Connect with us

MacDonald Laurier Institute

Peterson’s case demonstrates where professional regulators have gone astray

Published

9 months ago

15 minute read

From the Macdonald Laurier Institute

By Stéphane Sérafin

Professional regulators are losing sight of the purpose their disciplinary authority is supposed to serve, to protect society by preserving professional competence.

Members of restricted professions – doctors, lawyers, accountants and psychologists, among others – are subject to the disciplinary authority of their respective professional regulators. This arrangement is intended to ensure a minimum level of professional competence and to protect those relying on these professional services.

This has obvious advantages over purely market mechanisms, at least in theory, owing to the fact that professional regulators can set standards for members that apply before a member has engaged in serious professional misconduct. However, professional regulators have attracted significant controversy in Canada over the past few years as attempts to police members’ off-duty speech and conduct have become a recurring news item.

The problem is that professional regulators are losing sight of the purpose their disciplinary authority is supposed to serve – to protect society by preserving professional competence – and are policing members values for the sake of perceived reputational interests.

While it is tempting to conclude that the difficulties in these controversial cases arise from straightforward regulatory overreach, the problem is more complex. The fact is that regulators have always had the ability to police off-duty conduct, and for good reason, since such conduct may bear directly upon member competence. It is not that regulators are suddenly policing off-duty conduct which used to fall entirely outside their purview, but that the kinds of expression they are trying to censor are no longer focused on protecting society from an incompetent professional but on protecting themselves and their colleagues from association with political views which they find distasteful.

Professional regulators should reverse course, return to their mandates, and focus on ensuring professional competence, not political alignment, among their members.

Consider the best-known Canadian controversy concerning former University of Toronto professor-turned-social-media-influencer Jordan Peterson. As a member of the College of Psychologists of Ontario, Peterson was ordered to undergo social media training following complaints that his social media posts were discriminatory and unprofessional. The College felt that it could make such an order against Peterson without subjecting him to a full disciplinary procedure. It also felt that it could do so solely on the basis of complaints that did not originate with his clients, but arose out of positions that he had publicly staked out on controversial political and cultural issues.

When Peterson challenged the decision through a judicial process, the Ontario Divisional Court found that the College’s decision was reasonable. The Court was of the view that professional regulators had always held the requisite jurisdiction to police member expression, even when that expression did not arise in the context of a member’s strict professional activities. This included the capacity to police expression considered “discriminatory”. Moreover, it was thought to be enough that the expression might adversely impact the reputation of the psychology profession.

The principles invoked by the Divisional Court in this case are difficult to contest in the abstract. To recognize the authority of a professional regulator over a given profession, rather than relying on market mechanisms to ensure basic competence, means that the professional regulator must take a broad view of the kind of conduct that could fall within its ambit.

It would be difficult to claim that the off-duty conduct of a member is entirely without interest for professional regulators, since such conduct can be relevant to determining whether a particular person is fit to remain a member in good standing. An individual who commits a sexual assault outside of work hours, for example, is probably not fit to act as a clinical psychologist, just as someone who embezzles funds in a context divorced from his or her work should probably not be allowed to operate a trust account as a lawyer. No doubt, certain forms of expression that are not directly connected to the member’s professional activities – defaming others, threatening violence, or airing confidential information other than client information – raise similar concerns.

Criminal and civil court processes are not designed to address these concerns, since their purpose is to establish a criminal infringement of community norms and civil liability towards another person, respectively. Not all criminal acts or civil wrongs necessarily impugn a member’s professional competence, and conversely, there may be grounds to sanction a member where the threshold for criminal or civil liability has not been met.

But to say that professional regulators ought to have jurisdiction over the off-duty conduct of their members is one thing; to determine what type of off-duty conduct, specifically, properly attracts their disciplinary jurisdiction is another. The trouble with the Peterson case, as with many of the other recent Canadian controversies, is that the justification offered for the exercise of professional regulatory jurisdiction does not fit the paradigm offered by the examples just referenced, in which the off-duty conduct, including off-duty expression, can be taken to cast doubt on the member’s ability to carry out his or her profession. Instead, these cases present the regulation of off-duty expression by regulators in a manner analogous to the employment context, where the concern is not with the protection of the public interest, but in allowing employers to preserve their own reputation and to avoid vicarious liability for the acts of subordinates.

The view suggested by the Divisional Court in the Peterson case – that professional regulators are simply doing what they have always done – misses the widening focus of regulators beyond professional competence. This widening focus has been precipitated by at least two factors.

First, technological shifts have significantly altered the balance of power between professional regulators and individual members of the public. In an era of social media, an opinion that would have once been expressed to a small audience now finds itself exposed in some cases to an audience of millions. The possibility that someone, somewhere, will find offense, or decide to find offence, with the expression of opinions grows with the scope of the audience. Moreover, the nature of social media is such that any member of that audience can react, in real time, individually or in concert with others, to the opinion being expressed. This means that potentially every public utterance, whether reasonable or not, creates a reputational risk not just for the individual member, but also for the broader profession. Professional regulators are unsurprisingly concerned by this possibility, which affects their own vested interests.

Second, and perhaps more importantly still, broader cultural shifts have also significantly altered the kinds of expressive content that regulators are likely to treat as “unprofessional” or otherwise raising reputational concerns.

Consider another decision, Simone v. Law Society of Ontario, which was narrowly decided by the Law Society of Ontario Tribunal (the body charged with adjudicating complaints against Ontario lawyers and paralegals). In that case, Lisa Simone, an individual seeking membership in the Law Society of Ontario as a paralegal, was subject to “good character review” because of social media posts that she had made which were, among other things, critical of vaccine mandates, the Black Lives Matter organization, and “pride” events. While the Tribunal ultimately decided in favour of the candidate’s good character, and thus her admission as a paralegal, a majority did so apparently on the sole basis that the candidate had expressed remorse for the social media posts in question.

As with the Peterson case, the comments that landed Simone into trouble were associated with positions on the “right” of the political spectrum. They were also brought to the attention of the Law Society through complaints by members of the general public, and were used against her outside of a formal disciplinary proceeding. In other words, this was also not a classic case involving a disciplinary proceeding brought for off-duty conduct that undermined confidence in Simone’s ability to work as a paralegal. Rather, the concern was that the social media posts themselves reflected poorly upon the profession, not just because of their tone (though this was the formal argument made against Ms. Simone’s accreditation) but also, ostensibly, because of their content. This appears to be why the majority in that case repeatedly reaffirmed Ms. Simon’s obligation to comply with human rights laws, as though the mere expression of views critical of vaccine mandates, the Black Lives Matter organization, and “pride” events might infringe those obligations.

To say that professional regulators appear increasingly concerned with the reputational interest of their profession is, in this context, to say that professional regulators appear increasingly concerned with the appearance of complying with narrow cultural and political orthodoxies. These are “orthodoxies”, since they are views that are now largely taken for granted among much of the professional class, or at least among those individuals who are most likely to staff professional regulators and make decisions concerning member conduct.

Where a member of a restricted profession expresses personal viewpoints at odds with these admissible perspectives, the concern is not that the member lacks the requisite competence to exercise their role. Rather, the concern is that the mere expression of these views is “unprofessional”, in the sense that they are potentially damaging, or at least embarrassing, to the profession. That is, the expression of this views is “unprofessional”, owing to the fact that the member’s personal opinions are at odds with the values that the regulator thinks the profession should embrace.

That said, while the opinions that have run afoul of professional regulators have typically been associated with the “right” of the political spectrum – as in the Peterson and Simone cases – there have also been cases in which the authority of professional regulators has been invoked to punish those expressing views more typically associated with the “left”. In one particularly notable incident after the October 7 attacks on Israel by Hamas, students enrolled at the Faculty of Law at Toronto Metropolitan University (formerly Ryerson University) circulated a letter that purported to express solidarity with Palestinians, but also included language referencing a right of “resistance”. Many in the legal profession interpreted the letter as condoning the October 7 terrorist attacks. This prompted calls to deny the students articling positions (a requirement of lawyer licensing in Ontario) and potentially to deny them accreditation altogether.

This and similar cases that have arisen since October 7 may well suggest that the phenomenon that has until recently targeted mostly “right”-coded political opinions may now be weaponized by either side of the political spectrum.

What each of these cases undoubtedly serve to highlight, in any event, is a need to recover the importance of professional competence as the aim of regulators. Ensuring professional competence is the very reason for which professional regulation exists, and why determinations as to who can exercise these particular professions are not left solely to the market.

Canadians need professional regulators to return to their mandate: ensuring a minimum level of professional competence and protecting those relying on professional services. Regulators should not concern themselves with whether the opinions expressed by members are potentially embarrassing because they happen to fall outside the “values” that regulators believe professionals should embrace.

Stéphane Sérafin is an assistant professor in the French Common Law Program at the University of Ottawa.

Related Topics:

Todayville is a digital media and technology company. We profile unique stories and events in our community. Register and promote your community event for free.

Follow Author

More from this author
Energy / 1 hour ago

Is Canada the next nuclear superpower?

Business / 4 hours ago

The Health Research Funding Scandal Costing Canadians Billions is Parading in Plain View

Business / 8 hours ago

A Rush to the Exits: It’s Not Just Immigration, Canada Has an Emigration Crisis

Crime

Mexican cartels are a direct threat to Canada’s public safety, and the future of North American trade

Published on November 21, 2024

By

From the Macdonald Laurier Institute

By Gary J. Hale for Inside Policy

RCMP raided a fentanyl ‘superlab’ in Falkland, BC, with ties to a transnational criminal network that spans from Mexico to China.

On October 31, residents of Falkland, BC, were readying their children for a night of Halloween fun. Little did they know that their “quaint, quiet, and low-key little village” was about to make national headlines for all the wrong reasons.

On that day, RCMP announced that it had raided a fentanyl “superlab” of scary proportions near Falkland – one that police called the “largest and most sophisticated” drug operation in Canada. Officers seized nearly half-a-billion-dollars’ worth of illicit materials, including 54 kilograms of finished fentanyl, 390 kilograms of methamphetamine, 35 kilograms of cocaine, 15 kilograms of MDMA, and six kilograms of cannabis” as well as AR-15-style guns, silencers, small explosive devices, body armour, and vast amounts of ammunition.

They also found massive quantities of “precursor chemicals” used to make the drugs. This strongly suggests that the superlab was tied into a transnational criminal network that spans from Mexico to China – one that uses North America’s transportation supply chains to spread its poisonous cargo across Canada and the United States.

The Canada-US-Mexico relationship is comprised of many interests, but the economic benefits of trade between the nations is one of the driving forces that keep these neighbours profitably engaged. The CUSMA trade agreement is the successor to NAFTA and is the strongest example globally of a successful economic co-operation treaty. It benefits all three signatories. This level of interdependence under CUSMA requires all parties to recognize their respective vulnerabilities and attempt to mitigate any threats, risks, or dangers to trade and to the overall relationship. What happens to one affects all the others.

The supply chain, and the transport infrastructure that supports it, affects the balance books of all three. While the supply chain is robust and currently experiences only occasional delays, the different types of transport that make up the supply chain – such as trucks, trains, and sea-going vessels – are extremely vulnerable to disruption or stoppages because of the unchecked violence and crime attributed to the activities of Mexican Transnational Criminal Organizations (TCOs). These cartels operate throughout Mexico, from the Pacific ports to the northern plains at the US-Mexico border.

The sophistication of the Falkland superlab strongly suggests connectivity to multi-national production, transportation, and distribution networks that likely include China (supply of raw products) and Mexico (clandestine laboratory expertise).

For most Canadians, Mexican cartels call to mind the stereotypical villains of TV and movie police dramas. But their power and influence is very real – as is the threat they pose to all three CUSMA nations.

Mexico’s cartels: a deadly and growing threat

Mexican cartels started as drug trafficking organizations (DTOs) in the 1960s. By the late 1990s they had evolved to become transnational enterprises as they expanded their business beyond locally produced drugs (originally marijuana and heroin) to include primarily Colombian cocaine that they transported through Mexico en route to the US and Canada.

Marijuana and the opium poppy are cultivated in Mexico and, in the case of weed, taken to market in raw form. While the cartels required some chemicals sourced from outside Mexico to extract opium from the poppy and convert it into heroin, the large-scale, multi-ton production of synthetic drugs like Methamphetamine and today Fentanyl expanded the demand for sources of precursor chemicals (where the chemical is slightly altered at the molecular level to become the drug) and essential chemicals (chemicals used to extract, process, or clean the drugs.)

The need to acquire cocaine and chemicals internationalized the cartels. Mexican TCO’s now operate on every continent. That presence involves all the critical stages of the criminal business cycle: production, transportation, distribution, and re-capitalization. Some of the money from drug proceeds flow south from Canada and the US back to Mexico to be retained as profits, while other funds are used to keep the enterprise well-funded and operational.

In Mexico, the scope of their activities is economy-wide; they now operate many lines of criminal business. Some directly affect Mexico’s economic security, such as petroleum theft, intellectual property theft (mainly pirated DVDs and CDs), adulterating drinking alcohol, and exploiting public utilities. Others are in “traditional” criminal markets, such as prostitution, extortion, kidnapping, weapons smuggling, migrant smuggling and human trafficking. Organized auto theft has also become another revenue stream.

Criminal Actors

The Cartel de Sinaloa (CDS or Sinaloa Cartel) and the Cartel Jalisco Nueva Generacion (CJNG) are the two principal TCO’s vying for territorial control of Mexico’s air, land, and maritime ports, as well as illegal crossing points. These points on the cartel map are known as “plazas,” and are often between formal ports of entry into the US. By controlling territories crucial for the inbound and outbound movement of drugs, precursors, people, and illegal proceeds, the cartels secretly transport illicit goods and people through commercial supply chains, thus subjecting the transportation segment of legitimate North American trade to the most risk.

That is giving the cartels the power to impair – and even control – the movement of Mexico’s legitimate trade. While largely kept out of the public domain, incidents of forced payment of criminal taxation fees, called “cuotas,” and other similar threats to international business operations are already occurring. For instance, cuotas are being imposed on the transnational business of exporting used cars from the US to Mexico. They’re also being forced on Mexican avocado and lime exporters before the cartels will allow their products to cross the border to the US and international markets. This has crippled that particular trade. Unfortunately, the Mexican government has been slow to react, and the extortion persists throughout Mexico. It is worth repeating – these entirely legitimate goods reach the market only after cartel conditions are met and bribes paid.

The free trade and soft border policies of the US of recent years have allowed cartel operatives to enter that country and work the drug trade with limited consequence. In May, the U.S. Drug Enforcement Administration (DEA) published the National Drug Threat Assessment 2024, where it reported that the Jalisco and Sinaloa cartels operate in all 50 US states and are engaged in armed violence in American cities as they fight for market shares of the sales of Methamphetamine, Fentanyl, and other drugs sourced from Mexico.

The DEA’s findings should sound alarms in Canada. Canada and the US have similar trade and immigration policies, which allow the Mexican cartels to easily enter and control the wholesale component of the drug trade. The long-term effects of the drug trade are the billions of dollars gained that allow for the corruption of government officials. Canada should be on guard: Mexican drug cartels in Canada could begin to not only kill ordinary Canadians by knowingly selling them deadly drugs like Fentanyl – their operatives can also embed themselves in Canadian society, as they have in the US, leading to ordinary citizens on Canadian streets being victimized by the armed violence cartels regularly use to assert their position and power.

Organized crime and Mexican governance

Canada faces these threats directly, but the indirect ones that the cartels present to Mexican governance are no less consequential to Canada in the long term – and likely sooner. Illicit agreements between corrupt Mexican government officials and the cartels assure that the crime organizations retain control of territory and have freedom to operate.

That threat is becoming increasingly existential. Cartel fighters are well disciplined, well equipped and strong enough to challenge Mexico’s military, currently the government’s main tool to fight them. Should the TCOs come to dominate Mexican society or gain decisive influence over government policy, Mexico’s government risks being declared a narco-democracy and the US may come to see the cartels as a threat to national security. That in turn could lead to a US military intervention in Mexico – not an outcome desired by either side.

While that scenario may be considered extreme, it is not as far from reality as many may think. While in many respects the US-Mexico trading relationship remains unchanged, the overall political context has become testy – and could be a real flashpoint for the incoming Trump administration.

Political developments in Mexico have played a role. After his election in 2018, former Mexican President Andrés Manuel López Obrador (commonly referred to his initials, AMLO) demonstrated a disdain for all things North American. This included frequent complaints of US interference or violation of Mexican sovereignty – complaints that were more about keeping Mexican government domestic actions out of the public eye. To retain a shroud of secrecy over government corruption, Mexico under Amlo started in 2022 to limit the activities and numbers of US federal law enforcement agencies operating there, particularly the FBI, DEA, ATF and ICE. These agencies formerly enjoyed a close relationship with the Mexican Federal Police – a force AMLO disbanded and replaced with the National Guard. The AMLO administration reduced the number of US assets and agents in Mexico, particularly singling out the DEA for the most punitive restrictions.

During his administration, AMLO placed the army and navy in charge of all ports of entry and gave them responsibility for all domestic public safety and security by subordinating the Guardia Nacional (GN), or National Guard, to the army. The GN, the only federal law enforcement agency, has been taken over by military officials who are sometimes corrupt and in league with the cartels.

Mexican President Claudia Sheinbaum, who took office in 2024, has continued AMLO’s organizational moves. Sheinbaum comes from the same political party and has so far extended carte blanche to the military, whose administration is opaque and now operates with impunity, under the guise of “national security” and “sovereignty” concerns.

It is expected that Sheinbaum will continue to shield American eyes from Mexico law enforcement and judicial affairs. The fear in the US law enforcement and national security community is that Sheinbaum may even declare DEA non grata, much as then Venezuelan President Hugo Chavez in 2005 and Bolivian President Evo Morales in 2008 did in their countries. Both were anti-American leftists of the same mindset as AMLO and Sheinbaum, who feared detection of their connections to the illegal drug trade.

Sheinbaum has publicly demonstrated disinterest in the consistent application of the rule of law against the TCOs by stating that she will continue the “hugs not bullets” (“abrazos, no balazos”) non-confrontational, non-interventional posture towards organized crime. Agreements with corrupt government officials will allow the cartels to expand their business and to operate with impunity. Through intimidation, bribery, and murder, the cartels affect decision making at the municipal, state, and federal levels of Mexican government. That leverage, while performed outside the public eye, has the potential to negatively affect supply and demand among the three countries at the very least, and at worst, to signal that cartels in Mexico are directly or indirectly involved in the formulation of government security, immigration, drug, and trade policy.

AMLO enacted constitutional changes that will provide Sheinbaum with the powers of a dictator, giving her administration unchecked control of the executive, legislative, and judicial branches of government. As a result, the judiciary in Mexico is in crisis mode with 8 of 11 Supreme Court Justices resigning in October 2024 to protest the unconstitutional disregard for due process that started with AMLO and continues with Sheinbaum thanks to a “voting for judges” law that she and AMLO have rammed into operation without debate. This development portends even more corruption.

Without the existence of an independent judicial system, these institutional changes could give pause to US and Canadian negotiators when it comes time to renew CUSMA in 2026.

Beyond 2025: Mexican organized crime as a threat to the US and Canada, and Greater North American implications

Most worrying, the cartels will be in a yet stronger position to affect and even dictate the pace and volume of legitimate trade between the US and Mexico under Sheinbaum. This makes Mexico the weakest link among the three CUSMA members.

The US and Canada should therefore be concerned about the strength and power of the cartels because the current trajectory could provide them a greater role in Mexico’s performance as a trade partner. Should this trend continue, the US would likely begin to see Mexico through the lens of a threat to critical components of its national security: 1) the public safety of US citizens being killed in epidemic proportions by the drugs produced by citizens of Mexico; 2) the negative impact or increased cost of commerce that supplies goods to the American market; and 3) the CUSMA relationship that sustains the economic strength of all three participating countries.

This worrisome evolution requires proactivity by Canada and the US to insist that Sheinbaum reverse the gains that the cartels have made to influence policy and erode the government’s monopoly on territorial control and the use of violence, and reverse Mexico’s limits on drug enforcement co-operation with what should be its partners to the north. Pressure should also be applied to demand a return to a drug policy model that includes international law enforcement co-operation and a continuation towards the transformation of the Mexican judicial system from a mixed inquisitorial or accusatorial system to an adversarial system that employs the use of juries, witness testimony, oral hearings and trials, and cross-examination of witnesses, as opposed to a system where cartel-influenced elections could dictate judicial outcomes.

The implications of the further development of a Mexico narco-democracy for US-Mexico-Canada relations would be devastating. Co-operation on public safety and security would cease completely, allowing the cartels to take full control of commercial supply lines, significantly reducing trade between the three nations – likely causing the CUSMA trade deal to fracture until governance returned to duly elected civilian officials.

Continental security and Canada’s contribution

The continued success of CUSMA lies with Mexico more than any other country. Should Mexico continue on its path to autocracy, it could upset the trade deal, crucial to the prosperity of all three countries. Canada is not immune from what on the surface may appear to be mostly bilateral, US-Mexico issues, because, regardless of the commodity – whether it’s consumables or manufactured items – the cartels are positioned and empowered to affect imports, exports, trade, and migration throughout North America.

For the foreseeable future, Mexico is not going to voluntarily change its security posture. This enables the cartels to remain persistent threats, especially to trade. Canada and the US need to continue to jointly insist that Mexico take a stronger stance against organized crime and that it take steps to strengthen the judiciary and the rule of law in that country.

Gary J. Hale served 31 years in the Drug Enforcement Administration (DEA), retiring as an executive-level intelligence analyst. In 2010, he was appointed as Drug Policy fellow and Mexico Studies Scholar at the James A. Baker III Institute for Public Policy at Rice University in Houston, Texas.

Continue Reading

Business

Canada’s struggle against transnational crime & money laundering

Published on November 10, 2024

By

From the Macdonald-Laurier Institute

By Alex Dalziel and Jamie Ferrill

In this episode of the Macdonald-Laurier Institute’s Inside Policy Talks podcast, Senior Fellow and National Security Project Lead Alex Dalziel explores the underreported issue of trade-based money laundering (TBML) with Dr. Jamie Ferrill, the head of financial crime studies at Charles Sturt University in Canberra, Australia and a former Canada Border Services Agency officer.

The discussion focuses on how organized crime groups use global trade transactions to disguise illicit proceeds and the threat this presents to the Canada’s trade relationship with the US and beyond.

Definition of TBML: Trade-based money laundering disguises criminal proceeds by moving value through trade transactions instead of transferring physical cash. Criminals (usually) exploit international trade by  manipulating trade documents, engaging in phantom shipping, and altering invoices to disguise illicit funds as legitimate commerce, bypassing conventional financial scrutiny. As Dr. Ferrill explains, “we have dirty money that’s been generated through things like drug trafficking, human trafficking, arms trafficking, sex trafficking, and that money needs to be cleaned in one way or another. Trade is one of the ways that that’s done.”

A Pervasive Problem: TBML is challenging to detect due to the vast scale and complexity of global trade, making it an attractive channel for organized crime groups. Although global estimates are imprecise, the Financial Action Task Force and The United Nations Office on Drugs and Crime (UNODC) suggests 2-5% of GDP could be tied to money laundering, representing trillions of dollars annually. In Canada, this could mean over $70 billion in potentially laundered funds each year. Despite the scope of TBML, Canada has seen no successful prosecutions for criminal money laundering through trade, highlighting significant gaps in identifying, investigating and prosecuting these complex cases.

Canada’s Vulnerabilities: Along with the sheer volume and complexity of global trade, Canada’s vulnerabilities stem from gaps in anti-money laundering regulation, particularly in high-risk sectors like real estate, luxury goods, and legal services, where criminals exploit weak oversight. Global trade exemplifies the vulnerabilities in oversight, where gaps and limited controls create substantial opportunities for money laundering. A lack of comprehensive export controls also limits Canada’s ability to monitor goods leaving the country effectively. Dr. Ferrill notes that “If we’re seen as this weak link in the process, that’s going to have significant implications on trade partnerships,” underscoring the potential political risks to bilateral trade if Canada fails to address these issues.

International and Private Sector Cooperation: Combating TBML effectively requires strong international cooperation, particularly between Canada and key trade partners like the U.S. The private sector—including freight forwarders, customs brokers, and financial institutions—plays a crucial role in spotting suspicious activities along the supply chain. As Dr. Ferrill emphasizes, “Canada and the U.S. can definitely work together more efficiently and effectively to share and then come up with some better strategies,” pointing to the need for increased collaboration to strengthen oversight and disrupt these transnational crime networks.

Looking to further understand the threat of transnational organized crime to Canada’s borders?

Check out Inside Policy Talks recent podcasts with Christian Leuprecht, Todd Hataley  and Alan Bersin.

To learn more about Dr. Ferrill’s research on TBML, check out her chapter in Dirty Money: Financial Crime in Canada.

Continue Reading

Trending

X