2005 BCCA 327err1 Kempling v. British Columbia College of Teachers

Before:	The Honourable Mr. Justice Donald
	The Honourable Madam Justice Huddart
	The Honourable Mr. Justice Lowry

W. S. Clark	Counsel for the Appellant
B. A. Laughton, Q.C.	Counsel for the Respondent
E. M. Myers, Q.C. and R.D.W. Dalziel	Counsel for the B.C. Civil Liberties Association
J. Rogers	Counsel for B.C. Teachers' Federation
K. L. Boonstra and D. M. Brown	Counsel for Canadian Religious Freedom Alliance
J. C. Anderson	Counsel for BC Public School Employers' Association
Place and Date of Hearing:	Vancouver, British Columbia
April 21 and 22, 2005
Place and Date of Judgment:	Vancouver, British Columbia
June 13, 2005

Written Reasons by:

The Honourable Mr. Justice Lowry

Concurred in by:

The Honourable Mr. Justice Donald

The Honourable Madam Justice Huddart

Reasons for Judgment of the Honourable Mr. Justice Lowry:

[1] This appeal raises a question of the administrative and constitutional validity of disciplinary proceedings taken against a teacher in the provincial school system for statements made publicly about homosexuality.

[2] Christopher Kempling taught at one of the four secondary schools in the Quesnel School District. He is both a teacher and a registered clinical counsellor of long standing. He has, since 1980, been a member of the British Columbia College of Teachers (“BCCT”) which is the statutory body empowered to regulate the teaching profession in this province.

[3] In the spring of 2001, Mr. Kempling was cited for professional misconduct arising out of an article and letters to the editor he wrote expressing his views on homosexuality which were published in a local newspaper between 1997 and 2000, in which he associated homosexuals with immorality, abnormality, perversion and promiscuity, prompting heated responses that branded his statements as discriminatory. A year later, the citation was heard by a Hearing Panel of the Disciplinary Committee of the BCCT. Mr. Kempling chose not to appear. The Panel found his writings to be discriminatory, demonstrating that he was not prepared to accommodate the core values of the education system. One such value is non-discrimination, which the Panel said includes the recognition of homosexuals’ rights to equality, dignity, and respect. The Panel quoted from Abbotsford School District No. 34 Board of School Trustees v. Shewan (1987), 21 B.C.L.R. (2d) 93 at 97 (B.C.C.A.), as quoted in Ross v. New Brunswick School District No. 15, [1996] 1 S.C.R. 825 at para. 44, as indicative of the consequences to be inferred:

The reason why off-the-job conduct may amount to misconduct is that a teacher holds a position of trust, confidence and responsibility. If he or she acts in an improper way, on or off the job, there may be a loss of public confidence in the teacher and in the public school system, a loss of respect by students for the teacher involved, and other teachers generally, and there may be controversy within the school and within the community which disrupts the proper carrying on of the education system.

[4] Mr. Kempling was found guilty of conduct unbecoming a member of the BCCT.

[5] A year later, in the spring of 2003, the Panel convened a hearing to determine the disciplinary measure that ought to be imposed. Mr. Kempling appeared with counsel. The Panel concluded that Mr. Kempling’s teaching certificate should be suspended for one month, that notice of such be given to various licensing authorities, and that his name and a summary of the case be published to the BCCT membership and the public. Subsequently, by majority, the Council of the BCCT (the “Council”) adopted the Panel’s recommendation.

[6] Mr. Kempling appealed from the two decisions of the Panel and the decision of the Council to the Supreme Court of British Columbia. He contended that there was procedural unfairness on the part of the Panel and that there was error both in the conclusion that he was guilty of conduct unbecoming a member of the BCCT and in the penalty imposed. He also contended that his rights under the Canadian Charter of Rights and Freedoms had been infringed, specifically his rights under ss. 2(a), 2(b), 7 and 15. The appeal was heard by Mr. Justice Holmes and dismissed early last year: [2004] 7 W.W.R. 741, 27 B.C.L.R. (4th) 139, 2004 BCSC 133.

[7] This appeal is taken from his judgment. Mr. Kempling maintains that Holmes J. erred in some of the conclusions he reached. Various interested parties have been granted leave to intervene.

[8] With respect to the Panel’s finding that Mr. Kempling was guilty of conduct unbecoming a member of the BCCT, and the penalty imposed, Mr. Kempling contends that Holmes J. applied the wrong standard of review and erred in any event in upholding the administrative decisions. Mr. Kempling maintains that the standard of review is one of correctness, not reasonableness as Holmes J. determined. He then says that Holmes J. failed to recognize that, through overly broad reasoning, the Panel erred in finding him guilty on the basis that his writings were discriminatory amounting to unprofessional conduct and then erred in inferring that some measure of harm would be a consequence of what he had written. Mr. Kempling claims that, given the broad range of sanctions open to the BCCT and what is an unblemished career record of community service as a teacher and counsellor, it was simply wrong to order any suspension of his teaching certificate.

[9] With respect to the infringement of his Charter rights, Mr. Kempling contends that Holmes J. was in error in concluding as he did that his rights under ss. 2(a), 2(b) and 15 were not infringed and that if they were, the infringement was saved by s. 1.

[10] For the reasons that follow, I would dismiss the appeal. I consider that Holmes J. was substantially right in reviewing the administrative decisions on a standard of reasonableness save that I consider the Panel’s conclusion that Mr. Kempling’s writings were discriminatory was to be reviewed on a standard of correctness. That said, however, Holmes J. made no error, in my view, that undermines his upholding the administrative decisions. Further, I do not consider it was open to Mr. Kempling to raise s. 2(a) of the Charter and, while on this appeal the BCCT concedes that, contrary to what Holmes J. concluded, Mr. Kempling’s s. 2(b) rights were infringed by the imposition of the suspension of his teaching certificate, I do not consider the infringement to have been beyond what can be justified in a free and democratic society. I do not consider that Mr. Kempling’s s. 15 rights were infringed.

[11] I begin by addressing the administrative grounds of appeal Mr. Kempling raises with respect to the decisions of the Panel and the Council: the standard of review, the conclusion that he was guilty of conduct unbecoming a member of the BCCT, and the penalty imposed. I then proceed to address the Charter arguments that he raises.

The Standard of Review

[12] An outline of the reasoning employed by Holmes J. with respect to the standard of review is necessary to an understanding of Mr. Kempling’s contention that the wrong standard was applied to the administrative decisions.

[13] Holmes J. recognized that there were three separate administrative decisions at issue in this case: 1) the Hearing Panel’s finding of conduct unbecoming; 2) the Hearing Panel’s recommendations as to penalty; and 3) the Council’s decision to adopt the Panel’s recommendations. In Holmes J.’s view, it was inappropriate to treat all three decisions together due to their separation in time, and the different subject matter at issue. Accordingly, he decided to review the Panel’s finding of conduct unbecoming and the Council’s ultimate decision as to the appropriate penalty separately, and on the basis of individual standards of review.

a) Conduct Unbecoming

[14] To determine the standard of review, Holmes J. applied the pragmatic and functional approach set out in Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982, and Dr. Q v. College of Physicians and Surgeons of British Columbia, [2003] 1 S.C.R. 226. There are four factors to be considered when applying this approach:

1. the presence or absence of a privative clause, or a statutory right of appeal;

2. the relative expertise of the administrative decision-maker vis-à-vis the court, with regard to the specific issue in question;

3. the purpose of the statute as a whole and of the provision in particular; and

4. the nature of the problem, i.e. whether it is a question of fact, law, or mixed fact and law.

[15] In applying the approach to the Hearing Panel’s finding of conduct unbecoming, Holmes J. found that as there was no privative clause in the Teaching Profession Act, R.S.B.C. 1996, c. 449 and, as there was a broad statutory right of appeal pursuant to s. 40 of the Act, the first factor militated against showing deference for the decision of the Panel.

[16] As to the second factor, Holmes J. concluded that the Panel’s decision involved the setting and enforcement of standards of professional responsibility. The Panel was specialized in this type of decision, and had a greater degree of expertise relative to the courts. The second factor, therefore, suggested greater deference should be shown to the Panel.

[17] In relation to the third factor, Holmes J. noted that the purpose of the Act as a whole, as set out in s. 4, is to set and enforce its own standards of training, professional conduct, and competence for the teaching profession in British Columbia. This requires a balancing of competing interests and involves consideration of multiple policy objectives. Viewing the Act as a whole indicated a high degree of deference. However, the specific sections at issue, namely ss. 28, 30 and 34, are concerned with adjudicating claims of professional misconduct and conduct unbecoming. This is a quasi-judicial function and thus suggests a lesser degree of deference. On the whole, Holmes J. concluded that the third factor was neutral and did not militate for or against a particular standard of review.

[18] There were two questions the Panel had to consider in their finding of conduct unbecoming: first, whether Mr. Kempling’s writings were discriminatory; and, second, whether the capacity and context in which he made them amounted to conduct unbecoming a member of the BCCT. Holmes J. concluded that the first question was a question of fact, and the second was a question of mixed fact and law. He saw the determination of both questions, however, to be fact driven and dependent upon recognition of the public interest, and on the specialized expertise and understanding of the role of a teacher. As a result, the fourth factor suggested considerable deference should be shown to the Panel’s decision.

[19] In light of the four factors set out in the pragmatic and functional approach, Holmes J. concluded that the appropriate standard of review was that of reasonableness simpliciter. The question he was to determine, therefore, was whether the Panel’s findings and conclusions had some basis in the evidence and whether the reasons on the whole were tenable support for the decision.

[20] Mr. Kempling contends that Holmes J. erred in his application of the second, third and fourth factors of the pragmatic and functional approach. As to the second factor, he says that the Panel’s finding of conduct unbecoming clearly impacts his constitutional rights, in that it curtails his right to freedom of expression, conscience and religion. The Panel’s finding also addresses human rights issues in that it was concerned with allegedly discriminatory expression. As set out in TWU v. British Columbia College of Teachers, [2001] 1 S.C.R. 772, the BCCT is not expert in matters concerning freedom of religion, or in balancing competing constitutional rights. Further, the BCCT is not well positioned to adjudicate matters which engage the Charter, or which involve human rights issues. Accordingly, and contrary to Holmes J.’s conclusion, Mr. Kempling says that the second factor militates against deference to the Panel.

[21] As regards the third factor, Mr. Kempling contends that the dispute-settlement mechanism provided for in the Act is not of a specialized nature, and the members of the Panel do not maintain any special qualifications which would qualify them as experts. Further, the Panel is not engaged in the balancing of different considerations, but rather is concerned with ensuring the quality of its members as teachers. Finally, the BCCT plays only a minor role in the development of education policy. Mr. Kempling maintains that on the strength of the Supreme Court’s decision in Pushpanathan these factors suggest that no deference should be afforded the Panel.

[22] Finally, Mr. Kempling contends that Holmes J. erred in finding that the issue of whether his writings were discriminatory was a question of fact. In TWU, the Supreme Court concluded that the question of whether the University was engaged in discriminatory practices was a question of law. Consequently, the issue of the character of the writings in this case is also a question of law.

[23] On Mr. Kempling’s submission, the four factors all suggest that deference should not be shown to the Panel and indicate correctness as the appropriate standard of review.

[24] In my view, Holmes J.’s analysis of the pragmatic and functional approach as it relates to the Panel’s finding of conduct unbecoming was correct. The Panel certainly has greater expertise than the court as to what amounts to conduct unbecoming a member of the BCCT. This determination, though one of mixed fact and law, was “fact-intensive”, and engaged the teaching profession’s expertise and understanding of the role of a teacher. In the result, reasonableness simpliciter is an appropriate standard on which to review the Panel’s determination that Mr. Kempling’s conduct was unbecoming a member of the BCCT.

[25] However, there is, in my view, merit in Mr. Kempling’s contention when considered with respect to the Panel’s determination that his writings were discriminatory. Holmes J. concluded that was a question of fact. The Supreme Court addressed this issue in TWU and said, at paragraph 18:

We mentioned earlier that a lower standard had been applied by the Court of Appeal on the findings of the BCCT with regard to the existence of discriminatory practices and, if they are present, whether they have created a perception that the BCCT condones this discriminatory conduct. The lower standard was also applied to the BCCT finding that the school system has or has not created a risk that graduates of TWU will not provide a discrimination-free environment for all students. We do not believe that different standards should apply in these circumstances. The existence of discriminatory practices is based on the interpretation of the TWU documents and human rights values and principles. This is a question of law that is concerned with human rights and not essentially educational matters.

[Emphasis added.]

[26] A determination that Mr. Kempling’s writings were discriminatory must be based upon an analysis of those writings in light of human rights principles. That issue is a question of law. Further, in TWU, the court stated at paragraph 17 that BCCT’s “expertise does not qualify it to interpret the scope of human rights nor to reconcile competing rights”. As a result, I am of the view that the Panel’s conclusion that Mr. Kempling’s writings were discriminatory must be addressed separately from their ultimate finding of conduct unbecoming, and must be reviewed on a standard of correctness.

b) Penalty

[27] Holmes J. concluded that the Council’s decision regarding the imposition of a one-month suspension should be reviewed on a reasonableness simpliciter standard. Mr. Kempling does not take issue with that conclusion.

Conduct Unbecoming a Member of the BCCT

[28] It appears to be common ground that whether the Panel was correct in concluding that Mr. Kempling was guilty of conduct that was unbecoming a member of the BCCT as Holmes J. concluded turns on a consideration of essentially two questions. The first is whether Mr. Kempling’s published writings were discriminatory; the second is whether they caused any harm.

a) The discriminatory nature of the writings

[29] Holmes J. found that Mr. Kempling’s writings provided ample evidence that could reasonably support a finding that he had made and published discriminatory and derogatory statements against homosexuals. He based this conclusion on the fact that in his writings Mr. Kempling consistently associated homosexuals with immorality, abnormality, perversion and promiscuity. Holmes J. concluded that such writings could in themselves be discriminatory and did not need to be directed against a particular individual.

[30] Mr. Kempling contends that Holmes J. erred in his conclusion and submits that, when viewed as a whole, his writings merely express moral disagreement with homosexuality on the basis of deeply held religious convictions. Further, the writings often express tolerance and respect for homosexuals, and stress the importance of engaging and listening to those on both sides of the debate. The fact that some individuals felt that Mr. Kempling’s writings were derogatory does not make them discriminatory. Mr. Kempling was engaged in a public debate about a controversial issue and it is only natural that some would disagree with his point of view.

[31] One of the intervenors, the Canadian Religious Freedom Alliance (the “Alliance”), supports Mr. Kempling’s contention. Holmes J., it is argued, neglected the clear political and religious dimensions of the writings and, in labelling them discriminatory, effectively cut off debate of an important and contentious issue. It is inevitable, the Alliance says, that in debates about moral issues those on either side will judge and often denounce particular actions and behaviours of others. Such debate will often be emotional and controversial. However, labelling it as discriminatory merely because it is critical of the actions or lifestyles of others unjustifiably narrows the field of legitimate moral, religious, and political discussion. The Alliance contends that to brand Mr. Kempling's statements as unacceptably discriminatory threatens to undermine a vibrant notion of pluralism which is central to a functioning democracy. In this regard, the Alliance relies on the Supreme Court's decision in Chamberlain v. Surrey School District No. 36, [2002] 4 S.C.R 710 and, in particular, upon Gonthier J.’s comments at paragraph 132:

Beyond this, nothing in Vriend v. Alberta, [1998] 1 S.C.R. 493, or the existing s. 15 case law speaks to a constitutionally enforced inability of Canadian citizens to morally disapprove of homosexual behaviour or relationships: it is a feeble notion of pluralism that transforms "tolerance" into "mandated approval or acceptance". In my view, the inherent dignity of the individual not only survives such moral disapproval, but to insist on the alternative risks treating another person in a manner inconsistent with their human dignity: there is a potential for a collision of dignities.

[32] The Alliance seizes on Gonthier J.’s notion that an overly broad conception of discrimination may effectively sterilize the political landscape, leaving very little room for dissenting views. This it says will have particularly deleterious effects in the realm of moral and religious discourse, where there is often little room for compromise.

[33] There is, however, a second critical concept referred to by Gonthier J. that is neglected in the intervenor’s argument: the “inherent dignity of the individual”. A central tenet of democratic society is the belief that all people are equally deserving of respect, concern and consideration, and this belief flows from a recognition that each individual is inherently valuable. Statements critical of a person’s way of life or which denounce a particular lifestyle are not in themselves discriminatory. In my view, it is only when these statements are made in disregard of an individual’s inherent dignity that they become so. To hold an individual in contempt or to judge them, in the words of Abella J.A., as she then was, in R. v. Carmen M. (1995), 23 O.R. (3d) 629 at 633, “based not on their actual individual capacities, but on stereotypical characteristics ascribed to them because they are attributed to the group of which the individuals are a member”, is to treat that individual in a manner which is not consonant with their inherent dignity. Statements and actions based on such judgments are the hallmark of discrimination.

[34] Viewed in this light, it is clear that many of Mr. Kempling’s published statements were discriminatory. The following are examples:

Gay people are seriously at risk, not because of heterosexual attitudes, but because of their sexual behaviour, and I challenge the gay community to show some real evidence that they are trying to protect their own community members by making an attempt to promote monogamous, long lasting relationships and to combat sexual addictions. [10 August 1997, Quesnel Cariboo Observer.]

We cannot criticize the homosexual community for irresponsible behaviour when there is no legal requirement for them to behave responsibly. [12 April 2000, Quesnel Cariboo Observer.]

I refuse to be a false teacher saying that promiscuity is acceptable, perversion is normal, and immorality is simply ‘cultural diversity’ of which we should be proud. [19 July 2000, Quesnel Cariboo Observer.]

[35] Mr. Kempling’s statements about homosexuals are based on stereotypical notions about homosexuality and demonstrate a willingness to judge individuals on the basis of those stereotypes. As a result, I am of the view that even if considered on a standard of correctness, as opposed to one of reasonableness, the conclusion that Mr. Kempling’s writings were discriminatory is unassailable.

b) The nature of the harm

[36] Holmes J. concluded that a teacher may be disciplined by the BCCT for off-duty conduct when that conduct negatively impacts the school system or impugns the teacher’s ability to carry out his professional duties. He saw the harm resulting from Mr. Kempling’s conduct as two-fold: 1) harm per se; and 2) harm that could be inferred as the reasonable and probable consequences of the conduct.

[37] Mr. Kempling’s conduct appeared to Holmes J. to be harmful to the school system per se, both because of its discriminatory content, and because Mr. Kempling explicitly linked what he wrote to his role as a teacher and counsellor. Holmes J. concluded as follows:

[46] By publicly linking his private, discriminatory views of homosexuality with his status and professional judgment as a teacher and secondary school counsellor, the appellant called into question his own preparedness to be impartial in the fulfilment of his professional and legal obligations to all students, as well as the impartiality of the school system. That in itself is a harmful impact on the school system as a non-discriminatory entity.

[38] Holmes J. found that the following harms could reasonably be inferred from the appellant’s conduct: 1) a loss of public confidence in Mr. Kempling and the public school system; 2) a loss of respect by the students for Mr. Kempling and for other teachers generally; 3) controversy within the school system that would disrupt its proper functioning; and 4) a reluctance on the part of homosexual students to approach Mr. Kempling for counselling, thereby impairing his ability to carry out his professional duties. In the result, Holmes J. concluded that, absent Charter issues, the Panel’s finding of conduct unbecoming was reasonable and should not be disturbed.

[39] Mr. Kempling submits that the Panel was not entitled to draw an inference of harm in the case against him, and that Holmes J. erred in his support of the inference. The burden was on the BCCT to prove harm and the onus was with it to call such evidence as it could in that regard. Mr. Kempling relies on the Supreme Court of Canada’s decision in Ross v. New Brunswick School District No. 15, [1996] 1 S.C.R. 825. In Ross, the Supreme Court concluded at paragraph 45 that a teacher could be sanctioned for off-duty conduct if that conduct is likely to produce a “poisoned” school environment:

It is on the basis of the position of trust and influence that we hold the teacher to high standards both on and off duty, and it is an erosion of these standards that may lead to a loss in the community of confidence in the public school system. I do not wish to be understood as advocating an approach that subjects the entire lives of teachers to inordinate scrutiny on the basis of more onerous moral standards of behaviour. This could lead to a substantial invasion of the privacy rights and fundamental freedoms of teachers. However, where a "poisoned" environment within the school system is traceable to the off-duty conduct of a teacher that is likely to produce a corresponding loss of confidence in the teacher and the system as a whole, then the off-duty conduct of the teacher is relevant.

[40] The approach taken in Ross was adopted in TWU. In that case, the majority noted that, in situations where a teacher’s constitutionally protected rights are at issue, the BCCT may regulate the off-duty conduct if there is evidence of a poisoned school environment. In this regard, Iacobucci J. and Bastarache J. stated as follows at paragraphs 36 and 37:

Instead, the proper place to draw the line in cases like the one at bar is generally between belief and conduct. The freedom to hold beliefs is broader than the freedom to act on them. Absent concrete evidence that training teachers at TWU fosters discrimination in the public schools of B.C., the freedom of individuals to adhere to certain religious beliefs while at TWU should be respected. The BCCT, rightfully, does not require public universities with teacher education programs to screen out applicants who hold sexist, racist or homophobic beliefs. For better or for worse, tolerance of divergent beliefs is a hallmark of a democratic society.

Acting on those beliefs, however, is a very different matter. If a teacher in the public school system engages in discriminatory conduct, that teacher can be subject to disciplinary proceedings before the BCCT. Discriminatory conduct by a public school teacher when on duty should always be subject to disciplinary proceedings. This Court has held, however, that greater tolerance must be shown with respect to off-duty conduct. Yet disciplinary measures can still be taken when discriminatory off-duty conduct poisons the school environment.

[41] Mr. Kempling contends that as his constitutionally protected rights were engaged in this case, the BCCT did not have the right to regulate his off-duty conduct in the absence of direct evidence of harm to the school system. As there was no evidence of a poisoned school environment, and as the Panel relied upon an inference of harm, the Panel’s decision and Holmes J.’s support of it were in error.

[42] A finding of conduct unbecoming may be justified on the basis that a teacher’s conduct caused harm to the education system. I do not accept that it is necessary to determine whether an inference of harm is sufficient to sustain a finding of conduct unbecoming as there was, in my view, direct evidence that Mr. Kempling’s writings caused harm. This harm is not to any particular student or parent (though such harm may have been caused), but to the integrity of the school system as a whole.

[43] Non-discrimination is a core value of the public education system; the integrity of that system is dependent upon teachers upholding that value by ensuring the school environment is accepting of all students. When a teacher makes public statements espousing discriminatory views, and when such views are linked to his or her professional position as a teacher, harm to the integrity of the school system is a necessary result.

[44] In Mr. Kempling’s writings he clearly states his belief that homosexuality is immoral, perverse, and perhaps the product of mental illness. He makes it equally clear that these views will inform his actions as a teacher and counsellor. The following passages provide two examples:

Sexual orientations can be changed and the success rate for those who seek help is high. My hope is that students who are confused over their sexual orientation will come to see me.

It could save their life.

[Quesnel Cariboo Observer, 27 August 1997, AB. 18]

I refuse to be a false teacher saying that promiscuity is acceptable, perversion is normal, and immorality is simply “cultural diversity” of which we should be proud.

Section 95(2) of the School Act states that teachers must “inculcate the highest moral standards”.

[Quesnel Cariboo Observer, 19 July 2000, AB. 43]

[45] These statements demonstrated that Mr. Kempling is committed to fulfilling his public and professional responsibilities in an intolerant and discriminatory manner. Proof that he had actually discriminated against a particular student, or evidence of a poisoned school environment, was not required to prove that the school system had sustained harm. Mr. Kempling’s statements damaged the integrity of the school system as a whole. They undermined the core value of non-discrimination by denying homosexual students an education environment accepting of them.

[46] In the result, I consider that there was sufficient evidence to support a finding that Mr. Kempling’s off-duty statements caused harm to the integrity of the school system. Accordingly, subject only to the Charter considerations Mr. Kempling raises, the Panel’s finding of conduct unbecoming was reasonable and was properly upheld.

The Penalty Imposed

[47] Holmes J. reviewed the penalty recommended by the Panel and imposed by the Council from the perspective of circumstances of the case and of Mr. Kempling. There is no question that Mr. Kempling enjoyed a wealth of support from those who know him and he has contributed much to his community. But both the Panel and the Council saw his misconduct as serious and Holmes J. saw no basis on which it could be said that the penalty imposed was not, in the circumstances, reasonable. He concluded as follows:

[67] Open discrimination by a public school teacher as seen in Ross is serious, particularly where inaction or a mere reprimand by the teaching profession and the school system could be seen as condonation.

[68] At any rate, judicial review on a reasonableness standard does not entitle a court to substitute its own opinion for the administrative decision-maker’s. Regardless of what sanction this Court might have imposed, in my view there is nothing in the circumstances of the case and the appellant, or in the Council’s reasons which, absent Charter issues, suggests that the penalty imposed is unreasonable. …

[48] Mr. Kempling says now only that the statute provides for a broad range of penalties and it was neither necessary nor appropriate that the Panel recommend, and the Council impose, a suspension of his teaching certificate. Mr. Kempling, however, did not advance any argument as to the tenability of the reasons for the penalty. Like Holmes J., I am unable to find any basis on which it could be said that the penalty seen fit to be imposed was not reasonable. I consider that, again subject to Charter considerations, the penalty imposed was properly upheld.

The Infringement of Charter Rights

[49] The case Mr. Kempling advances on the infringement of his Charter rights requires a determination of what, if any, of his rights can be said to have been infringed under ss. 2(a), 2(b), and 15 and then a consideration of whether any infringement there may have been is within what is demonstrably justified in a free and democratic society (s. 1). Mr. Kempling makes no submission on s. 7 on this appeal.

a) Section 2(a): Freedom of Religion

[50] I do not consider it was open to Mr. Kempling to raise s. 2(a) for the first time on his appeal from the administrative decisions because he did not appear before the Panel at the first hearing and therefore laid no evidentiary basis upon which an infringement of his religious freedom could be assessed.

[51] It is well recognized that a proper evidentiary foundation is necessary to a consideration of the infringement of a Charter right: MacKay v. Manitoba, [1989] 2 S.C.R. 357, 61 D.L.R. (4th) 385. Charter decisions are not to be made in a factual vacuum. This can be said to be particularly so with respect to freedom of religion which is an individual, not a generalized, right. What is required is evidence of a person’s obligations and an opportunity to assess his or her sincerity which generally involves credibility: Syndicat Northcrest v. Amselem, [2004] 2 S.C.R. 551.

[52] There is no evidence in this case which even identifies Mr. Kempling’s religion or its tenets. Most significantly, there is no evidence that establishes that his ability to practice his religion would in any way be compromised by his being restricted from making discriminating public statements about homosexuals. Shortly put, no evidentiary case of a s. 2(a) infringement has been advanced.

b) Section 2(b): Freedom of Expression

[53] There was, of course, evidence before the Panel in the form of Mr. Kempling’s writings on which a consideration of an infringement of his right to express his convictions could be undertaken, but, as indicated, Holmes J. concluded that no infringement had occurred. While the BCCT now accepts that the penalty imposed on Mr. Kempling did infringe his s. 2(b) rights, I consider it desirable to state why I consider the concession to be right in law.

[54] Holmes J. concluded that there was no violation of s. 2(b) of the Charter because the BCCT did not restrict Mr. Kempling’s ability to express himself on the issue of homosexuality, but rather restricted the capacity in which he could express his views in that regard (i.e. it restricted his ability to express his views in the capacity of a teacher and counsellor in the public school system). In coming to this conclusion, Holmes J. relied upon the decision in Walker v. Prince Edward Island, (1993), 107 D.L.R. (4th) 69 (P.E.I. S.C.A.D.), writing as follows:

[74] In Walker v. Prince Edward Island, 107 D.L.R. (4th) 69 (P.E.I.S.C. - A.D.) ["Walker"], the court held that a legislative provision restricting the ability of anyone other than public accountants to engage in public accounting and auditing did not infringe s. 2(b) of the Charter. This is because the provision did not prohibit anyone from expressing themselves about any accounting matter, but only restricted the capacity in which they could do so, i.e. not with the authority, or in the capacity, of a public accountant unless so qualified or authorized. This decision was subsequently affirmed by the Supreme Court of Canada [[1995] 2 S.C.R. 407].

[75] Applying Walker to the case at bar, there has been no infringement, by purpose or effect, of the appellant's s. 2(b) Charter rights. The appellant was at all times free and remains free to express his views on homosexuality in a non-violent manner qua private citizen. What the appellant is being sanctioned for is not the expression of any particular view per se. The purpose and effect of the disciplinary action taken against the appellant is to sanction him for his off-duty expression of personally-held discriminatory views purportedly with the authority or in the capacity of a public secondary school teacher and counsellor, which resulted in harm to the school system.

[55] It is, however, my view that Walker does not stand for the proposition for which Holmes J. cited it. What was decided in that case was that a government restriction on a person’s ability to hold himself out as a public accountant does not violate s. 2(b). This seems to me to be clear from the following passage found at p. 73 of the decision:

It therefore seems that at least the reporting functions of public accounting and auditing may fall within the ambit of s. 2(b). However, in my view, s. 14(1) of the Public Accounting and Auditing Act does not contravene s. 2(b) of the Charter even if some aspects of public accounting and auditing do meet the very broad definition given to the term "expression" by the Supreme Court of Canada in Irwin Toy. I have come to that conclusion because s. 14(1) does not prohibit anyone from expressing themselves about any accounting matter; it only restricts the capacity in which they can do so. What it does is prohibit those who are not authorized by the Institute from carrying on business as, laying claim to the authority of, or representing themselves to be public accountants. Thus, the respondents are free to express themselves on any of the matters referred to in s. 1(e) so long as they do not purport to be doing so with the authority of, or in the capacity of, a public accountant.

[Emphasis added.]

[56] Walker does not establish the proposition that s. 2(b) may not protect an individual’s right to express himself in his professional capacity. Such an interpretation is contrary to a broad and liberal interpretation of s. 2(b) which has been the hallmark of the Supreme Court of Canada jurisprudence on the issue.

[57] In my view, the Supreme Court’s decision in Ross is determinative. In that case, La Forest J. for the court concluded that the off-duty discriminatory statements of a teacher were protected by s. 2(b). The school board’s attempt to restrict Ross’s ability to express his views violated his rights. Ross is not to be distinguished on the basis that there is no reference in the judgment to a direct link between the racist statements and Ross’s status as a teacher. Walker does not support the proposition that s. 2(b) may not protect statements made in one’s professional capacity, and therefore the lack of a direct link between Ross’s statements and his status as teacher is irrelevant. It is apparent from the opening paragraph of the judgment in Ross that the Supreme Court was addressing directly the issue that now arises in this case:

This appeal concerns the obligation imposed upon a public school board pursuant to provincial human rights legislation to provide discrimination-free educational services. It further involves the fundamental freedom of an individual teacher to publicly express his views and to exercise his religious beliefs during his off-duty time. The main issues raised by this appeal are whether a school board, which employs a teacher who publicly makes invidiously discriminatory statements, discriminates with respect to services it offers to the public pursuant to s. 5(1) of the New Brunswick Human Rights Act, R.S.N.B. 1973, c. H-11, and whether an order to rectify the discrimination, which seeks to remove the teacher from his teaching position, infringes upon the teacher's freedom of expression and freedom of religion guaranteed under ss. 2(a) and 2(b) of the Canadian Charter of Rights and Freedoms.

[Emphasis added.]

[58] Ultimately La Forest J. concluded as follows, at paragraph 66:

In the present case, the purpose of the Board's order, while intended to remedy the discrimination with respect to services available to the public, is to prevent the respondent from publicly espousing his views while he is employed as a public school teacher. On its face, the purpose of the order is to restrict the respondent's expression; it has a direct effect on the respondent's freedom of expression, and so violates s. 2(b) of the Charter.

[59] This conclusion is directly applicable to this case.

[60] In my view, the BCCT’s one-month suspension of Kempling's teaching certificate was a violation of his s. 2(b) rights. Undoubtedly the rights of freedom of expression protected by the Charter will often come into conflict with other values. The protection of children, the rights of a minority not to be subjected to discrimination, and the rights of an employer to regulate the work place are all countervailing values which are at stake in this case. The Supreme Court, however, has made it clear that a determination of how to balance such values should be undertaken as part of the s. 1 analysis. These values should not be used to restrict the scope of s. 2(b).

[61] In Osborne v. Canada (Treasury Board), [1991] 2 S.C.R. 69, Sopinka J., for the majority, stated at 92-93:

Therefore, where opposing values call for a restriction on the freedom of speech, and apart from exceptional cases, the limits on that freedom are to be dealt with under the balancing test in s. 1, rather than circumscribing the scope of the guarantee at the outset. In this respect, the decision of the Court in R. v. Keegstra, [1990] 3 S.C.R. 697, is illuminating. In Keegstra, Dickson C.J. referred to the test articulated in Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927, and said (at p. 729) with respect to a finding of breach of s. 2(b):

Apart from rare cases where expression is communicated in a physically violent form, the Court thus viewed the fundamental nature of the freedom of expression as ensuring that "if the activity conveys or attempts to convey a meaning, it has expressive content and prima facie falls within the scope of the guarantee" (p. 969). In other words, the term "expression" as used in s. 2(b) of the Charter embraces all content of expression irrespective of the particular meaning or message sought to be conveyed (Reference re ss. 193 and 195.1(1)(c) of the Criminal Code (Man.), supra, at p. 1181, per Lamer J.).

The second step in the analysis outlined in Irwin Toy is to determine whether the purpose of the impugned government action is to restrict freedom of expression. The guarantee of freedom of expression will necessarily be infringed by government action having such a purpose.

[62] The broad interpretation given to s. 2(b) encompasses the statements at issue in this case, and therefore, the BCCT’s attempts to curtail Mr. Kempling’s ability to publish his views about homosexuality must be considered a violation of his right to free expression.

c) Section 15: Equality under the law

[63] Mr. Kempling contends that his s. 15 right to be treated equally has been infringed. He maintains that he has been denied the opportunity to express deeply-held religious and moral views that others may express only because he is a teacher in the provincial public school system. He is, he says, disadvantaged in that he is precluded from participating in public debate on an issue of importance to him.

[64] It might be said that Mr. Kempling’s s. 15 argument lacks an evidentiary basis in much the same way as does his s. 2(a) argument. However, Holmes J. disposed of Mr. Kempling’s contention that his right to be treated equally had been infringed by pointing out that it is not a matter of Mr. Kempling being treated equally with the public at large. Rather, it is a matter of his being treated the same as other members of the BCCT, whose professional conduct is regulated in the same way under the same legislation. Holmes J. said that “it was entirely appropriate that the teaching profession, like any profession, be held to more stringent standards of conduct than the lay public” and that it is the members of his profession that is the appropriate comparative group to consider for the purpose of s. 15. Mr. Kempling does not allege that the BCCT treated him differently than it does other teachers.

[65] I do not consider there to have been any error on the part of Holmes J. in concluding that no case of an infringement of Mr. Kempling’s s. 15 rights was made out.

d) Section 1: Demonstrable justification

[66] It follows that what remains to be considered is whether the infringement of Mr. Kempling’s s. 2(b) right to freedom of expression can be demonstrably justified in a free and democratic society.

[67] In his analysis, Holmes J. applied the test developed by the Supreme Court in R. v. Oakes, [1986] 1 S.C.R. 103. As set out by Holmes J. in paragraph 86, in that case, the majority stated that for a violation of the Charter to be justified under s. 1 there must be:

1. a pressing and substantial objective of sufficient importance to warrant overriding a constitutionally protected right or freedom,

2. the impugned measure must be proportionate to the achievement of that objective, i.e.

a. there should be a rational connection between the measure and the objective

b. there should be minimal impairment of the Charter rights and freedoms in question

c. there should be proportionality between the objective and the effects of the measure, i.e. the objective and the positive effects outweigh the deleterious effects of the measure (Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835).

[68] Holmes J. addressed each element of the test comprehensively. I do not consider it necessary to outline the whole of his analysis but rather confine myself to referencing such in the context of what are now said to be errors in his analysis.

[69] Mr. Kempling contends that the violation of his s. 2(b) right cannot be justified under s. 1, arguing that there was no pressing or substantial objective which could justify overriding his right to express his political and religious views. In the alternative, he argues that there is no rational connection between the measure and the objective; that there is no minimal impairment of his right in question; and that there is no proportionality between the objective and the effects of the measure.

[70] In support, the Alliance argues that Holmes J. erred in two respects in his s. 1 analysis. First, it is submitted that Holmes J. did not take into account the political and religious dimensions of Mr. Kempling’s written statements, and in so doing improperly characterized his speech as having “low value”. It maintains that Mr. Kempling was engaged in a political discussion concerning a controversial issue and that political discourse of this kind is at the core of the s. 2(b) protection. Holmes J.’s mischaracterization is said to taint the whole of his s. 1 analysis. When one begins with the premise that the speech is of low value, it becomes easy to justify not protecting it.

[71] Second, the Alliance argues that Holmes J. erred in basing his s. 1 justification in part upon an inference that Mr. Kempling’s statements caused harm. It maintains that Holmes J. focused on the content of Mr. Kempling’s speech, as opposed to its effects, and as a result his conclusion was based primarily upon an assessment of the character of the expression. It is said that Mr. Kempling’s s. 2(b) rights should not be curtailed on the basis of subjective perceptions regarding which ideas are valuable and which are not. To limit Mr. Kempling’s Charter rights, there must be more than a mere inference of harm based on an assessment of the content of the expression; there must be some tangible evidence that harm has been caused. The Alliance points to the Supreme Court’s decision in Ross where a violation of Ross’s s. (2)(b) rights was held to be justified on the basis of demonstrable evidence of a “poisoned school environment”. No such evidence exists in this case.

[72] The Alliance says that Holmes J.’s mischaracterization of Mr. Kempling’s statements, coupled with a lack of evidence of harm, resulted in a flawed s. 1 analysis. A proper analysis is said to lead inevitably to the conclusion that prohibiting Mr. Kempling from expressing his opinions about sexual morality while off duty, in the absence of evidence of a poisoned school environment, is an unjustifiable infringement of his right to freedom of expression.

[73] This case rests in large part upon a resolution of how the competing Charter rights engaged are to be balanced. On the one hand, lie the rights of Mr. Kempling to express his views concerning sexual morality which engage his s. 2(b) right to freedom of expression. On the other hand, lie the rights of homosexual students, and students in general, to a school environment that is free from discrimination and in harmony with s. 15 of the Charter. It is through the s. 1 analysis that these rights can be balanced.

[74] Holmes J. recognized that an assessment of the contextual factors surrounding the infringement must be undertaken in a s. 1 analysis. In Harper v. Canada (Attorney General), [2004] 1 S.C.R. 827, a case involving a challenge to provisions of election legislation on the basis that they infringed s. 2(b), the majority identified four relevant contextual factors: 1) the nature of the harm; 2) the vulnerability of the group; 3) the subjective fears and apprehension of harm; and 4) the nature of the impugned activity. The arguments advanced now require an assessment of the first and fourth factors.

i) The Nature of the Impugned Activity

[75] The Supreme Court has made it clear that the nature of the impugned expression will, in part, determine how difficult it will be to justify an infringement of s. 2(b). In Ross, La Forest J. made the following comments at paragraph 89:

In my reasons in RJR-MacDonald, supra, I stated that the "core" values of freedom of expression include "the search for political, artistic and scientific truth, the protection of individual autonomy and self-development, and the promotion of public participation in the democratic process" (p. 280). This Court has subjected state action limiting such values to "a searching degree of scrutiny" (p. 281). This standard of scrutiny is not to be applied in all cases, however, and when the form of expression allegedly impinged lies further from the "core" values of freedom of expression, a lower standard of justification under s. 1 has been applied.

And in R v. Keegstra, [1990] 3 S.C.R. 697 at 760, Dickson C.J. made the following observation:

In my opinion, however, the s. 1 analysis of a limit upon s. 2(b) cannot ignore the nature of the expressive activity which the state seeks to restrict. While we must guard carefully against judging expression according to its popularity, it is equally destructive of free expression values, as well as the other values which underlie a free and democratic society, to treat all expression as equally crucial to those principles at the core of s. 2(b).

[76] There is undoubtedly a political element to Mr. Kempling’s expression, and portions of his writings form a reasoned discourse, espousing his views as to detrimental aspects of homosexual relationships. Though his views may be unpopular, he was, in his more restrained writings, engaged in a rational debate of political and social issues; such writing is near the core of the s. 2(b) expression. However, not all of his writings were of this nature and as I have said, Mr. Kempling’s writings at times clearly crossed the line of reasoned debate into discriminatory rhetoric.

[77] In a number of Mr. Kempling’s published writings he relied upon stereotypical notions of homosexuality, and he expressed a willingness to judge individuals on the basis of these notions. In doing so, he ignored the inherent dignity of the individual; this concept is essential to a functioning democracy, and, in my view, political discourse which ignores it is not representative of the core values underlying s. 2(b). Accordingly, Mr. Kempling’s published writings, taken as a whole, are not deserving of a high level of constitutional protection.

ii) Nature of the Harm

[78] In Ross, the Supreme Court found that evidence of a poisoned school environment was a sufficient basis on which a teacher could be disciplined for comments made while off duty. Ross, therefore, is authority for the proposition that evidence of a poisoned school environment may be a sufficient condition for a justification of a Charter infringement. However, the case does not, in my view, stand for the proposition that such evidence is a necessary condition. I agree that to justify an infringement of Mr. Kempling’s rights, his actions must have caused some harm, but this harm need not be in the form of a “poisoned school environment”.

[79] As I have said, the harm in evidence in this case is not that of discriminatory actions directed against particular individuals, but rather is that sustained by the school system as a whole. In his writings, Mr. Kempling made clear that his discriminatory beliefs would inform his actions as a teacher and counsellor. His writings therefore, in themselves, undermine access to a discrimination-free education environment. Evidence that particular students no longer felt welcome within the school system, or that homosexual students refused to go to Mr. Kempling for counselling, is not required to establish that harm has been caused. Mr. Kempling’s statements, even in the absence of any further actions, present an obstacle for homosexual students in accessing a discrimination-free education environment. These statements are therefore inherently harmful, not only because they deny access, but because in doing so they have damaged the integrity of the school system as a whole.

[80] Once it is accepted that Mr. Kempling’s writings fall somewhere outside of the core values underlying s. 2(b) and that there was evidence that his actions caused harm, the remainder of the s. 1 analysis is relatively straightforward. As Holmes J. found, the BCCT had numerous pressing and substantial objectives, including ensuring a tolerant and discrimination-free environment, and restoring and upholding the integrity of the school system. As the harm at issue in this case arises as a direct and necessary result of Kempling’s writings, in my view the rational connection between the impugned activity and the harm caused is self-evident. Moreover, as Holmes J. found, there is a rational connection between the BCCT’s actions and the harm caused. Through its sanction of Mr. Kempling, the BCCT has made a strong statement to the public that what he did was wrong and that it does not condone discrimination. This statement goes some way to repairing the damage done to the integrity of the school system and tends to remove any obstacles restricting access to a discrimination-free environment.

[81] As to the question of minimal impairment, it is my view that as Mr. Kempling’s writings did cause demonstrable harm to the school system, this case is essentially indistinguishable from Ross. As an 18 month suspension and lifetime ban from working for the school board were upheld as minimally impairing in that case, it follows that a one-month suspension must meet constitutional muster here.

[82] Finally, I am in agreement with Holmes J. that the deleterious effects of the sanction were proportionate when weighed against their salutary effects. Mr. Kempling can remain a BCCT member and continue while off duty to express his views on homosexuality by way of reasoned discourse befitting a teacher and counsellor. What he cannot do is to advance such views in a discriminatory manner that will be seen publicly to be those of a teacher and counsellor in the public school system. While I recognize that Mr. Kempling’s prominence as a teacher in what is a relatively small community may of itself confine his ability to express his views on homosexuality regardless of whether he makes mention of the fact that he is a teacher, the deleterious effects of the infringement are, nonetheless, relatively limited when compared to the salutary effects; namely, restoring the integrity of the school system and removing any obstacles preventing access for students to a tolerant school environment.

[83] In the result, I conclude that Holmes J. made no error in his assessment that the disciplinary action of the BCCT in this case was demonstrably justified under s. 1 of the Charter.

Disposition

[84] It is for these reasons that I would dismiss the appeal.

“The Honourable Mr. Justice Lowry”

I agree:

“The Honourable Mr. Justice Donald”

I agree:

“The Honourable Madam Justice Huddart”

Corrigendum: 7 September 2005

In paragraph 75 the citation for R. v. Keegstra has been changed to R. v. Keegstra, [1990] 3 S.C.R. 697 at 760, Dickson C.J. made the following observation.

Citation:	Kempling v. British Columbia College of Teachers,
	2005 BCCA 327