Promoting a Flourishing Society

LexView 58.0 - What is the Distinction Between Reasoned Debate and Discriminatory Rhetoric?

From the Archived "LexView" Series

June 26, 2006

Do teachers, and other citizens holding professional qualifications, have the right to freely express themselves on controversial issues without risking discipline by their professional bodies? Will freedom of religion and freedom of expression protect these professional people? Is there "harm" to public schools when a teacher uses discriminatory language in the public square, even if there is no evidence of a poisoned school environment?

Kempling v. British Columbia College of Teachers
2005 BCCA 327
British Columbia Court of Appeal
Date of Decision: June 13, 2005
Date of Issue: June 26, 2006

In this issue:

  1. Key Terms
  2. Summary of Facts
  3. Significant Issues
  4. Decision and the Court's Reasons
  5. LexView Commentary

Key Terms:

Standard of review; conduct unbecoming; discrimination; off-duty conduct; harm; poisoned school environment; public schools; Charter of Rights and Freedoms; section 2(a); freedom of religion; section 2(b); freedom of expression; section 1; demonstrable justification

Summary of Facts:

Chris Kempling is a public school teacher and councilor in the small northern town of Quesnel, British Columbia. He is a devoted evangelical Christian and is outspoken in his community. He is concerned about what he sees occurring in Canadian society, particularly with respect to the growing acceptance of the homosexual lifestyle, which Mr. Kempling believes to be both unhealthy and immoral.

Between 1997 and 2000, Mr. Kempling wrote and published an article and a series of letters to the editor in his local newspaper, the Quesnel Cariboo Observer. Mr. Kempling's topic was homosexuality and homosexual relationships. Not surprisingly, Mr. Kempling is opposed to homosexual behaviour because of his religious beliefs and his beliefs were discussed at length in the articles and letters he published. There were even specific scriptural references, which made the religious origin of his beliefs and comments quite clear.

His professional body, the British Columbia College of Teachers (the "BCCT"), received a complaint about his writings and decided that he had been guilty of conduct unbecoming a member. The BCCT found that Mr. Kempling's writings demonstrated that "he is not prepared to take into account the core values of the educational systems which recognizes that homosexuals have a right to equality, personal dignity and respect . . ." Mr. Kempling chose not to appear at his disciplinary hearing and the decision was made without him providing any evidence or legal argument. By way of punishment, the College of Teachers suspended Mr. Kempling for one month.

Mr. Kempling challenged the BCCT's decision in Court, arguing that it and the punishment handed out to him infringed on his freedom of religion and freedom of expression under the Canadian Charter of Rights and Freedoms.

At the British Columbia Supreme Court, Mr. Kempling lost his case. The judge in the first instance held that since Mr. Kempling referenced his position as a public school teacher in his writings, the statements that he made were not protected by the Charter. Mr. Kempling appealed the court's decision to the B.C. Court of Appeal ("BCCA") which refused the appeal.

Leave to appeal to the Supreme Court was denied so the BCCA decision reviewed here is the final word on this case.

Significant Issues:

Do teachers, and other citizens holding professional qualifications, have the right to freely express themselves on controversial issues without risking discipline by their professional bodies? Will freedom of religion and freedom of expression protect these professional people? Is there "harm" to public schools when a teacher uses discriminatory language in the public square, even if there is no evidence of a poisoned school environment?

Decision and The Court's Reasons:

The Court of Appeal dismissed Mr. Kempling's appeal. The discipline (one month suspension from teaching) handed out by the College of Teachers was left intact.

The Court concluded that Mr. Kempling's writings contained discriminatory and derogatory statements about homosexuals. This was based on the view that some of the contents in Mr. Kempling's writings were "based on stereotypical notions about homosexuality" and indicated a willingness to judge individuals based on those stereotypes.

The next question was whether such discriminatory writings caused sufficient harm to the education system to justify a finding that Mr. Kempling had engaged in conduct unbecoming a public school teacher. The Court concluded that Mr. Kempling's actions and writings had caused harm in that they "damaged the integrity of the school system as a whole". The Court held that they undermined the value of non-discrimination by denying homosexual students an educational environment welcoming to them.

The next issue was whether the College of Teachers' decision infringed on Mr. Kempling's Charter rights. The B.C. Supreme Court considered (and rejected) Mr. Kempling's argument that his freedom of religion had been infringed, but the Court of Appeal refused to do so on the basis that he did not appear at the initial disciplinary hearing to adduce evidence of his religion and religious motivation. In the result, this case cannot properly be said to be a decision dealing definitively with the freedom of religion in these circumstances. Judicial analysis on a fully reasoned basis awaits another day and a case in which a litigant both shows up for the initial hearing and does so with proper legal advice and, perhaps, counsel.

Contrary to the decision in the B.C. Supreme Court, the Court of Appeal held that Mr. Kempling's freedom of expression had been infringed and that a teacher's off-duty statements, even if made in reference to his or her position as a public school teacher, are protected by section 2(b) of the Charter (freedom of thought, belief, opinion and expression).

Having found an infringement of Mr. Kempling's Charter rights, the Court of Appeal then considered whether that infringement was justified in a free and democratic society under section 1 of the Charter. The Court concluded that some of Mr. Kempling's writings crossed the line from reasoned debate into discriminatory rhetoric, and that, in the result, his writings are not deserving of a high level of constitutional protection. The Court held that the infringement was justified and the College of Teachers' decision would stand.

On the constitutional issues, the Court refused to consider Mr. Kempling's allegation of a breach of his freedom of religion because he failed to present evidence before the College of Teachers. Mr. Kempling's writings did contain specific scriptural references and religious allusions. However, this was insufficient for the Court to consider the issue.

The Court of Appeal, unlike the B.C. Supreme Court, found a breach of Mr. Kempling's freedom of expression as guaranteed by the Charter. The Supreme Court held that because Mr. Kempling referenced his role as a public school teacher in his writings, his expression was not constitutionally protected. The Court of Appeal found this to be incorrect. In the result, professional people continue to have some constitutionally protected free expression when speaking in the context of their employment or profession.

The Court of Appeal's decision, both with respect to constitutional issues and whether Mr. Kempling was guilty of conduct unbecoming a public school teacher appears to have been governed by two issues: (1) its view of the nature of Mr. Kempling's writings; and (2) the impact of those writing on the public school system.

Nature of the Writings

As indicated above, the Court of Appeal accepted that some of Mr. Kempling's writings crossed the line from reasoned debate into "discriminatory rhetoric". The Court pointed to a number of statements made by Mr. Kempling in his writings, including:

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

"We cannot criticize the homosexual community for irresponsible behaviour when there is no legal requirement for them to behave responsibly."

"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."

The Court pointed to the oft-cited tenet of Canadian society: the belief that all people are inherently valuable and equally deserving of respect, concern and consideration. The Court specifically found that statements critical of a person's way of life are not discriminatory, unless they disregard the person's inherent dignity. Statements which are based on "stereotypical notions about homosexuality" and which demonstrate a "willingness to judge individuals on the basis of those stereotypes" cross the line and disregard a person's inherent dignity and are discriminatory.

When statements are made based on "actual individual capabilities" rather than "stereotypical characteristics ascribed to them because they are attributed to the group in which the individuals are members", there is a lesser case for discrimination. The Court acknowledged that there was a political and social element in Mr. Kempling's writings and that "portions of his writings form a reasoned discourse". However, overriding this was the Court's finding that some of the writing relied on stereotypical notions of homosexuality. In the result, the Court found them to be discriminatory and deserving of little protection.

Nature of the Harm to the School System

It was argued by Mr. Kempling and intervenors before the Court that without objective harm to the public school system, which requires evidence of a poisoned school environment, there was neither a reason to punish Mr. Kempling nor a basis upon which his constitutional rights could justifiably be infringed. The Court disagreed.

The Court agreed that harm must be shown in order to justify a breach of Mr. Kempling's Charter rights and to justify a finding of conduct unbecoming a public school teacher.

The Court also held that harm need not be directed against particular individuals. This is distinct from the Supreme Court, which found that harm could be reasonably inferred from Mr. Kempling's statements, including a loss of respect by students for Mr. Kempling as a teacher and reluctance on the part of homosexual students to approach Mr. Kempling for counseling—all this with no evidence to support the inference. The Court of Appeal relied on harm "sustained by the school system as a whole", eschewing the need for any evidence that students no longer felt welcome at school or that Mr. Kempling created a poisoned school environment.

The Court held that Mr. Kempling's statements "damaged the integrity of the school system as a whole" by undermining the core value of non-discrimination, which denied homosexual students an education environment accepting of them.

What naturally followed from this conclusion was a decision by the Court of Appeal that the infringement of Mr. Kempling's freedom of expression and the finding that he engaged in conduct unbecoming were justified.

LexView Commentary:

It is unfortunate that the Court of Appeal refused to consider the arguments on freedom of religion. It would have been open for the Court to do so based on the expressly religious content of some of Mr. Kempling's writings. While not reported in the Court's decision, the following were contained in Mr. Kempling's writings:

"There is a petition circulating in my church against Bill C-23, which extends legal recognition to homosexual relationships . . ."

"The majority of religions consider this behaviour to be immoral . . ."

"To all my critics I say, 2 Peter 2:4-19. Read it and weep."

"And although certain churches have opened their doors and even pulpits to practicing homosexuals, we consider that to be apostacy and so do many of their congregants who are leaving in droves."

"My religion prohibits me from hating anyone and I have tried very hard to emphasize that my concerns rest solely with moral and religious issues. Indeed, it is my contention that the School Act obliges me to inveigh against immoral behaviour."

It is true that Mr. Kempling failed to participate in the original hearing and therefore missed his opportunity to more closely link all of his writings with his religious beliefs or other arguments that could have been made. This is unfortunate in that such proof would have bolstered the arguments that the writings should receive strong protection because of their close connection with not one, but several Charter guarantees.

The reason that the religious content of Mr. Kempling's writings is so important is that it provides an additional justification for the moral substance of his commentary. Religions are, in part, concerned with making moral judgments about human behaviour and its effects on society. Sexual practices and sexual orientation are naturally issues of morality for those with deeply held religious beliefs. In fact, such a diversity has been recognized in consequential amendments to, for example, the recent same-sex marriage law which expressly recognizes that a divergence of beliefs exists in Canadian society with respect to homosexual conduct. While it is doubtful that the application of section 2(a) would have resulted in a different outcome, given the ease with which the Court found the breach of freedom of expression justified, it certainly would have provided a more robust analysis of the competing rights claims.

The Court's interpretation of section 2(b) of the Charter (freedom of thought, belief, opinion and expression) was a welcome improvement over the reasoning of Mr. Justice Holmes of the Supreme Court. His analysis would have, in effect, led to the creation of two kinds of citizens: those who enjoy fundamental freedoms and those who do not because they have chosen to pursue a professional occupation governed by a review body with views such as the BCCT. Professionals, be they teachers, lawyers, doctors, accountants or dentists, possess the same fundamental freedoms as other citizens, both on the job and off. By electing to become a professional, one does not give up one's rights to expressive freedom or expression of religious belief. The Court of Appeal apparently recognized that difficulty and provided a more traditional, and expansive, definition of freedom of expression than did the judge at first instance.

However, the Court of Appeal continued the approach taken by the Supreme Court with respect to the minimal protection accorded to "discriminatory" speech. The categorization of ideas or speech as "discriminatory" can become a method of eliminating one side of a debate, especially where controversial issues like sexual morality are involved. The Court of Appeal's decision seriously reduces the protection afforded to controversial speech in a manner that fails to accord with appropriate principles of accommodation in a free and democratic society.

Nature of the Expression: Not Enough to Label Expression as "Discriminatory"

In Chamberlain v. Surrey School District No. 36 (see LexView 25.0), Mr. Justice Gonthier, agreed that "it is a feeble notion of pluralism that transforms "tolerance" into "mandated approval or acceptance" and further that "the inherent dignity of the individual not only survives such moral disapproval, but to insist on the alternative risks treating another person in a manner inconsistent with their human dignity". While he was writing in dissent, the majority of the Supreme Court of Canada did not disagree with the reasoning.

Gonthier J. spoke specifically to human dignity when he stated that a tolerant society can accommodate strong differences in opinion on issues of morality and sexuality. An approach by the Courts which induces uniformity of public expression on controversial moral issues damages human dignity in that it undermines the ability of a freethinking citizenry to the full panoply of opinions and beliefs.

This is presumably why the Court of Appeal attempted to draw a distinction between "reasoned debate" on the one hand and "discriminatory rhetoric" on the other. Reasoned debate, even if offensive, cannot fall outside of the protection afforded by the Charter. "Discriminatory rhetoric", on the other hand, is a category of speech that is apparently less worthy of robust protection.

The Court held that "statements critical of a person's way of life or which denounce a particular lifestyle are not in themselves discriminatory". However, the Court went on to hold that when such statements "are made in disregard of an individual's inherent dignity" they become discriminatory. How can someone know, when being critical of a certain lifestyle, whether they are disregarding someone else's dignity? How can this test effectively be used to govern one's statements without having a massive chilling effect on free expression?

The Court attempted to explain the difference. It held that when statements are based on stereotypical notions about homosexuality, they evidence a willingness to judge individuals on the basis of those stereotypes. With this logic in hand, the Court concluded that Mr. Kempling's statements that "gay people are seriously at risk . . . because of their sexual behaviour" and that the homosexual community engages in "irresponsible behaviour" were discriminatory against homosexuals. Surely the first is a question of scientific fact and the second a personal moral viewpoint?

To categorize comments about disease incidents or dangers as "discriminatory" elides the scientific issues in a manner that is worrying. If they are untrue, unfair or in some way unjustly denigratory that is one thing but the blanket assertion that the statements were discriminatory fails to give proper respect to diversity of viewpoints.

Is this a "dignity" with any true content? Surely all citizens must not be held to a standard of respect that requires them to agree with the conduct of everyone else in order to accord them dignity. Such an expansive conception of "dignity" destroys a substantive content by rendering the term unintelligible and contrary to a meaningful notion of dignity and citizenship.

An example will make this clear: belief in the legitimacy of sexual conduct of a particular sort is rather like belief in relation to religious conduct of a particular sort. We are legally entitled to disagree about a particular sexual conduct as we are legally entitled to disagree about particular religious conduct. Dignity allows for disagreement and, in fact, requires it to a certain extent. By caving in to a conception of dignity that amounts to "don't disagree with me" by calling it, in a blanket fashion, "discriminatory" results in the Court unwittingly playing into the kinds of strident "political correctness" that is increasingly being identified as a threat to democracy itself (see, for example, Jean Bethke Elshtain, Democracy on Trial (New York: Basic Books, 1995) at pp. 52—59).

The protection afforded to gays and lesbians in Canada is based on their membership in a group that is defined by its sexual practices. Criticism of the entire group because of the sexual practices of a many of its members is deemed "discriminatory" because it is perceived to show a willingness to judge individual homosexuals on the basis of group "stereotypes". This reasoning risks reducing reasonable debates to discriminatory rhetoric not because of the nature of the speech but the nature of the test being employed to evaluate it. Are certain homosexual sexual practices "seriously risky" or not? Calling the question itself "discriminatory" can be, perhaps, a clever way to avoid analysis or an uncomfortable social debate but does not equate to a proper way of approaching a conflict of rights in a democracy.

The question then arises: if Mr. Kempling had deliberately recast his remarks to criticize only persons who engage in very specific sexual behaviour, would his speech still be found to be discriminatory? It still may. This is so because "discriminatory rhetoric" is that based on stereotypical assumptions and criticizing sexual conduct engaged in primarily by homosexuals may still be too broad. Thus, saying: "sodomy is dangerous as it leads to many serious medical consequences", which is a clear assertion of medical fact, could, on the reasoning of the BCCA be readily recast as "discriminatory." Is this a sensible approach?

It will be very difficult for anyone to distinguish between "reasoned debate" and "discriminatory rhetoric" when the matter is cast in the way the BCCA has done Those that are members of a professional association, like teachers, architects and lawyers, may be penalized for failing to properly discern the dividing line. This will inevitably result in a chill on free debate and expression, particularly on issues of sexual morality.

Nature of the Harm: Assumptions and Inferences Are Not Enough

In a broader sense, labeling the content of expressed views as "discriminatory" should not be sufficient to justify an infringement of a person's freedoms of expression or religion. The justification of a limitation on religious and political expression under section 1 of the Charter should require, at a minimum, evidence that the speech in issue has caused actual harm. Mere disagreement with the message or belief conveyed does not constitute proof of harm. The Supreme Court decision upheld a limitation on religiously-based speech in the absence of such evidence. The Court of Appeal's decision, while marginally lessening this impact, maintains the same general approach. As with the labeling of speech as discriminatory, such a broad approach to "harm" will have a chilling effect on professionals who will refrain from engaging in political and religious expression deemed "discriminatory" for fear of discipline by their professional bodies. Further, it appears to allow professional bodies to censor their members' public expression. This is not acceptable in a free and democratic society and is, alas, increasingly common in Canada today. The nature of public debate must not be circumscribed by professional review bodies with ideological axes to grind.

In Ross v. New Brunswick School District No. 15, the Supreme Court of Canada was faced with the discipline of a public school teacher who had engaged in anti-Semitic speech in his off-duty time and was disciplined for it. The Court found that his freedom of expression was infringed, but that such infringement was justified in part because there was evidence of a direct impact on students and a poisoned school environment. No similar evidence was presented in Mr. Kempling's case.

In Trinity Western University v. B.C. College of Teachers (see LexView 46.0), the Supreme Court of Canada applied Ross to a circumstance where the College of Teachers refused approval of TWU's teacher education program because of its assumption that the program was discriminatory. The Court ordered the program be approved, in part because of the College of Teachers' speculative conclusion that TWU graduates would likely be ill equipped to deal with homosexual students was based on a perception rather than any evidence of actual discrimination. Similarly, any impact on the public school system of Mr. Kempling's comments was not based on any evidence. The intersection of Ross and TWU should have been of great assistance to Mr. Kempling as they point to the need for actual evidence of harm.

As framed by the Court of Appeal, the analysis essentially stops at the moment Mr. Kempling's statements are found to be discriminatory. If discriminatory statements by a teacher are sufficient to find that the teacher has "damaged the integrity of the school system as a whole", there is little point in further considering how serious is any harm done. It is not that hard to differentiate between speech which causes real harm within the schools, as in Ross, and that which may technically be discriminatory but which everyone knows is part of a societal debate on a sensitive moral issue. Requiring proof of actual harm within the school would have allowed the analysis to continue beyond the call of "discrimination" and would have forced Courts in the future to more carefully analyze the specific rights and interests being protected before a fundamental freedom, such as freedom of expression, is overruled.

It is of note that there was no mention in the Court of Appeal's reasons on the impact on public schools of a restriction on free expression and, therefore, academic freedom, that would naturally flow from limiting debate. Requiring proof of actual harm would have permitted a broader review of the net effect on public schools of the College of Teachers' disciplinary action. As it is, that body is increasingly able to set itself up as a kind of scrutinizer of public morals—hardly the kind of thing an open society should tolerate.

The result is that the labeling of speech as discriminatory (as opposed being a part of a reasoned debate) now can lead directly to an inference of harm, which in Mr. Kempling's case led directly to a justification of the infringement of his constitutional right to free expression.

When an issue is as controversial, emotional and heated as sexual conduct and its implications for society, particularly when these views are mixed with conscience and religious beliefs, the quest for "reasoned debate" must not become an artificial and utopian quest for agreement or silence. Here the Court erred on the side of preventing offence and, in the absence of demonstrable evidence of harm, thereby limited free expression. This is bound to curtail reasoned debates in the future. Unfortunately, future cases will be required to show us all exactly where reasoned debate and discriminatory rhetoric diverge. The approach taken by the BCCA in this case does not provide the principled basis needed for this enquiry and another one will have to be developed in future.

In other cases, when other fundamental freedoms, such as freedom of religion are involved in relation to sexual orientation issues, courts and tribunals have recognized a greater scope for dissent and disagreement (see Brillinger v. Brockie, LexView 51.0, and Smith v. Knights of Columbus, LexView 54.0).

Those approaches, better furthering a modus vivendi (how we live together with disagreement) is the better way forward for cases of this sort. The public expression of controversial views by professionals (including public school teachers), absent demonstrable harm, ought not to be curtailed as they were here.

This issue of LexView was researched and written by:
Kevin L. Boonstra, B.A. (Hons.), LL.B., of the British Columbia Bar. Together with Mr. David M. Brown, Mr. Boonstra was co-counsel for the Canadian Religious Liberty Alliance, one of the intervenors in this case before the B.C. Court of Appeal; and
Iain T. Benson, B.A. (Hons.), M.A. (Cantab.), LL.B. of the British Columbia Bar.

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