IN THE SUPREME COURT OF BRITISH COLUMBIA
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Citation: |
Kempling v. The British Columbia College of Teachers, |
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2004 BCSC 133 |
Date: 20040203
Docket: L021838
Registry: Vancouver
Between:
Christopher Stephen Myles Kempling
Appellant
And
The British Columbia College of Teachers
Respondent
And
The B.C. Civil Liberties Association
Intervener
Before: The Honourable Mr. Justice Holmes
Reasons for Judgment
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Counsel for the Appellant: |
William S. Clark |
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Counsel for the Respondent: |
Bruce Laughton |
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Counsel for the Intervener: |
Elliott M. Myers, Q.C. |
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Date and Place of Trial: |
July 28-30, 2003 |
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Vancouver, B.C. |
TABLE OF CONTENTS
BACKGROUND............................................................... 3
ISSUES................................................................... 7
1. Procedural Fairness................................................. 7
Adequacy of the reasons for the finding of conduct unbecoming........ 8
Use of evidence..................................................... 10
2. Approach to Standards of Review & The Charter...................... 12
Standards of Review................................................. 15
The Determination of Conduct Unbecoming a BCCT Member............... 15
The Standard of Review............................................ 15
Application of the standard of review............................. 20
3. The Penalty Decision by the Council of the BCCT.................... 31
The standard of review............................................ 31
Application of the standard of review............................. 35
4. Charter Issues..................................................... 38
Have the Appellant's Charter Rights been Infringed?................. 39
Section 2(b)...................................................... 39
Section 2(a)...................................................... 42
Section 7......................................................... 44
Section 15........................................................ 45
If the Appellant's Charter Rights Were Infringed, is the Infringement
Justified Under s. 1 of the Charter?............................... 45
Contextual factors................................................ 46
Pressing and substantial objective................................ 52
Rational connection............................................... 52
Minimal impairment................................................ 54
Proportionality in the effects of the sanction.................... 58
Conclusion on s. 1 of the Charter................................. 59
DISPOSITION............................................................. 59
[1] The appellant, Christopher Stephen Myles Kempling, was a secondary school teacher and counsellor employed by the Quesnel School District in Quesnel, British Columbia. The respondent, the British Columbia College of Teachers ("BCCT"), is the statutory body empowered by the Teaching Profession Act, R.S.B.C. 1996, c. 449, to oversee the self-regulation of the teaching profession in public schools in British Columbia for the public interest. The appellant has been a BCCT member since 1980, with a long and unblemished teaching career, and a notable record of community service. The appellant is also qualified as a registered clinical counsellor.
[2] Between 1997 and 2000, the appellant wrote and published in the local newspaper, the Quesnel Cariboo Observer, an article and a series of letters to the editor expressing his views on homosexuals. Those writings drew a heated response from readers, some of whom wrote letters to the newspaper branding the appellant's statements as discriminatory against homosexuals.
[3] On May 8, 2001, the respondent issued a Citation against the appellant charging him with professional misconduct or conduct unbecoming a BCCT member, on the grounds that he had made discriminatory and derogatory statements against homosexuals in a number of published writings. The Citation was issued as part of an investigation by the respondent, prompted by a complaint against the appellant, into his public writings to the newspaper. During the investigation the appellant voluntarily produced other writings by him on the topic of homosexuality not previously known to the respondents. These other writings were two essays published for free distribution, private correspondence to city councillors, the Director of Instruction, and a private memorandum to the Director and various secondary school principals.
[4] A hearing was held on the charges of professional misconduct or other conduct unbecoming a BCCT member on April 15, 2002, before a Hearing Panel of the disciplinary committee of the BCCT. The respondent was represented by counsel; the appellant neither attended nor sent a representative to the hearing. Pursuant to s. 33 of the Teaching Profession Act and Bylaw 6.J.09 of the BCCT, the hearing proceeded in the appellant's absence.
[5] The evidence consisted of the appellant's writings as well as written responses by others in the community to them. Based on some of this evidence, the Hearing Panel in its decision May 9, 2002, made specific findings of fact with reference to particular statements made by the appellant in his writings published in the Quesnel Cariboo Observer. The Hearing Panel found his writings to be discriminatory and demonstrated that he was not prepared to take into account the educational system's core values. Non-discrimination which includes recognizing homosexuals' right to equality, dignity, and respect, is one of the core values.
[6] The Panel also found that, despite the appellant's conduct occurring off-duty and the lack of direct evidence of a poisoned school environment, an inference could be drawn as to the reasonable and probable consequences of his published writings. Although the Panel did not explicitly state what those consequences were, their quotation of the following passage from Shewan v. Abbotsford School District No. 34 (1987), 47 D.L.R. (4th) 106 at 110 (B.C.C.A.), (as quoted in Ross v. New Brunswick School District No. 15, [1996] 1 S.C.R. 825 at ¶44) is indicative:
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.
The Hearing Panel found the appellant guilty of conduct unbecoming a BCCT member.
[7] On June 13, 2002, the appellant, represented by counsel, filed a Notice of Appeal to this Court on the Panel's finding of conduct unbecoming and for the first time claimed infringement of his rights under ss. 2(a), 2(b), and 15 of the Canadian Charter of Rights and Freedoms. On November 18, 2002, the Panel held a hearing to receive submissions on an appropriate penalty for the appellant. The appellant was represented by counsel at this hearing. On December 7, 2002, the Panel recommended a one-month suspension of the appellant's teaching certificate, notification of this suspension to various licensing authorities, and publication of the appellant's name and a summary of the case to BCCT members and the public.
[8] On April 1, 2003, the BCCT Council held an oral hearing on the issue of the penalty, and on April 14, 2003, a majority of the Council adopted the Panel's reasons and recommendations. On April 17, 2003, the appellant filed an amended Notice of Appeal with this Court, appealing both the Panel’s finding of conduct unbecoming, and the penalty decision on the issue of suspension only. It was also that the appellant first claimed infringement of his s. 7 Charter rights. A Consent Order staying the penalty pending the outcome of this appeal was pronounced May 1, 2003 and entered May 2, 2003.
[9] The issues on appeal are as follows:
1. Was there any procedural unfairness in the Hearing Panel's finding of conduct unbecoming a BCCT member?
2. a) The appropriate standard of review for the Hearing Panel's finding of conduct unbecoming a BCCT member.
b) The application of that standard.
3. a) The appropriate standard of review for the BCCT Council decision on the penalty.
b) The application of that standard.
4. Charter issues
a) Would consideration of Charter claims raised first on appeal be prejudicial to the respondent?
b) Have the appellant’s Charter rights been infringed?
c) If so, is the infringement saved by s. 1 of the Charter?
[10] The appellant submitted that procedural fairness has been violated because the Hearing Panel gave inadequate reasons for its determination of conduct unbecoming a BCCT member on the appellant's part. It is asserted that these were inadequate because they failed to identify which of the appellant's writings and which portions thereof are the subject of the offence. These concerns have been echoed by the intervener.
[11] The appellant and the intervener also raise concern the Hearing Panel did not identify the particular writings which in its view constituted conduct unbecoming, and a concern whether the Panel used the appellant's private letters and memorandum in assessing his public conduct. They argue that would be an improper use of evidence, as the appellant's private (i.e. not intended for distribution) correspondence may have no bearing on the school system and the appellant’s preparedness to fulfil his professional and legal obligations as a public school teacher.
Adequacy of the reasons for the finding of conduct unbecoming
[12] Both the appellant and the intervener submit that the Hearing Panel's reasons for decision are inadequate because they do not identify which particular writings or portions thereof formed the gravamen of the finding of conduct unbecoming. In my view, that is not supported by the record. The Hearing Panel in its reasons:
1. listed the exhibits presented before it,
2. set out submissions made by counsel before the Panel,
3. made findings of fact with reference to particular passages in specific published newspaper writings of the appellant.
The Panel concluded on the basis of those facts that the appellant's writings were discriminatory and found that the appellant's conduct was contrary to the core values of the educational system. The Panel found that Kempling's conduct, despite having occurred off-duty, amounted to conduct unbecoming because an inference can be drawn as to the reasonable and probable consequences of his discriminatory comments. The inferences include an adverse impact on student and public confidence in the school system, loss of respect for the appellant as a teacher and other teachers, and controversy in the school and community disruptive of the proper carrying on of the education system. The Panel found that Mr. Kempling's freedom of expression did not entitle him to act on his beliefs while a BCCT member.
[13] I am satisfied the Hearing Panel's reasons sufficiently indicate the evidence and reasoning on which the decision was based.
[14] Unlike courts of law, administrative tribunals are not strictly bound by the rules of evidence. The fact that the appellant's private correspondence was presented to the Hearing Panel does not itself lead to a finding of procedural unfairness. He chose not to attend or send a representative to the hearing on the charges of professional misconduct or conduct unbecoming, or to challenge any evidence put forward. The transcript of the subsequent hearing by the Panel on recommending a penalty offer no explanation as to why he did not do so. It should be noted that the appellant’s private writings are non-conscriptive evidence, because as mentioned earlier, they were submitted on the appellant's own initiative.
[15] In any case, the real danger of procedural unfairness would lie in what use, if any, was made by the Panel of the appellant's private correspondence. If such correspondence was indeed part of the grounds for the finding of conduct unbecoming or was used to assess the appellant's public writings or other public conduct, there could be unfairness as such evidence may be irrelevant and likely prejudicial.
[16] In finding the appellant guilty of conduct unbecoming a BCCT member, the Panel quoted exclusively from and relied upon documents published in the local newspaper. The Panel in its reasons made no mention of his two essays marked for free distribution. As for his private letters to city councillors and the Director of Instruction, and private memorandum to the Director and various secondary school principals, the Panel stated only that "this was other correspondence in which the appellant expressed his views on sexual orientation". The Panel does not appear to have relied upon or assessed the value and content of these documents in any way. Thus I do not conclude that there was improper use of the appellant's private correspondence in finding him guilty of conduct unbecoming a BCCT member.
[17] There is also no evidence that the Hearing Panel in its subsequent decision on recommendations for a penalty gave any weight to the appellant's private correspondent. With regard to the Panel's use of evidence at the penalty stage, the only discernible difference from the earlier decision on the merits of the appellant's conduct was that Panel also relied upon the two essays marked for free distribution in deciding on a penalty. Although one of the essays (dated December 2000) may have technically fallen outside of the temporal scope of the Citation (July 1997 – August 2000), its use by the Panel at that stage was not inappropriate, as the Panel was no longer assessing the merits of the Citation but rather looking at the appellant's public conduct in a broader context, as well as other factors relevant to sentencing.
2. Approach to Standards of Review & The Charter
[18] This case involves three separate administrative decisions:
1. the Hearing Panel's finding of conduct unbecoming a BCCT member (May 9, 2002),
2. the Hearing Panel's subsequent recommendations on penalty (December 7, 2002), and
3. the BCCT Council's decision to adopt the Panel's reasons and recommendations for penalty (April 14, 2003), issued along with supplementary majority, concurring and dissenting opinions by individual Council members.
Technically it is the first and last decisions that are on appeal, though it may be argued the second and last decisions are the same. Both the appellant and the respondent assumed that there could only be one standard of review for all of the decisions below, or alternatively treated the decisions as one for the purposes of this appeal.
[19] The appellant further submitted that because his Charter rights are engaged, the standard of review for the entirety of this case must be correctness. In reply, the respondent submitted that because Charter arguments were raised only on appeal, to consider them at this point would be prejudicial, and that the proper standard of review for the whole of this case, absent Charter issues, is reasonableness simpliciter.
[20] With respect, neither of the approaches suggested are suitable for this case. Because of their considerable separation in time, the difference in subject matter and in determination of elements of the offence as opposed to determination of appropriate sanction and the fact that they were not made by the same decision-making bodies, it would be unwise to treat the three decisions as one. The affirmation or overturning of one of the decisions under review does not necessarily dictate that the same result would be appropriate for the entire case. A more cautious and preferable approach is to separately review the finding of conduct unbecoming and the penalty decision, with an individual review of the appropriate standard of review for each decision.
[21] As for the impact of Charter issues on selecting the appropriate standard of review, the appellant is correct in saying that determinations made by administrative decision-makers on constitutional issues are reviewable on a standard of correctness. A leading authority for this principle is Cuddy Chicks Ltd. v. Ontario (Labour Relations Board), [1991] 2 S.C.R. 5 at ¶17.
[22] However, the fact that Charter issues may be implicated in one or more aspects of a decision does not automatically lead to the conclusion that the entire decision will be reviewed on the same correctness standard. Here, Cuddy Chicks is authority only for the proposition that administrative decision-makers can expect no curial deference with respect to deciding constitutional issues.
[23] It is preferable to determine whether each decision under appeal would in any event be overturned as a matter of administrative law before considering Charter issues. The following approach is appropriate for review of the two decisions under appeal, namely the conduct unbecoming and consequent penalty decisions:
1. determine the appropriate standard of review for each decision, absent Charter issues
2. apply that standard
3. if there are no grounds to disturb either decision based on the applicable standard of review, consider if the appellant's Charter rights would nevertheless be infringed
4 if there is infringement, is it justified under s. 1?
[24] The earlier noted concerns of BCCT over the potential prejudice of raising Charter arguments at a late stage will be dealt with together with all Charter issues in this case.
[25] The Supreme Court of Canada’s pragmatic and functional approach in Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982, for determining appropriate standards of judicial review was affirmed in the recent case of Dr. Q v. College of Physicians and Surgeons of British Columbia, [2003] 1 S.C.R. 226 ["Dr. Q"]. The pragmatic and functional approach factors are fourfold:
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-ŕ-vis the court's, 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
The Determination of Conduct Unbecoming a BCCT Member
[26] Applying the pragmatic and functional approach to the Hearing Panel's finding of conduct unbecoming a BCCT member, the first factor militates against deference towards the Panel. There is no privative clause, and there is a broad statutory right of appeal to this Court under s. 40 of the Teaching Profession Act, R.S.B.C. 1996, c. 449 ["the Act"]:
Appeals
40 A member may appeal to the Supreme Court any decision, determination or order of the qualifications committee, discipline committee, a subcommittee of either, or the council that affects the member, and from a decision, determination or order of the Supreme Court, may appeal to the Court of Appeal with leave of a justice of that court.
[27] The determination of conduct unbecoming a BCCT member is a decision involving the setting and enforcement of standards of professional responsibility for the teaching profession. This is clearly an area in which the Panel has specialized and greater expertise than the Court; thus the second pragmatic and functional factor militates in favour of greater deference to the Panel's decision.
[28] With regard to the third factor, the purpose of the statute as a whole and the provision in particular, the relevant parts of the Act are as follows:
Object
4 It is the object of the college [i.e. the BCCT] to establish, having regard to the public interest, standards for the education, professional responsibility and competence of its members, persons who hold certificates of qualification and applicants for membership and, consistent with that object, to encourage the professional interest of its members in those matters.
Discipline committee and inquiry
28 (4) if the college receives
(a) in respect of a member, a report from a board under section 16 or 166.28 of the School Act,
(b) in respect of a member or other person, a report from an authority under section 7 of the Independent School Act,
(c) a complaint in writing signed by 5 members about the conduct of a member, or
(d) a report from the registrar relating to the conduct of a member,
the council or discipline committee may, after considering the report or complaint, make or cause to be made a preliminary investigation into the conduct or competence of the member in respect of whom the report or complaint is made.
Citation
30 (1) An inquiry under section 28 or 29 must be commenced by a citation issued at the direction of any 3 elected council members or the chair of the discipline committee, and for the purposes of the inquiry the council or the discipline committee must hold a hearing.
Action after hearing
34 The council or the discipline committee, if authorized by the bylaws under section 23, may after a hearing, and for the purpose of determining whether to take action in respect of the member under section 35,
(a) dismiss the citation
(b) determine whether a member has been guilty of professional misconduct or other conduct unbecoming of a member
[29] The purpose of the Act as a whole, as stated in s. 4, is that the respondent is to set and enforce its own standards of training, professional conduct, and competence for the teaching profession in British Columbia, having regard to protecting and upholding the public interest. Sections 28, 30, and 34 specifically deal with making individual determinations of whether a particular BCCT member's conduct meets those standards. The remarks of the Supreme Court of Canada in Dr. Q, supra at ¶37 are apposite here:
On the one hand, the legislature's intent for the legislation as a whole was to assign to the College the role of balancing competing interests and multiple policy objectives, like the protection of the public, education and qualification of members, the setting of standards of ethics and practice…This purpose suggests considerable deference. However, the discrete issue of adjudicating a claim of professional misconduct -– the particular issue that the statute puts before the Committee –- is quasi-judicial in nature, and therefore militates against deference. In the result, the purpose analysis counsels neither for great deference, nor for exacting scrutiny.
[30] Finally, with regard to the fourth factor, the appellant suggests that the questions before the Hearing Panel at that stage of the proceedings (i.e. whether the appellant made discriminatory and derogatory statements against homosexuals and whether, in the context and capacity that he made them, that amounts to conduct unbecoming a BCCT member) were purely questions of law. However, it is appropriate instead to characterize the former as a question of fact, and the latter as a question of mixed law and fact, specifically a "fact-intensive" question to use the terminology of Dr. Q (at ¶34), warranting more deference.
[31] As both the appellant and the respondent pointed out correctly, the Act does not define "conduct unbecoming a member". Conduct by a member that may be acceptable in one set of circumstances or done in one capacity may not be acceptable in another -– this determination would necessarily be fact-driven, and depend considerably on a recognition of the public interest and on the teaching profession's specialized expertise and understanding of the role of a teacher. The fourth factor thus calls for considerable deference in this case. Balancing the four factors of the pragmatic and functional approach, the appropriate standard of review for the determination of conduct unbecoming a member is, absent Charter issues, reasonableness simpliciter.
Application of the standard of review
[32] On applying the reasonableness standard of review, the Supreme Court of Canada in Law Society of New Brunswick v. Ryan (2003), 223 D.L.R. (4th) 577, 2003 SCC 20 at ¶46-47 and 55-56 ["Ryan"]:
Judicial review of administrative action on a standard of reasonableness involves deferential self-discipline. A court will often be forced to accept that a decision is reasonable even if it is unlikely that the court would have reasoned or decided as the tribunal did…
The standard of reasonableness basically involves asking "after a somewhat probing examination", can the reasons given, when taken as a whole, support the decision? … it requires that the reviewing court assess whether a decision is basically supported by the reasoning of the tribunal or decision-maker, rather than inviting the court to engage de novo in its own reasoning on the matter …
A decision will be unreasonable only if there is no line of analysis within the given reasons that could reasonably lead the tribunal from the evidence before it to the conclusion at which it arrived. If any of the reasons that are sufficient to support the conclusion are tenable in the sense that they can stand up to a somewhat probing examination, then the decision will not be unreasonable and a reviewing court must not interfere …
This does not mean that every element of the reasoning given must independently pass a test for reasonableness. The question is rather whether the reasons, taken as a whole, are tenable as support for the decision. At all times, a court applying a standard of reasonableness must assess the basic adequacy of a reasoned decision remembering that the issue under review does not compel one specific result. Moreover, a reviewing court should not seize on one or more mistakes or elements of the decision which do not affect the decision as a whole.
[33] I find that applying a "somewhat probing examination" leads to the conclusion that the Hearing Panel's finding of conduct unbecoming is reasonable. Although both the appellant and the respondent agreed that the standard of proof to be applied by the Hearing Panel was that of "clear and cogent evidence" enunciated in Jory v. College of Physicians and Surgeons, [1985] B.C.J. No. 320 (S.C.) and affirmed in Dr. Q, supra, at ¶11, it is not the task of the Court to re-evaluate the evidence according to that standard (Dr. Q, supra, at ¶19). The Court's task is strictly to scrutinize the decision according the appropriate standard of judicial review. As the standard here is reasonableness, the Court is to look to see whether the Panel's findings and conclusions had some basis in the evidence (Dr. Q, supra, at ¶41) and whether the reasons as a whole are tenable as support for the decision (Ryan, supra).
[34] The appellant's published writings provided ample evidence that could reasonably support the finding that he made and published discriminatory and derogatory statements against homosexuals. In particular, in his letters and article to the local newspaper, the Quesnel Cariboo Observer, the appellant consistently associated homosexuals with immorality, abnormality, perversion, and promiscuity. Examples of such statements include:
"Thus my main concern with giving same sex couples legal rights in child custody issues is due to the obvious instability and short term nature of gay relationships … My second concern is how can children develop a concept of normal sexuality, when their prime care-givers have rejected the other gender entirely?"
[July 27, 1997, Quesnel Cariboo Observer, guest editorial by Chris Kempling]
"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 attempt to promote monogamous, long lasting relationships and to combat sexual addictions."
[August 10, 1997, Quesnel Cariboo Observer, response letter to the editor]
"The majority of religions consider [homosexual] behaviour to be immoral, and many mental health professionals, including myself, believe homosexuality to be the result of abnormal psycho-social influences. … Homosexuality is not something to be applauded."
[July 1, 2000, Quesnel Cariboo Observer, letter to the editor]
[After relating statements by others asserting that homosexuals are promiscuous] "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."
[July 19, 2000, Quesnel Cariboo Observer, letter to the editor]
[35] The appellant's writings in the newspaper alone were sufficient evidence for a finding that he made and published discriminatory statements, and it was on this evidence that the Panel made that finding.
[36] Although the Panel made no mention of them in its reasons for decision, the appellant's two papers published for free distribution, while having an overall less inflammatory tone, also contain content that could reasonably be characterized as discriminatory. In his paper entitled "Sexual Orientation Curricula: Implications for Educators" (March 14, 2000), the appellant claims that the "gay lifestyle" is characterized by promiscuity and suggests that teaching about homosexuality in a way that does not paint it as unhealthy or immoral is tantamount to teaching falsehood. Readers of this paper might reasonably apprehend the appellant as insinuating that homosexuals are pedophiles or become homosexual as a result of pedophilia. Similar statements are made in his second paper entitled, "HOPE versus PRIDE: Moderate Homosexual Opposition to Gay Extremism", (December 22, 2000).
[37] It is true that on one occasion the appellant did write a letter to the editor of the Quesnel Cariboo Observer (April 12, 2000) in support of legislation extending some legal rights to homosexuals, and that in one of his papers ("HOPE versus PRIDE: Moderate Homosexual Opposition to Gay Extremism", December 22, 2000), the appellant did write, in a qualified fashion, of the need for tolerance for homosexuals. However, this does not change the overall thrust of the bulk of his published writings.
[38] I do not accept the appellant's submissions that speech cannot constitute discrimination as a matter of law, and that conduct must be directed against a particular individual in order to constitute discrimination. Sections 1 and 7(1) of the Human Rights Code, R.S.B.C. 1996, c. 211 make it abundantly clear that speech can constitute discrimination, whether or not it is directed against a particular individual:
Definitions
1. In this Code:
...
"discrimination" includes the conduct described in section 7, 8 (1) (a), 9 (a) or (b), 10 (1) (a), 11, 13 (1) (a) or (2), 14 (a) or (b) or 43;
Discriminatory publication
7(1) A person must not publish, issue or display, or cause to be published, issued or displayed, any statement, publication, notice, sign, symbol, emblem or other representation that
(a) indicates discrimination or an intention to discriminate against a person or a group or class of persons, or
(b) is likely to expose a person or group or class of persons to hatred or contempt
because of the race, colour, ancestry, place of origin, religion, marital status, family status, physical or mental disability, sex, sexual orientation or age of that person or that group or class of persons.
[39] In any event, the question to be determined by the Panel was not whether the appellant's published writings would attract liability as a human rights violation. The question before the Panel was whether the making and publication of those statements in the circumstances and context in which it was done fell below acceptable standards of professional conduct. Because non-discrimination is a core value of the educational system, a finding that those writings were of a discriminatory and derogatory nature can properly form part of the basis of a determination of conduct unbecoming.
[40] The conduct for which the appellant is being sanctioned occurred off-duty. However, where that off-duty conduct negatively impacts the school system or on the appellant's ability to carry out his professional and legal obligations as a teacher fully and fairly, he can properly be disciplined for that conduct. In Ross v. New Brunswick School District No. 15, [1996] 1 S.C.R. 825 at ¶44 it was noted that:
By their conduct, teachers as "medium" must be perceived to uphold the values, beliefs and knowledge sought to be transmitted by the school system. The conduct of a teacher is evaluated on the basis of his or her position, rather than whether the conduct occurs within the classroom or beyond. Teachers are seen by the community to be the medium for the educational message and because of the community position they occupy, they are not able to "choose which hat they will wear on what occasion" (see Re Cromer and British Columbia Teachers' Federation (1986), 29 D.L.R. (4th) 641 (B.C.C.A.) at p. 660); teachers do not necessarily check their teaching hats at the school yard gate and may be perceived to be wearing their teaching hats even off duty. Reyes affirms this point in her article, supra at p. 37:
The integrity of the education system also depends to a great extent upon the perceived integrity of teachers. It is to this extent that expression outside the classroom becomes relevant. While the activities of teachers outside the classroom do not seem to impact directly on their ability to teach, they may conflict with the values which the education system perpetuates.
[Emphasis in original]
[41] In this case no evidence was led of a "poisoned" school environment or specific complaints against the appellant as in Ross. However, I do not consider in Ross or in Trinity Western University v. British Columbia College of Teachers, [2001] 1 S.C.R. 772 ["TWU"], upon which the appellant relied, that the Supreme Court of Canada required the facts in future cases must always rise to the same level for a teacher to be disciplined. In TWU there was no evidence that TWU graduates had engaged in discriminatory speech or other discriminatory conduct after securing employment as public school teachers, unlike in the case at bar.
[42] The harm visited on the public school system by the appellant’s published writings is of two types: harm per se, and harm that could be inferred as the reasonable and probable consequences of that conduct [Ross, supra, at 859-60]. In my view, the appellant's published writings were harmful to the public school system per se, not only because of their discriminatory content, but also because he explicitly linked that content to his position as a teacher and counsellor.
[43] Beginning in August 1997 through to July 2000, the appellant in his writings to the local newspaper publicly identified himself on three separate occasions as a teacher and counsellor, and explicitly linked what were personal views to his professional standing as a teacher and counsellor:
"Some readers may be wondering why I am putting my professional reputation on the line over the homosexuality issue, and some are questioning my competence to counsel …
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."
[August 27, 1997, Quesnel Cariboo Observer]
"The majority of religions consider [homosexual] behaviour to be immoral, and many mental health professionals, including myself, believe homosexuality to be the result of abnormal psycho-sexual influences."
[July 1, 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.
Section 95(2) of the School Act states that teachers must 'inculcate the highest moral standards'."
[July 19, 2000, Quesnel Cariboo Observer]
[44] In those pieces he was no longer writing qua private citizen, but advancing his views qua secondary school teacher and counsellor. The fact that he made the explicit link between his professional status and those views early in his published writings would taint all of them in the eyes of students and the public.
[45] Even if he had not made that explicit link, the fact remains that the appellant identified himself by name in all of his published writings. Quesnel is a small community; the appellant was one of only four secondary school counsellors in Quesnel's two public secondary schools and was active in community service, so that he was well-known in the community before this matter arose. It would thus have been reasonable to assume that students and the public would identify the appellant and draw a link between those "off-duty" writings on the one hand and his teaching and school counselling position on the other.
[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.
[47] As for harms that could be inferred as reasonable and probable consequences of the appellant's off-duty conduct, these were, in the Hearing Panel's reasons: a loss of public confidence in the appellant as a teacher and in the public school system, a loss of respect by the students for the teacher involved, and other teachers generally, and controversy within the school and the community which disrupts the proper carrying on of the education system.
[48] It was reasonable for the Panel to draw these inferences. From the appellant's published writings and his publicly linking them to his teaching and school counselling position, a negative inference could reasonably be drawn as to the appellant's ability to be impartial as a teacher. It would be reasonable to expect that student and public confidence in the appellant and the public school system would be undermined. It would also be reasonable to anticipate that homosexual students would generally be reluctant to approach him for guidance counselling, which would impair his ability to fully carry out his professional duties in fact.
[49] As well, there was some evidence of controversy in the community stemming from the appellant's published writings, such as letters to the local newspaper branding his views as intolerant and discriminatory, and letters from the Presidents of the Quesnel School Counsellors' Association and Quesnel District Teachers' Association disassociating themselves from the appellant's views.
[50] The harm, whether per se or inferred, to the school system, the teaching profession, and student and public confidence in them, resulting from the appellant's writings published off-duty warrant a finding that his conduct was unbecoming a BCCT member.
[51] I do not accept the appellant's submission that the Hearing Panel should not have found the appellant's conduct unbecoming because it is markedly different, and thus less serious, than in disciplinary proceedings involving lawyers and teachers' sexually inappropriate behaviour or criminal conduct, was held to be unbecoming of their professions.
[52] There is no authority that only sexual or criminal conduct can be found unbecoming of a profession, or that conduct of a publicly discriminatory nature similar to the appellant's is necessarily less serious. Discrimination is a serious issue in public schools and in the larger society. Given the notoriety of the appellant and his published writings in the community, a failure by the Hearing Panel to find his conduct unbecoming would amount to a public condonation of discrimination by a member of the teaching profession, done ostensibly in his professional capacity.
[53] I find that absent Charter issues, the Hearing Panel's finding that the appellant is guilty of conduct unbecoming a BCCT member is reasonable, and should not be disturbed by this Court.
3. The Penalty Decision by the Council of the BCCT
[54] The absence of a privative clause and the existence of a broad statutory right of appeal under s. 40 of the Teaching Profession Act, R.S.B.C. 1996, c. 449 (reproduced supra) would militate against deference. However, the other three pragmatic and functional factors call for considerable deference by the Court.
[55] Here, there is reason to expect that the BCCT Council, and the Hearing Panel of the Disciplinary Committee that recommended the penalty adopted by the Council, had superior expertise relative to the courts. Applying the reasoning in Ryan, supra, at ¶31-34, the Panel and the Council had greater expertise than courts in the choice of sanction for breaches of professional standards. The Panel and the majority of Council members were subject to the same standards of professional practice as the teachers who came before them. Practicing teachers are uniquely positioned to identify conduct unbecoming a teacher and to appreciate its severity.
[56] In addition, the Discipline Committee and the Council have relative expertise generated by repeated application of the objectives of professional regulation set out in the Teaching Profession Act to specific cases in which conduct unbecoming is alleged. In each case, the Committee and the Council will have been called on to interpret those objectives in the factual context. This would tend to generate a relatively superior capacity to draw inferences from facts related to professional practice and also to assess the frequency and level of threat to the public and the teaching profession posed by certain forms of behaviour. As well, the Committee and the Council's expertise are in a specialized area of teaching in public schools and outside the general knowledge of most. In any case, owing to their composition and familiarity with the particular issue of imposing a sanction for conduct unbecoming in a variety of settings, the Committee and the Council arguably have more expertise than courts on the appropriate sanction to apply.
[57] Turning to the third pragmatic and functional factor, the purpose of the Teaching Profession Act and the disciplinary process also suggest considerable deference. As noted earlier, pursuant to s. 4 of the Act the object of the BCCT is self-regulation of the teaching profession with regard to protecting the public interest, including setting and enforcement of standards of professional practice. In any disciplinary proceeding, the BCCT Council has discretion in the sanctions it may apply to meet the objectives of the Act:
Action by council
35 (1) If an adverse determination respecting a member is made under section 34(b), the council may, by a resolution passed by the votes of a majority of the council members present at a duly constituted meeting of the council,
(a) reprimand the member,
(b) suspend the membership and certificate of qualification of the member for a fixed or indeterminate period, or
(c) terminate the membership of the member in the college and cancel his or her certificate of qualification.
[58] In Dr. Q, supra, at ¶31, the Supreme Court of Canada confirmed earlier jurisprudence holding that:
A statutory purpose that requires a tribunal to select from a range of remedial choices or administrative responses, is concerned with the protection of the public, engages policy issues, or involves the balancing of multiple sets of interests or considerations will demand greater deference from a reviewing court.
Sections 4 and 35 of the Act clearly direct the BCCT Council to undertake a balancing exercise and require it to choose among a range of remedial choices. Taken as a whole, the legislative purpose of the Act suggests a higher degree of deference to penalty decisions of the Council than the standard of correctness.
[59] Turning to the final pragmatic and functional factor, the nature of the question here is one of mixed fact and law since it involves the application of general principles of the Act to the specific circumstances of this case. The Council’s decision to largely adopt the Panel's recommendations on the penalty is intricately bound to factual findings and inferences about the appellant's unbecoming conduct, as well as considerations of the interests of the public and the teaching profession. This would again suggest a higher degree of deference towards the Council's penalty decision.
[60] Balancing the four pragmatic and functional factors, the appropriate standard of review for the penalty decision, absent Charter issues, is reasonableness simpliciter.
Application of the standard of review
[61] I find upon the mandated, somewhat probing examination of the Panel's reasons and recommendations, adopted and quoted by the Council in its written decision, and the Council's own additional reasons, the Council decision emerges as a reasonable one.
[62] In deciding on the penalty, the Council considered the appellant's professional background and circumstances, the nature and gravity of the appellant's conduct, the need for protection of the public and the integrity of the profession, deterrence, and the presence of aggravating/mitigating circumstances. There is no evidence to support the appellant's submission that the Council did not properly consider Mr. Kempling's background and circumstances.
[63] With regard to the appellant's circumstances, the Panel and the Council took into account the appellant’s long and unblemished teaching career, and his notable record of community service, and support shown in numerous letters of reference by professional and community members. The Panel and the Council did not specifically refer to the fact that he had no previous record of disciplinary offences before the BCCT, but this is to be reasonably inferred by their noting that his career was "unblemished".
[64] I do not accept that the Council erred in its decision on the penalty on grounds there is no issue of public protection and because the Council failed to ensure that the penalty imposed is within the range imposed in similar cases.
[65] There is a public protection issue here. The appellant does not appreciate that harm has been done to the general student body, homosexual students, the school system, and the teaching profession by publishing his discriminatory writings qua public school teacher and counsellor. The fact that there was no evidence of specific complainants is not determinative. Indeed, one reason that no one came forward with a complaint could be because the group that his public statements were targeted against is vulnerable, generally kept invisible and less likely to come forward with complaints than members of the general population. Realistically, most homosexual students would be most reticent to challenge a teacher and counsellor who is otherwise held in high regard, while placing themselves at risk in disclosing their sexual orientation to the public.
[66] As to the range imposed in similar cases, I was referred to no truly comparable cases other than Ross. Though the appellant seeks to rely on Ross for the issue of penalty, it is not of assistance as the part of the penalty struck down by the Supreme Court of Canada was termination for any future publication of anti-Jewish statements. The rest of the penalty in Ross, including a leave of absence without pay for eighteen months and a ban from occupying teaching positions with the school board, was upheld. The penalty imposed here is not nearly as drastic.
[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. Absent a finding that the appellant's Charter rights were infringed and that such infringement is not justified under s. 1 of the Charter, the penalty imposed by the BCCT Council should not be disturbed.
Raising Charter Claims Only on Appeal – Potential Prejudice?
[69] The appellant did not allege infringement of his rights under ss. 2(a), 2(b), 7 and 15 of the Canadian Charter of Rights and Freedoms until he launched an appeal against the finding of conduct unbecoming a BCCT member. The respondent argues that entertaining his Charter claims at this stage of the proceedings would be prejudicial to the respondent.
[70] While it would have been ideal for the appellant to have raised Charter issues before the decision-makers below prior to the rendering of their decisions, there is no undue prejudice to the respondent here for the appellant to raise Charter claims only on appeal. This is because before any of the decisions were issued, it would have been difficult to ascertain whether any Charter rights were infringed by those decisions. Since there is no undue prejudice, there is no bar to the Court adjudicating the appellant's Charter claims.
[71] The Hearing Panel in its reasons for the finding of conduct unbecoming a BCCT member concluded that infringement of the appellant's freedom of expression occasioned by disciplinary action against him would be justified. The Panel and the BCCT Council did not appear to consider other Charter rights in any of the decisions – this was likely due to the fact that the appellant only raised Charter issues on appeal.
[72] As noted earlier, the standard of review for decisions by administrative bodies on Charter issues is correctness. As such, the Court is entitled to undertake its own analysis of those issues to decide if the result is correct (Ryan, supra, at ¶50), in this case determining whether the appellant's ss. 2(a), 2(b), 7 and 15 rights have been infringed.
Have the Appellant's Charter Rights been Infringed?
[73] Using the test for protected expression in Irwin Toy Ltd. v. Quebec (A.G.), [1989] 1 S.C.R. 927, the expression of the appellant’s views on homosexuality is protected under s. 2(b). The content conveys meaning (that homosexuality is abnormal, immoral, and the like), and the form of expression, in published writings is non-violent. What s. 2(b) does not protect is the appellant’s right to express or to purport to express strictly personally-held, discriminatory views with the authority of or in the capacity of a public school teacher/counsellor.
[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.
[76] Counsel for the appellant argues that the conduct for which the appellant is being sanctioned fell within the scope of s. 2(b) protection. He relies on Morin v. Prince Edward Island Regional Administrative Unit No. 3 School Board (2002), 213 D.L.R. (4th) 17 (S.C. – A.D.) ["Morin"]. In Morin, a teacher was prohibited by the school principal for showing a film on religious fundamentalism to his Grade 9 class. The court in that case held that this was an infringement on the teacher's s. 2(b) rights.
[77] In Morin, the prohibition was on the showing of the film itself to the students. Here, the sanction by the BCCT goes really to the appellant's wrongful public linking of his professional position to the off-duty expression of personally-held discriminatory views in order to lend credibility to those views, as well as addressing the resulting harm to the school system. The evidence and record do not show that any of the administrative decision-makers attempted to restrain or burden the expression of anti-homosexual views per se.
[78] As a result, there has been no infringement of the appellant's rights under s. 2(b) of the Charter.
[79] For similar reasons, there has also been no infringement of the appellant's s. 2(a) rights. The publication of views informed by sincerely held religious beliefs is protected by s. 2(a), and the Court may not question the validity of those views (R. v. Jones, [1986] 2 S.C.R. 284).
[80] The Supreme Court of Canada has consistently refrained from formulating internal limits to the scope of freedom of religion; see R. v. Jones, supra, R. v. Edwards Books and Arts Ltd., [1986] 2 S.C.R. 713, and B.(R.) v. Children’s Aid Society of Metropolitan Toronto, [1995] 1 S.C.R. 315. While the Supreme Court of Canada has taken a large and liberal approach to interpreting the scope of s. 2(a), as it has with other Charter rights, in none of these cases has the scope of s. 2(a) been extended beyond its exercise by citizens in their personal capacity. In other words, there is no authority for the proposition that s. 2(a) guarantees freedom to state or manifest one's strictly personal beliefs with the purported authority or capacity of one's professional status.
[81] Although they deal with s. 2(b) rather than 2(a), because of the similarity in the approaches taken by the Supreme Court of Canada to interpreting the scope of the rights protected therein, Morin and Walker are instructive for the purposes of comparison and contrast to this case. In Morin, though religion was part of the content of the expression, there was no attempt to link the validity of any of that content to the teacher's professional status and thus lend credibility to any particular religious view, unlike in this case.
[82] In Walker, the court made it very clear that the Charter does not protect the right to speak in any given capacity, other than one’s own personal capacity, when one is not authorized to do so. As the appellant was espousing views informed in part by his private religious beliefs while off-duty, surely he could not have been authorized to speak qua public school teacher and counsellor in that context, yet he purported to do so anyway. Logically, it would seem that s. 2(a) does not go so far as to protect freedom of religious expression in a capacity that one has no proper authority to speak in. The conduct for which the appellant is being sanctioned is not protected by s. 2(a) and therefore there is no infringement of his s. 2(a) rights.
[83] The crux of appellant's s. 7 argument is stated by his counsel as follows: "he can be silenced or lose his chosen profession". As such, the appellant has no basis for making a s. 7 claim – Lamer J. held in Reference re: ss. 193 and 195.1(1)(c) of the Criminal Code (Man.), [1990] 1 S.C.R. 1123 (also known as the Prostitution Reference) at 1179:
The rights under s. 7 do not extend to the right to exercise [one's] chosen profession… I reach this conclusion based on a reading of the cases decided by this and other courts dealing with s. 7 and "economic liberty", and on a reading of the text of the Charter.
Nor can it be accepted that the right to practice as a teacher rises to the level of a "fundamental personal choice" going to the root of a person's dignity as contemplated in Blencoe v. British Columbia (Human Rights Commission), [2000] 2 S.C.R. 307 at ¶49-54 (e.g. abortion, right to obtain medical treatment, choosing where to establish one's home, or whether to testify in court). The s. 7 claim is dismissed.
[84] The appellant submits that his s. 15 rights have been ignored; he claims social and political disadvantage in that by virtue of the decision to discipline him and the penalty imposed, he no longer enjoys the same liberty interests as the general population because of the fact that he is a public school teacher. However, the respondent has jurisdiction to enforce its standards and take disciplinary action against its members only. Moreover, it is entirely appropriate that the teaching profession, like any profession, be held to more stringent standards of conduct than the lay public. As such, the appropriate comparator group for a s. 15 analysis is not, as suggested by counsel, the general public, but other public school teachers who are also BCCT members and have been or are being disciplined for similar conduct. The appellant has neither alleged, nor provided any evidence of, differential treatment when compared to this set of teachers, and so his s. 15 claim must be dismissed.
[85] If the appellant's Charter rights were indeed infringed, such infringement can only be saved if it is justified under s. 1 of the Charter. Section 1 provides as follows:
The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.
[86] It was not argued that the penalty was not prescribed by law. In order for the penalty to be reasonably and demonstrably justified in a free and democratic society, it must meet the test set out in R. v. Oakes, [1986] 1 S.C.R. 103. That is, in imposing the penalty, 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).
[87] The Oakes test should be applied flexibly so as to achieve a proper balance between individual rights and community needs; to do so, close attention must be paid to contextual factors (Ross, supra, at ¶78). Consideration of contextual factors assists in determining the degree of deference owed to governmental action by the court in applying the Oakes test in the particular circumstances of the case.
[88] One important contextual factor is that the disciplinary action against the appellant was aimed at protecting a vulnerable group – children. The remarks of the Supreme Court of Canada in Ross at ¶82-83 are particularly apposite:
Young children are especially vulnerable to the messages conveyed by their teachers. They are less likely to make an intellectual distinction between comments a teacher makes in the school and those the teacher makes outside the school. They are therefore, more likely to feel threatened and isolated by a teacher who makes comments that denigrate personal characteristics of a group to which they belong. Furthermore, they are unlikely to distinguish between falsehoods and truth and more likely to accept derogatory views espoused by a teacher. The importance of ensuring an equal and discrimination free educational environment, and the perception of fairness and tolerance in the classroom are paramount in the education of young children. This helps foster self-respect and acceptance by others.
It is this context that must be invoked when balancing the [teacher's] freedom to make discriminatory statements against the right of the children… "to be educated in a school system that is free from bias, prejudice and intolerance", a right that is… entrenched in s. 15 of the Charter.
[89] That is a contextual factor which would indicate that deference to the BCCT and therefore a less stringent application of the Oakes test may be warranted.
[90] Another contextual factor militating in favour of a less stringent application of the Oakes test is where the state action is directed at protecting an historically disadvantaged group or at ameliorating the disadvantage suffered by that group. That contextual factor is clearly at play here.
[91] It is not disputed that discrimination against homosexuals is a serious problem in public schools and the larger society. The appellant himself acknowledged that there is a problem in public schools of harassment of students presumed to be homosexual, with sometimes fatal consequences. The appellant also acknowledged that harassment in the larger community has caused some homosexuals to leave Quesnel. In taking disciplinary action against the appellant, the BCCT was attempting in part to remedy the discrimination against homosexuals manifest in public schools to which the appellant contributed, and as stated in Ross, supra, at ¶86, the appellant must not be permitted to use the exercise of his Charter rights to roll back advances made against discrimination.
[92] It is true that as a statutorily appointed body whose powers are delegated to it by the Legislature and whose expertise is confined to matters of teacher education, training, qualification and professional conduct, the BCCT neither has a representative mandate from the people nor is particularly qualified to adjudicate on Charter and human rights issues. As such, this would militate against deference to the BCCT and in favour of a more stringent application of the Oakes test.
[93] However, it should be remembered that sanctioning the appellant is about enforcing professional standards of conduct among public school teachers rather than imposing liability for conduct that would constitute a human rights violation. As the statutory body empowered to regulate the teaching profession in the public interest, the BCCT has a duty to ensure that the fulfilment of public school teaching functions is undertaken in a manner that does not undermine public trust and confidence. The standard of behaviour required of a teacher is greater than the minimum standard otherwise tolerated of individual members of the lay public, given the responsibilities which a teacher must fulfil and the expectations which the community holds for the educational system (Ross, supra, at ¶84).
[94] That is another contextual factor in favour of a less stringent application of the Oakes test. The disciplinary action taken by the BCCT was in fulfilment of its duty to the public, because the actions for which the appellant is being sanctioned fell far below professional standards of conduct.
[95] Finally, the specific nature of the Charter rights allegedly infringed in the circumstances of this case must be examined. In this case, the appellant's discriminatory expression is of low value, being in conflict with the core values behind the s. 2(b) guarantee of freedom of expression. Those values are the search for truth, the protection of individual autonomy and self-development, and the promotion of public participation in social and political decision-making (Irwin Toy, supra, at 976).
[96] Discriminatory speech is incompatible with the search for truth. In addition, the appellant's publicly discriminatory writings undermine the ability of members of the targeted group, homosexuals, to attain individual self-fulfilment. This is particularly true as the appellant publicly declares, with the ostensible authority or capacity of a teacher and secondary school counsellor, that which defines homosexuals as a group is abnormal, immoral or perverted.
[97] As well, discriminatory speech stifles the speech and societal participation of others, in particular members of the targeted group. This is especially true in the case at bar, as the appellant used his status as a teacher and secondary school counsellor to lend credibility to his discriminatory views. In light of that fact, and given the small size of the community and the appellant's considerable influence within it, particularly with public school officials and local politicians, homosexual students would likely be deterred from openly espousing opposing views or being public about their sexual orientation.
[98] The low value of the appellant's expression is a factor militating in favour of a less stringent application of the Oakes test. The fact that the content of the expression is informed by sincerely held religious beliefs and therefore triggers s. 2(a) does not militate in favour of less deference toward the administrative decision-makers below, because freedom of religion is not absolute and must be balanced with other Charter rights and values (TWU, supra, at ¶29-30). Section 2(a) rights, particularly where the claimant holds discriminatory beliefs as in the case at bar, cannot be used to ignore the rights and legitimate interests of others. As for the appellant's s. 7 and 15 rights, there is no need to consider these under the Oakes test because as noted earlier there was no basis for him to claim infringement of those rights in the circumstances.
[99] In light of all of the contextual factors at play in this case, I find considerable deference should be shown to the BCCT and a less stringent application of the Oakes test is warranted.
Pressing and substantial objective
[100] The BCCT had several pressing and substantial objectives that would justify overriding the appellant's exercise of his Charter rights in this case. These were: 1. to ensure an equal, tolerant, discrimination-free school environment; 2. to protect students, in particular gay and lesbian students, from the appellant's anti-homosexual discrimination; and 3. to restore and uphold the integrity of, and student and public confidence in, the public school system and the teaching profession as non-discriminatory entities.
[101] In order to show a rational connection between the BCCT's objectives and the disciplinary action taken against the appellant, the BCCT must demonstrate that there is a rational connection between the appellant's published writings and the ensuing harm to students, the school system and the teaching profession. As for the standard of proof to which the BCCT is to be held, the Supreme Court of Canada has repeatedly stated that scientific proof based on concrete evidence is not required (RJR-MacDonald Inc. v. Canada (A.G.), [1995] 3 S.C.R. 199 at ¶82 and 137, Ross, supra, at ¶101, R. v. Sharpe, [2001] 1 S.C.R. 45 at ¶85). Instead, "a reasoned apprehension of harm" is sufficient (Sharpe, supra.; R. v. Butler, [1992] 1 S.C.R. 452 at 504).
[102] As indicated earlier, the publication of the appellant's writings was harmful per se, and further harm resulting from their publication could be reasonably apprehended. Because of their discriminatory content, the appellant's public writings were harmful per se to the student body at large, homosexual students, the public school system and the teaching profession. Those writings were also harmful per se because the appellant's public linking of that content to his professional position called into question the impartiality of the public school system and teaching profession.
[103] As well, as stated earlier, it could be reasonably inferred that the appellant's writings undermined student and public confidence in the public school system and teaching profession. The appellant's ability to be impartial as a teacher was impaired. Homosexual students would as a result of the writings be reluctant to approach him for guidance or counselling. The writings generated controversy in the community that was disruptive to the proper carrying on of the educational system.
[104] As such, there are grounds for a reasoned apprehension that the appellant's public writings engendered harm to students, the public school system and the teaching profession.
[105] There is a rational connection between the BCCT's objectives and the means chosen to achieve those objectives. Sanctioning the appellant for publishing discriminatory statements and for publicly linking them to his professional status as teacher, is a statement that the teaching profession does not condone discrimination. It tells students and the public that what the appellant did was discriminatory and wrong, and helps to repair the damage done to the integrity of, and student and public confidence in, public schools and the teaching profession as non-discriminatory entities.
[106] In deciding on a means that would minimally impair the appellant’s Charter rights, the BCCT did not have to choose the least restrictive means of achieving its objectives. The means chosen need only fall within a range of reasonable choices and be reasonably tailored to the objectives (Sharpe, supra, at ¶96; RJR-MacDonald, supra, at ¶160). However, the means must impair Charter rights no more than reasonably necessary (Sharpe, supra), and may not pass the minimal impairment test if the state actor fails to explain why a significantly less intrusive and equally effective measure was not chosen (RJR-MacDonald, supra).
[107] The means chosen by the BCCT fell within a range of reasonable alternatives, was reasonably tailored to the underlying objectives, and would impair the appellant's Charter rights no more than reasonably necessary. The appellant is to have his teaching certificate suspended for one month. He is not being terminated or permanently disqualified from teaching – he can still teach after serving his penalty, and given the high regard in which he is held by some public school administrators in Quesnel in light of the letters of reference they wrote on his behalf, he should have no difficulty maintaining employment. Publication of the appellant's name and incident description by the BCCT, especially at this point, will not do any additional harm, given the notoriety of this case already in Quesnel and beyond. The public will be aware the actions and conduct in question were not ignored.
[108] The means chosen by the BCCT are even more reasonable when compared to that part of the sanction in Ross found by the Supreme Court of Canada to withstand constitutional scrutiny. Unlike the appellant, Malcolm Ross was placed immediately on a leave of absence without pay for a period of eighteen months, and was permanently banned from working as a teacher for the school board. That is a much more drastic measure than that chosen by the BCCT.
[109] Anything less restrictive than the sanction chosen by the BCCT (e.g. by issuing a reprimand only or no penalty at all) would not be an effective measure and might reasonably give rise to the perception that both the school system and the teaching profession condone the appellant's publicly discriminatory conduct, or think little of it. This community feeling may be heightened by the failure of the school's principal and vice-principals as well as the school district to sanction Mr. Kempling.
[110] The intervener agreed that the appellant was indeed guilty of conduct unbecoming a BCCT member, although it submitted that the appellant should be sanctioned for his writings to the local newspaper only. The intervener pointed out that no evidence was led that the appellant's two essays were in fact distributed to anyone other than the BCCT. It was submitted that the sanction might thus be overbroad, producing a chilling effect on written expression that may not have actually been distributed.
[111] I appreciate the intervener's concern, but do not feel the sanction exceeds the public distribution of materials at issue. The appellant's writings to the local newspaper were the only ones authored by him that the Hearing Panel relied upon for its finding of conduct unbecoming a BCCT member. The Panel made no mention of the two essays, other than to say that they were submitted to the Panel, until the penalty stage. Still, for the essays to have formed part of the Panel and Council decisions at the penalty stage, was not unreasonable and does not offend the minimal impairment test.
[112] Although no evidence was led as to the actual distribution of the two essays, the fact remains that they were intended for distribution and apparently intended to be available to members of the public. The essays are not analogously private in nature, for example, to the private expression exempted by the Supreme Court of Canada from the application of the child pornography law in Sharpe, where the expressive material was privately held and intended exclusively for personal use. As such there is no chilling effect on private expression.
[113] In overview, I find the sanction imposed by the BCCT on the appellant minimally impairs his Charter rights.
Proportionality in the effects of the sanction
[114] The deleterious effects of the sanction imposed by the BCCT Council are limited to the extent necessary for its objectives. The appellant is free to exercise his freedoms of religion and expression in a manner that is unrestricted by the penalty, should he choose not to remain a BCCT member and not teach in public schools in British Columbia. If he chooses to remain a BCCT member, he is still free to exercise those freedoms, so long as he does not publicly do so in a manner that is discriminatory and would allow students or the public to reasonably perceive that he is doing so with the authority or in the capacity of a public school teacher or counsellor.
[115] The salutary effects of the sanction are that the teaching profession publicly reaffirms that discrimination is not condoned in public schools. Students and the community are told that what the appellant did was wrong, and the damage done to the integrity of, and student and public confidence in, public schools and the teaching profession as non-discriminatory entities is remedied. In my view, the objectives and salutary effects of the penalty outweigh its deleterious effects. There is proportionality between the objectives and the effects of the means chosen to achieve those objectives.
Conclusion on s. 1 of the Charter
[116] If the appellant's Charter rights have been infringed, the infringement is saved by s. 1 of the Charter.
[117] The finding by the BCCT Disciplinary Committee Hearing Panel that the appellant is guilty of conduct unbecoming a BCCT member is reasonable, and is affirmed by this Court. The penalty imposed by the BCCT Council upon the appellant for such conduct is also reasonable, and is hereby affirmed.
[118] I find there is no infringement of the appellant's Charter rights and if any such infringement did occur in the decisions challenged by the appellant, they would be justified under s. 1 of the Charter.
[119] The appeal is dismissed, with costs to the respondent.
“R.R. Holmes, J.”
The Honourable Mr. Justice R.R. Holmes