was really at stake here because obviously the college is a private organ but it's a creature
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of statute at the same time he can't be a psychologist in ontario without being a member of this college
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so uh what was really the the main thrust of the argument here yeah so um the college of psychologists
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they're a professional regulator so they're private in a sense but they're like you say
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um they're implementing the government's regulations so um they do have to comply by the charter
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um abide by the charter and that means that they have to consider jordan peterson's freedom of speech
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and so what was at stake here was essentially whether professionals whether it's the psychologist
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in jordan peterson's case or you know lawyers like me doctors nurses anyone regulated by one of these
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um professional regulator bodies uh whether what they say on social media whether it's you know
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political commentary or cultural commentary whether that sort of off-duty conduct
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can lead to discipline in their professional capacity so basically what's at stake is the
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ability of any professional in canada to uh participate in debates and say you know sometimes
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controversial or politically incorrect things and what the court seems to have decided here is that
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it's okay for the college to um to force people into re-education if they you know say uh put out mean
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in tweets basically i found there to be a fair bit of i i don't want to speak ill of judges entirely
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because i don't want to put you in an awkward situation as a relatively fresh lawyer but
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there seemed to be some very strange revisionism in in some of the arguments here i mean one when
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you bring up discipline that i found noteworthy is the court saying that this was not
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a disciplinary order and i wonder what sort of technicality they were hinging that on
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yeah so that that caught my eye too this is a this is an argument that the that the college made
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essentially that you know he wasn't he what he didn't face any actual discipline this is just sort
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of a remediation and so it's just sort of this you know minor step where they just said you know meet
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with some coach and this coach is going to teach you you know a world-famous psychologist uh formerly a
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professor at u of t who's been in all kinds of uh different media they're going to teach you how to
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you know speak professionally when you're out there in the public so um it's a very strange argument i
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thought they made that argument because uh you know maybe that that would lead the um the court to say
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oh we can't really decide this it's premature in some sense but i don't really understand that either
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i think you know if you are forced uh to spend your own money to hire a coach who's going to teach
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you what you're allowed to say and how you're allowed to say it i'm pretty sure that counts as
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as discipline yes and certainly when the consequences of not complying uh will carry discipline it is a
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step towards discipline because basically they're not even requiring this of everyone they're going to
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him directly and taking issue with his tweets and saying that you've warranted this sort of
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re-education and it's not even where you could say it's just about box checking or once you've
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gone through the course you can just carry on doing what you're doing they're effectively saying there
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is a correct way to for you to conduct yourself and you're not doing it yeah that's right and uh
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what's interesting too here is the court you know when the court's considering whether a charter right
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like free expression has been violated it has to be um if the government and in this case if the
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regulator is going to limit that it has to be minimally impairing of that right so i think this
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sort of allowed the court to say well you know it's not really discipline it's just this initial sort
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of step um that could potentially one day lead to discipline it's no big deal it's just meeting with a
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coach for several months and having them teach you you know how to speak properly um but it has really
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big implications like the fact that you know all the media including you are talking about this today
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is to sort of send a warning shot to other people in various professions that they better watch what
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they say and make sure it's politically correct or else uh they might face discipline we were talking
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about this a little bit yesterday in the context of medical associations and and how physicians
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colleges have had a very significant crackdown i think on their uh individual members
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right to speak freely on on covet issues and whether we're talking about law societies medical
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colleges the psychologists college for jordan peterson i mean anything it could be the regulatory
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colleges for massage therapists for psychotherapists it doesn't matter i mean the these bodies are all
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tremendously powerful because you don't really have a right to operate in your chosen field without
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being a member of them and i'm just wondering in general if this is an area of law that has been
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fairly well established in which these organizations have this much power or if this is kind of a
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recent advent in in judicial reviews yeah so it's it's come up a lot more lately and part of that has to
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do with the with the pandemic um basically you know there's there's always been this idea that regulators
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can uh you know correct speech they can take care of uh sort of the image of the rate of the profession
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in the eyes of the public and um you know we at the canadian constitution foundation we don't disagree
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with that like the regulators do have some um some role established in law to um to prevent harm to
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you know people who are for example patients of jordan peterson we don't take issue of that but
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it seemed to come up a lot lately that just things people say at uh at um you know on twitter or whatever
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are are are being policed um you know for example it came up a lot with nurses during the pandemic
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you know nurses that opposed vaccine mandates maybe because they've been exposed to vaccine mandates
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with the flu shot for decades and don't don't like them or nurses that criticized uh mask mandates and so
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um it's not a completely new area of law but it's it's coming up more and more well and i should point
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out too that we're not even talking about in some cases tweets that are i would i would argue outside
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of what a psychologist who's not jordan peterson could or should be weighing in on i mean one of the
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tweets they brought up was him commenting on the transgender actor elliott page formerly ellen page
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and uh you know the transgender issue is entirely fraught within psychology one of the big debates we have
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in medicine right now is how to treat especially children that start identifying by a different gender
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than what their biological sex would dictate so the idea that a psychologist cannot have
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heterodox opinions on the transgender issue and express them uh is i think insanely insanely offensive
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to what uh professionals should be encouraged to do which is debate live issues and hot issues in their
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field yeah that's right and uh it's it's probably even worse than people realize in this particular case
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because uh what jordan peterson said about um the actor elliott page uh formerly ellen page was uh just
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used used their their original pronoun that they used for decades because in peterson's view and you know i
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don't necessarily agree with him but in his view it's um you know it's bad for the patient to um to to sort of
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allow them to choose their pronoun because in his view that's sort of engaging in a delusion and they're
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better off if they don't do that so you know you can be on one side of that issue or the other but
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if anybody should be able to talk about that it's it's psychologists right yeah and i'm curious where
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you think this is going to go because i i know jordan peterson has been fairly unrepentant on this and
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i know that the ccf is not uh representing him you're intervening so you don't i believe get to appeal
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on his behalf but is your sense that this will go to an appeal and that if so it could actually have
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a strong basis of success yeah i think um so i think uh it's pretty clear that jordan peterson
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he doesn't intend to appeal so um he'll take this to the court of appeal he'll ask them if uh it's
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something that uh that they should hear and if they agree to hear it then you'll get a three panel
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um a three-member panel of the court of appeal most likely deciding whether uh whether this
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divisional court which is uh what what put out the judicial review decision today whether they got
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that right yeah and i should say jordan peterson tweeted about this uh and he vowed to make every
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aspect of this public and we will see what happens when utter transparency is the rule and i think
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if the college gets its way and jordan peterson has to be subjected to this i think they may
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uh find themselves on the losing end of that much like when ezra levant many years ago uh filmed the
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entire proceedings before the uh alberta human rights tribunal so i i think uh very much something
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that people want to see uh josh de haas council with the canadian constitution foundation good to have
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you on thanks for doing it thanks so much thanks for listening to the andrew lawton show
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