Canada: Discipline for Off-Duty Conduct

By Caroline Seyffert, Student-at-Law

In a decision released on June 15, 2005, in the case of Kempling v British Columbia College of Teachers, the British Columbia Court of Appeal upheld a decision made by the British Columbia College of Teachers ("BCCT") disciplining a public school teacher for statements that were published in local newspapers on homosexuality.

The Court of Appeal held that while the disciplinary actions taken by the BCCT infringed Mr. Kempling’s right to freedom of expression under the Charter of Rights and Freedoms, those limits were reasonable and justified in a free and democratic society. This case has expanded a teacher’s liability for voicing his or her opinions outside the course of their duties as a teacher.

Christopher Kempling taught at one of four secondary schools in the Quesnel School District. He is both a teacher and clinical counsellor of long standing.

In the spring of 2001, Mr. Kempling was cited for professional misconduct arising out of an article and letters to the editor he wrote expressing his views on homosexuality, which were published in a local newspaper. In the article and letters, Mr. Kempling associated homosexuals with immorality, abnormality, perversion and promiscuity. A Hearing Panel found he was guilty of conduct unbecoming a member of the BCCT. Mr. Kempling’s teaching certificate was suspended for one month. His writings were found to be discriminatory and that Mr. Kempling failed to accommodate core values of the education system. It was decided that off-the-job conduct may amount to misconduct if there was any of the following: 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, or if the conduct may result in controversy within the school and within the community which disrupts the proper carrying on of the education system.

Mr. Kempling appealed this decision to the British Columbia Superior Court which upheld the Panel’s decision. Mr. Kempling appealed to the British Columbia Court of Appeal arguing that:

1. No deference to the BCCT decision should have been given since the BCCT is not an expert nor is it well positioned to adjudicate matters which engage the Charter or human rights issues.
2. Mr. Kempling’s rights under the Charter of Rights and Freedoms were infringed.

Justice Lowry for the Court of Appeal held that while the BCCT does not qualify as an expert to interpret the scope of human rights, the Panel does have authority to determine if a teacher’s conduct is unbecoming a member of the BCCT. The Panel has jurisdiction to decide whether Mr. Kempling’s published writings were discriminatory; and whether they caused any harm.

First, the Court of Appeal recognized that branding statements as unacceptably discriminatory may threaten to undermine a vibrant notion of pluralism which is central to a functioning democracy simply because they are critical of a person’s way of life or denounce a particular lifestyle. However, relying on the Supreme Court of Canada in the decision Ross v New Brunswick School District No. 15, the Court found that if statements are made in disregard of an individual’s "inherent dignity", meaning they are based "not on their actual individual capacities, but on stereotypical characteristics ascribed to them because they are attributed to the group of which the individuals are a member", then they will be considered discriminatory. In light of that definition, the Court of Appeal held that the Panel was correct in finding that the statements were discriminatory since they were made in a manner that does not value each individual’s inherent dignity.

Second, Mr. Kempling argued, relying on prior jurisprudence, that without direct evidence of a "poisoned school environment" the BCCT had no right to regulate his off-duty conduct.

Justice Lowry dispelled this notion and held that an inference of harm is sufficient to sustain a finding of conduct unbecoming. Proof that he had actually discriminated against a particular student or evidence of a poisoned school environment was not required to prove that the school system had sustained harm. Mr. Kempling’s statements were found to damage the integrity of the school system as a whole. They undermined the core value of non-discrimination by denying homosexual students an educational environment accepting of them.

Accordingly, the Court ruled that, subject only to the Charter considerations Mr. Kempling raised, the Panel’s finding of conduct unbecoming was reasonable and was properly upheld.

The trial judge held that Mr. Kempling’s freedom of expression was not infringed since the BCCT did not restrict Mr. Kempling’s ability to express himself on the issue of homosexuality, but rather restricted the capacity in which he could express his views, as a teacher and counsellor in the public school system.

The Court of Appeal disagreed with the reasoning of the trial judge, maintaining that freedom of expression has always been broadly and liberally interpreted by the Supreme Court of Canada. Justice Lowry found that the BCCT’s attempt to restrict Mr. Kempling’s ability to express his views violated his right to freedom of expression. He stated:

Subsection 2(b) of the Charter protects a person’s right to freedom of expression and section 1 guarantees these rights but only subject to reasonable limits that can be justified in a free and democratic society.

The Court of Appeal reviewed whether the BCCT’s limits on Mr. Kempling’s freedom of expression may be justified by balancing; (a) Mr. Kempling’s right to express his views concerning sexual morality; with (b) the rights of homosexual students and students in general to enjoy a school environment that is free from discrimination.

Political speech is considered to be one of the most protected forms of expression and a core value of our society. The Court of Appeal ruled that a portion of Mr. Kempling’s writing had a political element to them that formed a reasoned discourse and were near the core of valued expression. Conversely, not all of his writings were of this nature, and some portions crossed the line of reasoned debate into discriminatory statements by relying on stereotypical notions of homosexuality, which expressed a willingness to judge individuals on the basis of these notions. In doing so, he ignored the inherent dignity of the individual and accordingly, Mr. Kempling’s published writings taken as a whole, were held not to be deserving of a high level of constitutional protection.

The Court of Appeal held that direct evidence that particular students no longer felt welcome in the school system, or that homosexual students refused to go to Mr. Kempling for counselling was not required to establish harm had been caused. Mr. Kempling’s statements were found to be inherently harmful because they may present an obstacle for homosexual students in accessing a discrimination-free education environment and in doing so have damaged the integrity of the school system as a whole.

The Court ruled that Mr. Kempling’s statements undermined the core value of non-discrimination by denying homosexual students an educational environment accepting of them.

The Court concluded that there was sufficient evidence to support a finding that Mr. Kempling’s off-duty statements caused harm to the integrity of the school system. It stated that subject only to the Charter considerations that Mr. Kempling raises, the Panel’s finding of conduct unbecoming was reasonable and properly upheld.

The Court of Appeal found that the BCCT had many pressing and substantial objectives for disciplining Mr. Kempling. These objectives included ensuring a tolerant and discrimination-free environment, as well as restoring and upholding the integrity of the school system. As the harm at issue arose as a direct and necessary result of Kempling’s writings, the rational connection between the impugned activity and the harm caused was found to be self-evident.

The Court of Appeal ruled that the disciplinary action taken by the BCCT in this case was reasonable and demonstrably justified under section 1 of the Charter. This case appears to expand teachers’ liability for voicing their opinions in public outside their role as teachers. While political speech is a highly protected form of expression, if a teacher makes stereotypical comments and judges a group or individual in a way that takes away from that group or individual’s inherent dignity, that form of speech is less likely to be near the core of valued expression. Furthermore, if those comments are made in contemplation of the teachers’ role as teacher or counsellor, the teacher may be disciplined in order to safeguard the school’s objectives. Even if Mr. Kempling had not linked those discriminatory comments to his role as a teacher, Justice Lowry states this would have made little difference:

The courts have held that the reasons why off-duty 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 for the teacher involved and there may be controversy within the school and within the community which disrupts the proper carrying on of the education system.

By virtue of being a teacher and a role model which carries with it a duty to promote the values of the education system, Canadian courts are willing to apply limits to a teacher’s freedom of expression on or off-duty in favour of educating children in accordance with the values of a tolerant and discriminationfree democratic society.

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