Ontario lawyer Michael Alexander is utilizing a unique angle to defend freedom of expression as it relates to medical professionals' ability to share contrarian opinions online despite their regulator's demands.

Alexander is representing former experienced emergency room physician Mark Trozzi, who recently had his licence to practice medicine in the province revoked by his regulator, the College of Physicians and Surgeons of Ontario (CPSO).

The CPSO has deemed Trozzi guilty of unprofessional statements online after he openly criticized vaccinations, treatments and public health measures for COVID-19.

On October 6, 2023, a tribunal found him guilty of professional misconduct, deemed him incompetent, and revoked his licence last month. Trozzi was ordered to appear before a panel to be formally reprimanded and pay costs of $94,960.

Alexander challenged the college’s investigation orders of Trozzi, arguing that it failed to meet the criminal standard of reasonable and probable grounds, noting the orders lacked both a definition of offence and evidence. Despite losing a motion hearing on that, Alexander says Trozzi plans to appeal.

The lawyer says much of the investigation boiled down to the standard of practice, something he says was not defined before or during the hearing(s).

“What the college does, is they take you down the road to a hearing and then at the last moment they decide what they’re going to charge you with and then they bring on evidence, and you’ve had no notice of the charges, which in and of itself is a legal problem,” Alexander explains.

Expert witnesses on behalf of the CPSO included assistant professor Michael Garton from the University of Toronto’s Institute of Biomedical Engineering, whom Alexander said never refuted Trozzi’s expert report.

“Mark’s position on the science throughout this hearing remained unrefuted and unaddressed,” he said.

Another witness was Noni MacDonald, professor of pediatrics at the University of Dalhousie, who also works with the World Health Organization's strategic advisory group on immunization.

According to her paper titled “Fake news and science denier attacks on vaccines,” Dr. MacDonald receives extensive grants for efforts to support and promote vaccines.

“She spoke about the harms resulting from disinformation but Mark was never charged with spreading disinformation, and none of the harms that she talked about were connected to anything that Mark said or did,” argues Alexander, who says the egregious errors made by the CPSO will be appealed to the court system on the standard of correctness.

“The court will require the college to get the right legal answers on all of these issues around evidence, reasonable and probable grounds, standard of practice and so on.”

The appeal hinges on free expression and, especially, the protected right of minority or dissenting opinions to be expressed, which Alexander says is immune from the state’s imposition of Section 1 of the Charter of Rights and Freedoms, which allows for the state to place “reasonable limits” on all of the other sections, if justified.

“The right of the government and the people to spread misinformation, as extreme as it may seem, has a rational foundation – in a democracy, where each person is the best judge of his or her own interest, each person is necessarily the ultimate judge of what is true and what is false. Thus, the Court’s willingness to endorse the right to spread misinformation must be understood as a stand against state censorship of any kind,” claims his factum.

In essence, Alexander believes people, armed with information, can decide for themselves what is true and what is false.

His factum further notes that “provocative remarks are sometimes needed to get the attention of others,” citing a case from the Registered Nurses Association of Saskatchewan which said, “the most important reason freedom of expression cannot be unduly constrained to avoid offending others” is that “criticism will tend to upset the target of that criticism” and “criticism, even blunt criticism, is essential to healthy debate.”

Alexander refutes expert testimony used in Trozzi’s case to prove that his statements about the lack of safety or efficacy of the COVID-19 injections were correct by acknowledging that the college’s expert did not read Pfizer’s six month clinical trial data.

But proving this is going to be a long and drawn-out process, which Alexander says the CPSO depends on with their costs being upwards of $10,000 per day.

When contacting the CPSO with a media request, the regulator referred to strict guidance from June 2023 on COVID-19 vaccine exemptions, allowing only severe allergic reactions or heart inflammation post-first dose as allowable stipulations to increase indiscriminate vaccine uptake initiatives.

The CSPO continues to discourage exemptions without these stringent conditions and recommend that doctors not “enable avoidance behaviour” or “empower vaccine anxieties,” instead urging prescription use or psychotherapy referrals instead.

And while the CPSO’s annual report states the pandemic caused "chaos and misery" within the profession, it does not advocate for physicians in this regard, but rather provides “clear information to physicians about appropriate practices during the pandemic” on their website.

When asked how many patients are without a family doctor or emergency care physician due to CPSO-induced COVID-19-related investigation, the regulator notes it does not collect that type of data.

The CPSO skirted the question around allegations  of criminal negligence and otherwise against it by saying, “Physicians hold a unique position of trust with the public and have a professional responsibility to not make comments or provide advice that encourages the public to act contrary to public health orders and recommendations. Physicians who put the public at risk may face an investigation by CPSO and disciplinary action, when warranted.”

In wondering what role the CPSOs medical misinformation policy played in physicians' unequivocal adherence to COVID-19 public health measures, a response from the college said, “Some of the guidance CPSO shared during the pandemic was misrepresented by some on social media and in other forums. As stated in our Social Media policy, physicians are required to disseminate information that is verifiable and supported by available evidence and science if making statistical, scientific, or clinical claims. It is important for physicians to also consider the potential associated risks of sharing such information.”

Lastly, when asked about any available recourse for physicians when the CPSO gets something wrong, the CPSO responded it would “welcome evidence-informed feedback from our registrants about our policies and advisory documents.”

But hasn’t all of this functioned oppositely — constraining, or potentially even eradicating, the willingness to provide feedback? Would anyone dare to offer criticism or dissenting viewpoints to the CPSO, knowing that it could (and likely would) lead to punitive measures taken against these individuals and the revocation of their licence to practice medicine?