Can freedom of speech be limited by the Professional Code?
Can freedom of speech be limited by a professional’s ethical obligations? This is what the Conseil de discipline des comptables professionnels agréés du Québec (hereinafter, the “Conseil”) answered in a recent decision1.
In this case, the Syndic Adjoint of the Ordre des comptables professionnels agréés du Québec filed a complaint before the Conseil du Québec against a member of the professional organization. He is accused, among other things, of having failed to act with dignity, of having damaged the good reputation of his profession and of having committed acts derogatory to the honour or dignity of the profession.
The complaint concerns a Comptable professionnel agréé (hereinafter, “CPA”) who, from May to June 2020, i.e. at the very beginning of the COVID-19 pandemic, decried and challenged the health measures taken by the government. Adopting a doctoral and convincing attitude, the latter repeatedly protested, via social networks, against the public health measures. He also questioned the seriousness of the pandemic, even its existence. He invited people to adhere to his opinions, without making nuances between his personal convictions and his role as a professional. He also used his professional title to try to add credibility to his speeches.
In the syndic’s opinion, the comments made by the professional in question contained statements that were outside his field of expertise and were not based on reasonable grounds. He also allegedly made inappropriate comments to the syndic of his professional order. These elements led the syndic to file a disciplinary complaint against the CPA.
In this decision, the Conseil had to decide, among other things, whether the respondent had contravened his code of ethics as well as section 59.2 of the Professional Code2, which provides that “no professional may engage in an act derogatory to the honour or dignity of his profession3“.
Decision
The Conseil recalls that in order to constitute disciplinary misconduct, a professional’s behaviour must be sufficiently serious to result in a violation of the principles of morality and ethics. The behaviour denounced by a disciplinary complaint must also be of sufficient gravity to qualify as “less than acceptable” behaviour.
The Conseil indicates that, although professionals are free to express their opinions, they must still respect their ethical obligations when their comments are related to their profession. In such cases, a fair balance must be struck between the freedom of speech of these individuals and their ethical obligations, the latter being aimed in particular at preserving the dignity of the profession and the public’s confidence in it. For this reason, the Conseil believes that a professional’s assertions must be assessed against the public’s reasonable expectations of professionalism.
Indeed, the public has the right to expect that a member of a professional order will act with dignity, while avoiding behaviours that harm the good reputation of the profession. Thus, the professional must pay particular attention to the manner in which his or her statements are formulated. They must be made with a certain amount of restraint on their part and in a way that nuances their personal beliefs about their role as a professional. Statements made by members of professional orders must also be based on reasonable grounds or made in good faith by them. Without these guidelines, statements made by professionals would not meet the public’s reasonable expectations and public confidence in the professions would be compromised.
With respect to the applicable principles, the Conseil cites the Pilon case4, in which the Conseil indicates the elements that must be analyzed in order to determine whether comments made by a professional constitute acts derogatory to the honour and dignity of the profession:
“- Whether the respondent’s comments were made in good faith or are based on reasonable grounds.
– Whether they are among the comments that the general public has a right to expect from a CPA.
– Whether they are likely to cause the public to lose confidence in the profession.
– The manner in which they were made and their frequency.
– The reaction of the public, if any.” (our translation)
After reviewing all of the former CPA’s statements, comments and declarations, the Conseil concludes that, in this case, the statements do not meet any of the evaluation criteria and that his behaviour is derogatory to the honour and dignity of the profession.
Many of the statements in question questioned the government’s decisions, equated the pandemic situation with Nazi Germany, made thinly veiled threats to specific individuals in the government, and incited hatred and violence, all the while often introducing his CPA title in support of the alleged thoroughness and truthfulness of his statements.
The Conseil concluded that the protection of the public was also at stake since the professional frequently used his professional title to lend credibility to his claims. The Conseil found the former CPA guilty of contravening the provisions of its Code of ethics and section 59.2 of the Professional Code.
Conclusion
In short, whether on social networks or through traditional media, members of professional orders can express themselves freely, like any other citizen. They also have the right to make sharp criticisms on certain subjects. However, because of their special status in society, professionals must act professionally whenever their professional title is at stake.
Consequently, when they use their title, professionals must show a certain restraint, since they represent the entire profession they practice. Their behaviour, because of the impact it may have on society, is thus subject to compliance with ethical obligations, which include preserving the dignity and honour of their profession. This last obligation aims not only at preserving the image of the profession, but also the confidence that the public has in it. In this way, professionals, when expressing themselves publicly and giving their opinions, must show moderation, namely when the subjects concerned are beyond their professional competence. They must therefore express themselves in a balanced manner in order to reflect the professionalism that society is entitled to expect from them.
The right to freedom of speech cannot and will not protect a professional who makes speeches that contravene his or her ethical obligations. Finally, it is important to remember that being a member of a professional order is not a right, but a privilege, which must be earned and which therefore requires respect for the honour of the profession.
It is important to note, however, that there is some debate in this regard and that many experts believe that professional orders go too far in condemning members who have simply expressed themselves and given their personal opinions on one or more controversial current events5. Consequently, many are even of the opinion that certain convictions could potentially be overturned by the higher courts and thus mark out and clarify the professional obligations related to freedom of expression.
Thus, although no decisions have yet been rendered in this regard, it is not impossible that aggrieved professionals could win their case by appealing. A follow-up of the decisions in this regard in the coming months could shed light on this issue, since the higher authorities may soon be called upon to rectify a situation that many have described as an “ethical lapse” and to re-establish the right balance between freedom of expression and ethical obligations.
In addition, it is important to note that the process of investigation by the syndic of a professional order has a great deal to do with the outcome of the case and the decision whether or not to file a complaint with the Disciplinary Council of the professional order in question. Consequently, any professional who is the subject of a professional inquiry should seek the services of a lawyer from the outset of the process in order to be properly equipped and informed of his or her obligations under the circumstances. To this end, our professional law team will guide you.
Written with the collaboration of Mr. William Landry, law intern.
1 Comptables professionnels agréés (Ordre des) c. Blais, 2022 QCCDCPA 3 (CanLII).
2 Professional Code, RLRQ, c. C-26, section 59.2.
3 Id.
4 Comptables professionnels agréés (Ordre professionnel des) c. Pilon, 2020 QCCDCPA 40.
5 Scali, D. (16 juillet 2022). Des dizaines de travailleurs punis pour leurs propos antivaccins ou anti-mesures sanitaires. Le Journal de Montréal.