...
[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 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.
...
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.
...
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.
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.
The opinion then makes a big deal of the point that Kempling is being properly
punished precisely for his
letters to newspapers, not for anything else he wrote or for any kind of conduct:
[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.
Then the judge says that under Canadian law, mere speech can constitute
discrimination punishable by the government, which, alas, is true. (I hope I don't get
extradited.)
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.
...
[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.
[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.
Note the use of "impact" as a verb-- on style as well as substance this judge is not of
the highest caliber.
Next come two questions: (1) whether Mr. Kempling's views are so immoral as to bring disrepute to the teaching profession, and (2) whether it mattered that he identified himself as a teacher in his letters.
[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.
The decision is somewhat confused. In places, it seems to say that Mr. Kempling was
wrong to reveal that he was a schoolteacher, but in section (45) it clearly says that
this is irrelevant, because people would recognize him by his name anyway.
[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.
A shocking claim: that in British Columbia, the public would lose confidence in
the school system if it tolerated teachers who think homosexuality is immoral. The
implication is that people would start pulling their children out of the public schools
and sending them to private schools where homosexuality would be encouraged by all the
teachers, rather than just by 99% of them.
[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.
I would not be surprised if homosexual students would be reluctant to talk about their
personal lives with Mr. Kempling. I would not be surprised if Christian, Jewish,
Moslem, or conservative students would be reluctant to talk about their personal lives
or political views with any of the other counsellors in the school. We see who the B.C.
government values more.
...
[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.
...
[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.
...
style='font-size:10.0pt'>[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.
[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.
This is an interesting position. By implication the judge is saying that it is
legal and goods for the professional association to exclude anyone who is an open
Christian or a conservative from teaching in a public school. This would be true whether
they actually express their views or not, because it is reasonable to deduce that if
someone is a Christian or a conservative, he opposes homosexuality. Indeed, I take it
that if the association decided to expel all teachers who were not members of the NDP,
on the grounds that it is immoral not to belong to the NDP, Justice Holmes would go
along with it. He wouldn't require all Canadians to belong to the NDP, but it is
reasonable and good that teachers "be held to more stringent standards of conduct than
the
lay public."
And now Justice Holmes waxes philosophic.
[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).
Speaking out against homosexuality "is of low value", so it is not protected.
Protecting discussion of that subject would obstruct "the search for truth". Allowing
someone to speak his views on it would violate "protection of individual autonomy and
self-development," and allowing him to participate in public debate would block "the
promotion of public
participation in social and political decision-making."
How can anyone think it is *conservative* judges that threaten civil liberties?
The judge does go on to explain his astounding claims.
[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.
[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.
Thus, we must suspend a schoolteacher who espouses a view opposing that of his
professional association, court system, government, and various other bosses, because
"homosexual students
would likely be deterred from openly espousing opposing views". To avoid chilling
speech supporting the views of those in power, we must make it illegal for those out
of power to speak at all.
[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.
In other words: 1. Tolerance and equality require complete suppression of the minority
view. 2. Students must be protected from conservative views. 3. The integrity of the
school system requires the promotion of homosexuality, and otherwise the public will
lose confidence in it.
[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.
That's what he said: "there is no chilling effect on private expression." He's just
said its OK to deprive a teacher of a month's pay without a trial, for writing letters
to the newspaper espousing a moderate view. I guess you can't chill an ice cube.
It's a nice touch to point out that conservative political advocacy doesn't deserve
as much protection as child pornography. It is not that he says conservative political
advocacy is worse; it's just that, like child pornography, it only OK if it's kept
private. In the privacy of your home, you can do as much political advocacy as you
want.
[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.
[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.
Such a salutary effect! Do you have more confidence in Canadian public schools now?
[ http://php.indiana.edu/~erasmuse/w/04.02.07c.htm . Erasmusen@yahoo.com. ]
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