The Justice Centre was retained in March of 2020 by a Nova Scotia emergency room physician to defend him from professional discipline, after a Complaint was filed by activists who took exception to an opinion column he wrote in a local paper. The Decision of the Investigation Committee of the College of Physicians and Surgeons of Nova Scotia was released on November 4, 2020 and a summary of the Decision was published on November 12, 2020—until that time all details about the Complaint were subject to a publication ban.

Last year, on November 16, 2019, Dr. Chris Milburn wrote an opinion piece for The Chronicle Herald. In the wake of two special constables being convicted of criminal negligence for the death of a drunk man being held in custody, Dr. Milburn expressed the opinion that, while police and jail guards should be held to a high standard, they should not be held to an impossible one. He noted the negative effects on already over-burdened emergency departments of having to provide “medical clearance” of some of the most “wild-behaving and impaired” people being brought in by police and guards on a routine basis.

Dr. Milburn’s piece was read widely, and many people, both within and outside the medical profession, expressed support for his views both publicly and privately. A number of others spoke out against his views. Various letters to the editor were written which showed a split in public thinking on the matter – some were critical of what they perceived to be his dismissive attitude toward those with addiction issues; still others were grateful for his comments as being a breath of fresh air.

To respond to his critics, Dr. Milburn wrote a rebuttal piece on Nov. 27, 2019, in which he confirmed that he has no hesitation to provide appropriate care to any patient, ‘criminal’ or not, and noted the ‘soft bigotry of low expectations’ exhibited by one of his detractors, a criminal defence lawyer, in her article critiquing his opinions. As Dr. Milburn explained, “I believe that caring for someone means having high expectations and pushing them to do better. I have personally provided excellent care to some of the most notorious criminals in our country. I believe these people are human beings, flawed like the rest of us, who deserve medical care just like anyone else. And when I don’t have to give up my own physical safety or risk that of my staff to provide that care, I am more than willing to do so.”

A compilation of letters to the editor on Nov. 30, under the headline “Milburn op-eds stoke serious debate about personal responsibility”, showed how the public appreciated the opportunity to discuss the issues, despite opinions being divided.

On January 17, 2020, a group of 14 activists, academics and doctors, led by a Halifax lawyer, filed a formal Complaint against Dr. Milburn with the College of Physicians and Surgeons of Nova Scotia, seeking to punish and threaten the livelihood of Dr. Milburn merely for expressing opinions with which they disagreed. They were not Dr. Milburn’s patients, nor had he had any prior interactions with these complainants. Several did not even reside in Cape Breton, where he practices medicine. The College has not permitted the Complaint to be publicized in its entirety.

The Justice Centre provided submissions to the College on Dr. Milburn’s behalf, including his own personal statement and legal arguments defending the right of physicians to be able to express their opinions on matters of policy in the public square. The Justice Centre noted that attempting to have a doctor professionally disciplined for his opinions and commentary on matters of public interest amounts to bullying and should not be encouraged by the College. The Justice Centre submitted that an appropriate response would have been to write a rebuttal piece, which was done by several people, including one of the complainants. This is how ideas are presented, debated, dismissed, or affirmed in a free and functioning democracy – not attacking the speaker and attempting to destroy their livelihood or cause them to be otherwise disciplined by their professional regulator.

The Justice Centre further submitted that everyone has the right to freedom of thought, belief, opinion and expression, as guaranteed by the Canadian Charter of Rights and Freedoms – including doctors.

The College appointed an Investigation Committee to review the matter, and an interview was conducted with Dr. Milburn on September 1, 2020, in the presence of his Justice Centre counsel. In its Decision, the Committee dismissed the complaint and stated that it “does not find that Dr. Milburn may have breached the standards of professional ethics or practice and therefore a caution is not appropriate.”

While this was an excellent result for Dr. Milburn, the Decision was unfortunately not a full-throated defence of free speech: “A dismissal of this complaint should not be read as the Committee’s endorsement of Dr. Milburn’s public utterances….Individuals who identify themselves as physicians when speaking out on matters in a public way, must recognize the impact of their words and take into account the various sensitivities at play in the matters under discussion,” the Committee wrote.

Additionally, shortly after the Complaint was filed a further query was made by the College’s deputy registrar, in which Dr. Milburn was asked to explain why he posted a comment on Facebook which gave kudos to French president Macron for supporting a young LGBT woman who was being accused of blasphemy for her criticism of radical Islam. A response was provided by Dr. Milburn, with the assistance of the Justice Centre, and the matter was dropped on March 24, 2020. There had been no formal complaint, but it appeared that the original matter prompted the College to review Dr. Milburn’s social media postings.

Although the Decision and the supplementary inquiry into the Facebook post were both resolved in Dr. Milburn’s favour, the Justice Centre is concerned that professional regulators are increasingly being asked to investigate professionals’ public comments by activists seeking to ‘cancel’ those who hold views they consider ‘wrong’.