Josh Dehaas: B.C. realtor defends his free speech against intrusive regulatory body

A British Columbia regulator has withdrawn a caution letter sent to a realtor, accusing him of engaging in professional misconduct for posting his political opinions on social media. This decision ought to be a reminder to professionals across the country that, although they do need to be careful when they offer their opinions, they do not give up their free speech entirely when they join a profession.

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On June 22, the B.C. Financial Services Authority (BCFSA) sent Corbin Chivers a caution letter in response to two posts he made on Instagram. In the letter, the BCFSA called Chivers’ comments “polarizing,” “inflammatory” and “discriminatory,” and cautioned that his words could bring the real estate industry into disrepute. It suggested Chivers could be disciplined if he made more such posts in the future. This was a clear attempt to censor him.

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The posts in question were critical of policy related to Indigenous peoples, but they clearly didn’t constitute professional misconduct. The first post said: “Bands are chasing endless land claims on top of the cash handouts, demanding compensation and control without any end in sight. This isn’t fairness … it’s the opposite of reasonable treatment.

“Worse, they’re the ones blocking major resource projects across the country, killing off billions in potential revenue. Ironic, right? They demand the money but sabotage the very developments that could generate it to pay them.”

The second post was made regarding the decision to close Joffre Lakes Provincial Park to non-Indigenous visitors. It stated: “Wrong skin colour? Stay out. This isn’t reconciliation. This is racist segregation with better marketing.”

These comments are quintessential political expressions. Making space for political debate is one of the fundamental reasons the Charter of Rights and Freedoms protects freedom of expression. They may be offensive to some people, but the Supreme Court of Canada has said that there is no right not to be offended in Canada. We simply can’t govern ourselves peacefully if those in power, including state-empowered regulators like the BCFSA, can shut down speech because some find it offensive.

After Chivers retained my organization, the Canadian Constitution Foundation, the BCFSA wrote to confirm that the letter has been withdrawn, and that it will not form part of Chivers’ record. This is an important win. Of course, this could have gone the other way, had it made it in front of the wrong judge.

Readers may recall that the College of Psychologists of Ontario ordered Jordan Peterson to take a re-education course after he called the actor Elliot Page “her” and used Page’s birth name; called then-Ottawa city councillor Catherine McKenney an “appalling self-righteous moralizing thing,” called Gerald Butts a “prik” and referred to a plus-sized Sports Illustrated model as “not beautiful.”

All of Peterson’s comments were within the realm of offensive but not hateful political speech and therefore not the type of speech that can be limited under Canadian law. Yet, according to the Divisional Court decision by Judge Paul Schabas, the panel did not “prevent Dr. Peterson from expressing himself on issues of interest to him and his audiences,” but rather was “focused on concerns over his use of degrading or demeaning language.”

Are we to assume Peterson would not have faced the wrath of the regulator if he had found slightly less offensive ways of expressing his opinions of these people? I have my doubts.

The only way to really prevent this is for governments to pass legislation blocking regulators from censoring speech, like Alberta did with its Regulated Professions Neutrality Act. For now, professionals clearly still need to be careful. But Chivers’ success getting the BCFSA to back down is a reminder that they still retain some degree of freedom of speech.

National Post

Josh Dehaas is interim litigation director of the Canadian Constitution Foundation, a charity dedicated to defending Canadians’ rights and freedoms.

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