It’s been widely reported that the College of Psychologists of Ontario ordered clinical psychologist Jordan Peterson to undergo social media training, at his own expense, or risk losing his licence to practice. The Ontario Superior Court upheld the ruling claiming that courts should defer to an administrative body’s decision provided it is “reasonable.” But is it reasonable for our courts to defer to administrative bodies that increasingly believe their job is to police their members’ speech and send them to mandatory re-education camp?
Writing for the court, Justice Schabas states that “The role of courts in these circumstances is to review, and they are, at least as a general rule, to refrain from deciding the issue themselves,” and the court must balance any charter infringement against the administrative agency’s statutory objectives. This does not mean that the court should seek to ascertain what decision it might have made instead. Nor should the administrative tribunal’s reasons “be assessed against a standard of perfection.” They need not include all arguments, nor should they “always be expected to deploy the same array of legal techniques that might be expected of a lawyer or judge.”
Quoting an earlier Supreme Court decision, Schabas concedes, “‘Administrative justice’ will not always look like ‘judicial justice’ and reviewing courts must remain acutely aware of that fact.” This admits that the court will uphold decisions the court itself would have rendered differently. Moreover, administrative decisions are likely to be inferior when assessed against a stricter standard of justice. But we are talking about violations of Section 2, the fundamental rights and freedoms of Canadians. Why should courts defer to watered-down versions of justice dispensed by “experts” who are not trained as judges?
It is to the courts that we ultimately look for just resolutions to conflicts. Tribunals can claim no special expertise with respect to applying the Charter of Rights and Freedoms to protect freedom from government incursions. The court should be the final authority regarding these disputes, not the tribunal. By setting the bar so low, the courts are basically giving the priority to the agency that has violated the charter right and placing the burden of proof on the individual or minority group to show that such a violation is unreasonable.
At the same time, what is determined to be reasonable is left to the tribunal to declare and the courts will basically accept its determination on the ground that the court is “to refrain from deciding the issue themselves.” Essentially, one party to the case gets to decide the terms of the debate.
In “Forgotten Foundations of the Canadian Constitution” (LexisNexis, 2022), Derek Ross outlines how we got into this mess. When the charter was being drafted, Section 1 was added to indicate that no right is absolute: rights are guaranteed “subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.” Yet early courts understood this to mean that Section 1 “serves first and foremost to protect rights.” Then-justice minister Jean Chretien explained to the Special Joint Committee on the Constitution that “we are putting [the charter] there for one reason, to protect the minorities against the abuses of the majority.”
According to Ross, this has lowered the standard for rights infringements over time. The “majority’s decision in Trinity Western suggests that section 1’s standard may now be even lower; the majority maintained that as long as an administrative decision ‘falls within a range of possible, acceptable outcomes, it will be reasonable.’”
The majority in the TWU decision acknowledged the Law Society of Upper Canada violated TWU’s “fundamental freedoms,” yet they upheld the tribunal’s decision anyway. Dissenting justices Côté and Brown said the ruling effectively turned the protective shield of the charter into a sword. The court was no longer protecting fundamental freedoms, it was enforcing conformity to majoritarian values.
Our courts should return to the original intention of Section 1 and pay less deference to administrative tribunals. A much higher burden of proof needs to be demanded from these tribunals whenever they have violated the charter. After all, the Constitution and the charter are meant to be the supreme law to which everyone owes the greatest deference, including judges and administrative agencies.