Perhaps one of the most talked about discipline cases in recent memory is not going to the Supreme Court of Canada. This January’s Saskatchewan Court of Appeal decision in Whatcott v. Saskatchewan Association of Licensed Practical Nurses, 2008 SKCA 6 has generated widespread discussion across the country. At a recent meeting of regulators in Newfoundland, many were already familiar with the case and discussed its possible appeal to the Supreme Court of Canada. However, on May 29, 2008, that Court declined to hear the appeal.

The case raises issues about when a member’s conduct in their private life can be the subject of disciplinary action and about the circumstances in which a professional regulator can restrict a member’s freedom of expression.

The Court of Appeal described the facts as follows:

William Whatcott was a member of the Saskatchewan Association of Licensed Practical Nurses ("SALPN"). In 2002, he picketed in front of the offices of Planned Parenthood Regina ("PPR"). As a result of a complaint made by PPR to the SALPN, two charges of professional misconduct were levelled against him…. At hearings at which Mr. Whatcott testified, he essentially admitted the key allegations contained in each of the charges.

In relation to the first charge, he admitted:

(a) he carried signs with pictures of foetuses and captions saying "Planned Parenthood Aborts Babies";

(b) he shouted such phrases as "Planned Parenthood will give you Aids," "This place is the world's biggest baby killer," "Don't let Planned Parenthood corrupt you," and "Planned Parenthood murders innocent babies;" and

(c) he stated that "fornicators will not inherit the kingdom of heaven."

In relation to the second charge, he admitted:

(a) he demonstrated in front of PPR on the eve of his August 27, 2003 discipline hearing;

(b) he carried signs with the words "Planned Parenthood refers for abortions," "God's gift of life" and "choice is abortion;"

(c) he said "Planned Parenthood corrupts young women" and "Planned Parenthood kills babies with chemicals" or words to that effect.

The Discipline Committee found Mr. Whatcott guilty of professional misconduct for the manner in which he conducted himself even though he was off duty and did not refer to his status as a licensed practical nurse. The Committee said:

The mere fact that Mr. Whatcott was picketing is not in and of itself professional misconduct.  However, the manner [in] which he conducts himself while picketing may constitute professional misconduct.  Lying and uttering defamatory comments are unprofessional activities in that they harm the standing of the profession and bring members into disrespect….Mr. Whatcott showed great disrespect to the Association's discipline process in repeating the impugned conduct while the very question of the propriety of that conduct was a matter before this Committee.

The Saskatchewan Court of Queens Bench dismissed Mr. Whatcott’s appeal of the finding. He then appealed to the Saskatchewan Court of Appeal.

The Court of Appeal focused on the constitutional issue related to freedom of expression. The Court had little difficulty concluding that the freedom had been infringed:

It is quite clear that not only the purpose, but the effect of the Discipline Committee’s decision, is to infringe Mr. Whatcott’s freedom of expression. The SALPN does not want him to picket in the manner that he has chosen.  Thus, the purpose of the decision is to curtail his communication. The effect of the decision is the same. He cannot picket in the manner he has chosen and be a member of the SALPN.

The tougher issue was whether that infringement constituted a reasonable limit prescribed by law and demonstrably justifiable in a free and democratic society pursuant to s. 1 of the Canadian Charter of Rights and Freedoms.

The Court indicated that the Discipline Committee had to justify this infringement in its reasons based on evidence. Since the Discipline Committee did not address the issue at all and there was little evidence on the point, the Court concluded that the infringement had not been justified. On this point the Court was unpersuaded by the rationale of the Discipline Committee that Mr. Whatcott’s conduct brought disrepute to the profession. Even if true, that would not be a sufficient reason to justify infringing his freedom of speech in these circumstances. A more potent rationale might have been his interference with the provision of health services and the emotional harm he may have been causing to vulnerable clients and to colleagues.

Freedom of expression issues have also arisen recently by the Competition Bureau of Canada in the context of restrictions on advertising by professionals. After an apparent period of silence, it appears that this provision of the Canadian Charter of Rights and Freedoms is having a resurgence in professional regulation matters.

A lesson for regulators is that when Charter or human rights issues are raised, be sure to provide full argument and evidence on the point. For tribunals, the point may be, as difficult a task as it may be, to give reasons when facing constitutional and human rights issues.

A copy of the Whatcott case can be found at: http://www.canlii.org/en/sk/skca/doc/2008/2008skca6/2008skca6.html.

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