For the first time in Canada’s history, the trains on both of Canada’s national railways have stopped moving. Hopefully, by the time you read this, the labour dispute will have ended and the trains will be rolling again. If not, the impacts of the lockout will ripple across the country, hitting more Canadians and more of the economy increasingly harder.

For weeks, it has been increasingly clear that intervention by the federal government would be the only way to avoid those consequences. When referring to a possible stoppage, the Finance minister said “We cannot tolerate a self-inflicted wound.” Apparently, the government can because its lack of intervention let this wound happen. The question now is when it will heal and how much harm it will cause before then.

If the government finally intervenes, it will likely not be because of the impact on farmers, food processors, miners, or foresters. It will be because of the effect on commuters and consumers who will have been reminded how critical rail and transportation systems are to Canada.

Far too often, transportation is taken for granted. Far too often, stories of poor performance, unreliability, and fallout from service disruptions go unnoticed or are incomprehensible to those outside the impacted sectors.

However, poor transportation systems impact everyone, dragging down economic growth and productivity. As the Wall Street Journal, TD Bank, and others have noted, moving goods to foreign markets has been one of the few economic lights for Canada, propping up a weak domestic economy. Governments like to take credit for increasing exports but seem unwilling to do what is necessary to protect them.

As is too often the case, the calls of resource sectors for intervention were not enough to avoid the lockout. Hopefully this will change as the pain moves from rural Canada and resource sectors to urban Canadian commuters and consumers and the distant problem of rail and transportation challenges becomes very real, very quickly.

This shared pain may be an opportunity to address the immediate dispute and advance long-needed solutions to Canada’s transportation challenges. These solutions require investment, governance changes, and a meaningful strategy, but they will only succeed if the crisis opens the door to real change.

Agriculture and other exporters have offered proactive solutions to resolve these longstanding challenges, but the government’s own Supply Chain Taskforce struggled to implement this action.

The inability of the government and federal parties to provide serious solutions to Canada’s poor transportation performance leads to hostility and skepticism from those who rely on it to ship and receive goods across the country and around the world.

While there has been some improvement in global rankings, the repeated failure to find a more durable and proactive solution to Canada’s reliability challenges, of which the current strike is but one example, may do as much harm as the lockout itself.

Letting the current crisis happen leads customers and competitors to ask, “If a crisis such as this does not drive action, is there any hope for Canada?”

It appears that left to their own devices, the government and Opposition will continue to focus on short-term ideological and political solutions and move on once commuters can hop back on the train to work.

However, there are actions that can help resolve the current crisis and lay the foundation for longer-term improvements that stop the Ground Hog Day loop that Canada’s transportation system has become stuck in.

First, intervention is needed to end the current dispute as quickly as possible. Parliament has legislated an end to disputes in the past, even voting over the weekend. The government has other tools, but Parliamentarians should prepare to return to Ottawa.

If one of the most labour-friendly presidents in American history, Joe Biden, can avoid a strike in a country that relies on rail substantially less than Canada does, Canada’s government has no political or partisan excuse not to act.

A better solution is to revamp the legislation to ensure the Canada Industrial Relations Board can impose binding arbitration to avoid the brinksmanship and economic consequences Canada now faces. It should take the pressure off politicians and prevent politics and ideology from getting in the way of the national interest.

While labour groups may oppose such a move, the second step could be to give workers a seat at the corporate table. This may secure cross-party support, with the NDP having already secured an amendment to give labour a seat on port authorities. Likewise, the move has gained momentum with right-wing thought leaders in the U.S., who call for workers to have a seat at the management table.

These actions may be non-starters in normal times, but the present moment of shared pain is anything but normal.

Reducing the risk of further labour disruptions will not fix Canada’s poor transportation performance. That is why action is still needed on the sector-specific and Supply Chain Taskforce solutions. Furthermore, progress is needed on a Canada Trade Infrastructure Plan that has been endorsed by the premiers, and more attention needs to be paid to improving Canada’s economic corridors.

Shippers from agriculture, forestry, and mining have advocated for proactive solutions for years and have effectively begged for intervention to avoid the current disruption. It seems like it all fell on deaf ears. Now that the pain is spreading, hopefully, the government will act. The shared pain the country will now feel is an unfortunate reminder of how critical transportation is and how desperately action is needed.

Famed Canadian psychologist and author Jordan Peterson is back in the news, this time because the Supreme Court of Canada denied him leave to appeal in the legal battle with his regulator, the College of Psychologists of Ontario, pertaining to complaints received regarding his online statements. His case is an important one that has brought to the forefront of public discourse the expanding claims of professional regulators over the lives of those who need government permission to do their jobs.

Like Peterson, those in regulated professions may be subject to discipline for public statements. The concern among many in regulated professions, including doctors, lawyers, accountants, and nurses, is that these statements may now result in discipline even if they are about issues wholly unrelated to their profession—topics like politics, religion, society, and culture.

This is censorship in its most classic form, carried out by individuals who claim independence from the government but who are in fact empowered by the government through legislation and regulation. Canadians in regulated professions need the government’s permission to do their job, and that permission is granted by the self-regulating professional bodies that have their own systems of rules and discipline.

But professional regulators do not have unlimited and free-wheeling power to regulate all their members’ speech. While someone may be an accountant from the moment they wake up to the moment they go to bed, that does not make everything an accountant does a matter of professional discipline. A professional regulator aiming to restrict its members’ speech must demonstrate that the speech has a nexus to the profession and is directly related to its primary mandate of regulating it in the public interest.

And this does not mean the public interest writ large. Rather, it is limited to the public interest as it relates to the professional practice. Additionally, that public interest must be balanced against the Charter right to freedom of expression.

The problem is regulators are often overly generous about the scope of their statutory objectives, which leads to the over-regulation of off-duty speech. Judicial review is no guarantee that an overly expansive approach to regulating speech by professionals will be corrected, especially since judicial review can be deferential. The result is cases like Peterson’s, where a regulator claims social media posts about social, political, and cultural topics are under their jurisdiction because they are impolite, provocative, or inflammatory. But merely being provocative does not bring off-duty speech within the jurisdiction of the regulator.

Peterson is not alone. His case is just the most famous. A recent paper published by the Macdonald-Laurier Institute considers similar cases. Consider the cases of two Ontario physicians who were disciplined for rude and profanity-laden texts and emails they sent to the head of the Ontario Medical Association following an unpopular government deal on physician fees. Shockingly, these private messages about the economic interests of doctors to their bargaining head resulted in an investigation and discipline.

The disciplinary committees in both cases pointed to college policies on courtesy and public trust. But private emails to the head of the OMA about fees do not undermine public trust. No one thinks a cardiologist is less able to operate because he objects—even forcefully—to the bargaining tactics of the OMA. This should be considered outside the scope of the regulator and given no deference, and yet the doctors did not challenge the decision, which for one doctor included a one-month suspension of his license.

Another case involves a complaint about a physician named Dr. Polidoulis for comments she made during the COVID-19 pandemic about changes to the centuries-old ritual of Holy Communion at her Greek Orthodox Church, which uses a single spoon. In 2020 the church adopted a policy of using multiple spoons, and Polidoulis criticized this change on theological grounds in a verbal exchange with her priest and in an open letter to the Archbishop. A fellow congregant complained to the College of Physicians alleging Polidoulis had failed in her duty as a doctor by not warning people about the risks of disease in a communal spoon. Polidoulis argued she is entitled to express her religious beliefs and that she was not engaged in the practice of medicine when she expressed her personal opinions. The college nevertheless investigated and ordered a caution.

On appeal to the Health Professions Appeal and Review Board, the order was upheld and the board stated, without much further expansion, that while Polidoulis has a right to freedom of expression and religion, these rights are subject to reasonable limits under Section 1 of the Charter.

This case was never judicially reviewed. It should have been. The reasoning is deficient. Physicians must be entitled to practice their faith and make public statements about their religious beliefs without fearing that their regulator may discipline them. The board barely mentioned Polidoulis’s right to religious freedom other than to cite that it may be limited under Section 1 of the Charter. This is not the required balancing of Charter rights against the statutory role of the regulator, but rather a bare acknowledgment that such a balancing should take place.

These cases highlight a number of problems, including regulators’ expanding claims of jurisdiction over what off-duty conduct they can regulate and an overly generous definition of what constitutes the public interest, as well as the deference given to decision-makers who show little concern for Charter rights. There is also the broader cultural problem of the devaluation of the right to freedom of expression, a principle that is vital in truth-seeking fields like science, medicine, and law. The discovery of new ideas will be chilled if professional regulators are empowered to police their members’ speech for ideological conformity and political correctness.

But there are a few practical steps that can be taken to address these problems. First, regulators should receive comprehensive training in constitutional protections, particularly in the context of freedom of expression. While regulators may possess technical expertise in their respective fields, many lack the necessary knowledge about constitutional rights. Training could equip them with the understanding they need to appropriately balance regulatory goals with fundamental rights.

Second, legislatures could codify the standard of review. When courts review regulators’ decisions, they often do so by using a deferential standard of review that merely requires the decision of the regulator to be “reasonable,” not “correct.” When the standard of review is correctness, courts have overturned discipline for failing to take proper account of the constitutional rights of individuals in regulated professions.

Third, legislatures could amend existing statutes to require that regulators find a significant connection to the profession when addressing issues related to off-duty speech. Although case law requires this nexus, there have been inconsistencies in its application.

Finally, there is a need for public advocacy to foster a cultural shift that elevates the perceived value of freedom of expression. The current trend poses a threat to open debate and the exploration of diverse viewpoints, both within and beyond regulated professions. It is essential that Canadians advocate for societal change that recognizes and upholds freedom of expression as a vital component of truth-seeking and democratic discourse. This cultural shift will then be internalized within the values of professional regulators and the individuals who make up these regulatory bodies.