The CCF was granted intervener status by the Saskatchewan Court of Appeal on June 4, 2019 to intervene in an important freedom of speech case.
Freedom of speech is increasingly under attack from professional bodies seeking to regulate what their members can say. In most cases, this censorship would not be constitutional if it was imposed directly by legislation, but courts are often too deferential when the restrictions are imposed by arms of the state like professional regulators.
In 2015, Carolyn Strom, a registered nurse who has dedicated her life to helping others, posted comments on social media relating to the end-of-life care that her grandfather had received at a care facility in Macklin, Saskatchewan. In the comments, Strom politely but pointedly criticized the care her grandfather had received from some of the facility’s staff. For this, Strom was brought before a professional disciplinary committee and found to have engaged in professional misconduct. She was ordered to pay $26,000. This despite the fact that the disciplinary committee did not find any factual problems with her post, which was written in non-inflammatory language and deliberately did not reveal the names of any of the staff whose professionalism she criticized (she had also acknowledged the good care her grandfather received from some of the staff). The text of the post can be found in the court’s decision, linked to below.
On April 11, 2018, the Saskatchewan Court of Queen’s Bench (SKQB) held that it had to show extreme deference to the decision of the committee and ruled that the decision was “reasonable.” Strom is now appealing to the Saskatchewan Court of Appeal.
The issue at the heart of this appeal is whether Strom is free to speak about her first-hand experience of the poor quality medical care that her ailing grandfather received, or whether the province of Saskatchewan—through the Saskatchewan Registered Nurses Association—can restrict her right to freedom of expression and stop her blowing the whistle on what she perceived as poor quality care.
The SKQB reached its decision by applying the Supreme Court of Canada’s Doré case, which the court held requires Canadian courts to defer heavily to rulings of state decision-making bodies, even when Charter rights are being violated. Instead of a reviewing whether the administrative decision-maker came to the correct result in deciding whether the violation of a Charter right was justified, under Doré, courts instead review whether the administrative decision-maker came to a so-called “reasonable” result, even if the court disagrees with the result and would have decided the matter differently.
Under the SKQB’s loose interpretation and application of Doré, courts would at times have to shirk their duty to uphold the constitutional rights and freedoms of Canadians by giving deference to decisions they believe are incorrect, as long as they fall on a loose and undefined spectrum of “reasonable” results. As the SKQB judge said in the Strom decision:
The significance of giving deference is that such an administrative body’s decision can be reasonable even if it is not correct.
In all of this, it cannot be forgotten that Strom is facing a significant financial penalty and has been forced to hire a lawyer and defend herself all because she chose to speak out on behalf of her ailing grandfather who was receiving inadequate care.
CCF staff lawyer, Derek From said:
As a nurse, Carolyn Strom has dedicated her life to helping others. No Canadian should ever face these sorts of financial and professional pressures just for speaking out honestly on behalf of an ailing loved one, especially since the Charter guarantees the right to free speech.
Canadians should be able to rely on their courts to defend the rights and freedoms guaranteed to them by the Charter. But increasingly, as in this case, the courts are deferring to decisions of state administrative bodies, even when fundamental constitutional rights like freedom of speech are being undermined by those bodies. When the Charter rights of Canadians are violated by the government, it is not enough for courts to take a deferential, hands-off approach: they must instead apply a rigorous analysis to ensure that such violations are compelling, narrowly-tailored, and proportional.