Case Name:

                Morin v. Prince Edward Island Regional
                     Administrative Unit No.
          ...
HELD: Appeal allowed in part solely with regard to the claim for breath of freedom
of expression. Morin was attempting to ...
Hunter v. Southam Inc., [1984] 2 S.C.R. 145 (S.C.C.).
Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927
(S....
A.D.), affirmed by the Supreme Court of Canada [1995] 2 S.C.R. 407.
     Walker v. Prince Edward Island, [1995] 2 S.C.R. 4...
(3)   wrongful dismissal; and
      (4)   defamation.

In addition to appealing the trial judge's findings on these issues...
demonstrates that he is enthusiastic and sincere and reveals
           empathy for his students. He shows respect for oth...
viewed on the Public Broadcasting System a BBC documentary film
      entitled "Thy Kingdom Come - Thy Will be Done" which...
from the plaintiff who asked to meet with him. The Principal
      telephoned the Vice-Principal who briefly described the...
he, MacDonald, responded he would consider it insubordination and
      would recommend he be dismissed. MacDonald testifi...
appeared to me that it was 'parachuted' into the program.
           My clients are the students who attend this school an...
appropriateness of my project".

[31] On May 17 the Curriculum Committee agreed to meet to examine
     the "appropriatene...
evidence was accepted at face value.
           The Curriculum Committee examined all aspects of the
           assignment...
voted against the resolution. George MacDonald did not attend this
            meeting.

     [35] By letter dated May 28,...
¶7     I would allow the appeal with respect to the breach of the appellant's right of free
expression as set out in s.2(b...
a free and democratic society. The pre-Charter jurisprudence emphasized
     the importance of political expression becaus...
¶ 17    The Court then reaffirmed that the rights and freedoms guaranteed in the Charter
should be given a large and liber...
a)   harms to certain individuals which consist in their coming to
                 have false beliefs as a result of thos...
to whom it is conveyed. In showing that the effect of the
            government's action was to restrict her free express...
information about it.' Furthermore, it is clear from the substantial
           body of material submitted by the Attorney...
which one communicates, and in art, and that explains why art and language merit
protection under s.2(b) of the Charter.

...
¶ 32    R. v. Keegstra, [1990] 3 S.C.R. 697, contained the following factual background
at p.713:

       Mr. James Keegst...
prohibition in s.319(2) aims directly at words - in this appeal, Mr.
     Keegstra's teachings - that have as their conten...
¶ 39    In determining the answer to this question each member of the Court reviewed
what McLachlin J. termed "the shared ...
the airport but rather with the actions of the airport manager and thus no s.1 justification
was possible. At p.164 he sta...
government to know the truth. Those who purport to legislate the
             truth invariably turn out to be tyrants. The...
the appellant's actions had expressive content without deciding the issue. The
respondent's position on appeal was that th...
convey a meaning. It is activity that is expressive of the appellant's beliefs in what is an
appropriate topic and an appr...
detract from the large and liberal interpretation fostered by our Supreme Court in dealing
with these freedoms.

¶ 62     ...
9.   Such unwarranted inhibition upon the free spirit of teachers affects
             not only those who, like the appell...
[3]    The right to academic freedom, however, like all other constitutional
            rights, is not absolute and must ...
¶ 71      The respondent's position that a teacher can have no right of free expression
because control of schools must re...
three members of the provincial Junior High Language Arts Committee all agreed that
the assignment was appropriate for the...
teacher's questions on the video. She felt they were central to the video
     and should have happened - it never should ...
placed upon the free expression rights of the appellant, not whether the limitations on his
freedom of expression were jus...
¶ 86     That the purpose and intent of the principal and vice-principal in the instant case
was to limit the content of w...
Morin V  Prince Edward Island Regional Administrative Unit No  3 School Board
Morin V  Prince Edward Island Regional Administrative Unit No  3 School Board
Morin V  Prince Edward Island Regional Administrative Unit No  3 School Board
Morin V  Prince Edward Island Regional Administrative Unit No  3 School Board
Morin V  Prince Edward Island Regional Administrative Unit No  3 School Board
Morin V  Prince Edward Island Regional Administrative Unit No  3 School Board
Morin V  Prince Edward Island Regional Administrative Unit No  3 School Board
Morin V  Prince Edward Island Regional Administrative Unit No  3 School Board
Morin V  Prince Edward Island Regional Administrative Unit No  3 School Board
Morin V  Prince Edward Island Regional Administrative Unit No  3 School Board
Morin V  Prince Edward Island Regional Administrative Unit No  3 School Board
Morin V  Prince Edward Island Regional Administrative Unit No  3 School Board
Morin V  Prince Edward Island Regional Administrative Unit No  3 School Board
Morin V  Prince Edward Island Regional Administrative Unit No  3 School Board
Morin V  Prince Edward Island Regional Administrative Unit No  3 School Board
Morin V  Prince Edward Island Regional Administrative Unit No  3 School Board
Morin V  Prince Edward Island Regional Administrative Unit No  3 School Board
Morin V  Prince Edward Island Regional Administrative Unit No  3 School Board
Morin V  Prince Edward Island Regional Administrative Unit No  3 School Board
Morin V  Prince Edward Island Regional Administrative Unit No  3 School Board
Morin V  Prince Edward Island Regional Administrative Unit No  3 School Board
Morin V  Prince Edward Island Regional Administrative Unit No  3 School Board
Morin V  Prince Edward Island Regional Administrative Unit No  3 School Board
Morin V  Prince Edward Island Regional Administrative Unit No  3 School Board
Morin V  Prince Edward Island Regional Administrative Unit No  3 School Board
Morin V  Prince Edward Island Regional Administrative Unit No  3 School Board
Morin V  Prince Edward Island Regional Administrative Unit No  3 School Board
Morin V  Prince Edward Island Regional Administrative Unit No  3 School Board
Morin V  Prince Edward Island Regional Administrative Unit No  3 School Board
Morin V  Prince Edward Island Regional Administrative Unit No  3 School Board
Morin V  Prince Edward Island Regional Administrative Unit No  3 School Board
Morin V  Prince Edward Island Regional Administrative Unit No  3 School Board
Morin V  Prince Edward Island Regional Administrative Unit No  3 School Board
Morin V  Prince Edward Island Regional Administrative Unit No  3 School Board
Morin V  Prince Edward Island Regional Administrative Unit No  3 School Board
Morin V  Prince Edward Island Regional Administrative Unit No  3 School Board
Morin V  Prince Edward Island Regional Administrative Unit No  3 School Board
Morin V  Prince Edward Island Regional Administrative Unit No  3 School Board
Morin V  Prince Edward Island Regional Administrative Unit No  3 School Board
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Morin V Prince Edward Island Regional Administrative Unit No 3 School Board

  1. 1. Case Name: Morin v. Prince Edward Island Regional Administrative Unit No. 3 School Board Between Richard W.O. Morin, appellant, and Board of Trustees of Regional Administration Unit #3, respondent [2002] P.E.I.J. No. 36 2002 PESCAD 9 Docket: AD-0856 Prince Edward Island Supreme Court - Appeal Division McQuaid, Webber and Carruthers JJ.A. Heard: June 11 and 12, and September 24-28, 2001. Judgment: May 1, 2002. (265 paras.) Civil rights — Freedom of speech or expression — Expression, what constitutes — Freedom of expression, scope of — Limitations on — Education — Education authorities — School commissions or boards — Powers respecting school courses or programs — Teachers — Employment — Dismissal. Appeal by Morin from dismissal of his action for damages for breach of his right to freedom of expression under the Canadian Charter of Rights and Freedoms, breach of his right to life, liberty and security of the person, wrongful dismissal and defamation. Morin, a schoolteacher, showed a film entitled Thy Kingdom Come, Thy Will Be Done to his grade nine class as part of a related project. The next day he was prohibited by the vice principal and later the principal from showing the film again or doing the project. The reasons given for the prohibition included some parental opposition to the film because it dealt with religious fundamentalists, inappropriateness for the age group, not being part of the approved curriculum, and there not having been sufficient preparation for the project. An internal appeal resulted in the teacher being told that while the project was appropriate for the age group and within the curriculum, he could only show the film and do the project if his preparation met the approval of the principal and school superintendent. He went on a sick leave a few days after the controversy began, and on his return to the school many students boycotted his classes. He was then granted a temporary leave of absence with pay until the end of the school year. He was not rehired for the following school year.
  2. 2. HELD: Appeal allowed in part solely with regard to the claim for breath of freedom of expression. Morin was attempting to convey a meaning when he showed the film. It was expressive of his beliefs in what was an appropriate topic for his teaching activities. He was dealing with religion as an important element of society, and was teaching in a manner consistent with the approved curriculum. This was expression as defined by the Charter. The students also had a right to hear this expression and benefit from it. The Board's later decision allowing the project subject to the approval of the principal and the superintendent was also a limitation on Morin's expression. These limits clearly breached section 2(b) of the Charter and were not saved under section 1. There was evidence to support the trial judge's finding that there was no collateral contract requiring the school board to rehire Morin the following school year. There was also evidence to support the trial judge's dismissal of Morin's defamation claim. Statutes, Regulations and Rules Cited: Canadian Charter of Rights and Freedoms, 1982, ss. 1, 2, 2(b), 6, 7, 24(1). Criminal Code, ss. 195.1(1), 195.1(1)(c), 319(2). Public Accounting and Auditing Act, R.S.P.E.I. 1988, C.p-28, s-s.14(1). School Act R.S.P.E.I. 1988 Cap. S-2, s.42, s.43. Supreme Court Act, R.S.P.E.I. 1988, S-10, s-s.56(4). School Act Regulation, No. EC665/81, s.1.79, s.1.79(2), s.1.79(13). Prince Edward Island Rules of Civil Procedure, Rule 26.01. Cases cited: Boring v. Buncombe County Board of Educational et al (1998), 136 F. 3d 364 (USA). Committee for the Commonwealth of Canada v. Canada, [1991] 1 S.C.R. 139 (S.C.C.). Crawford v. Cashin, [1999] P.E.I.J. No. 91 (Quicklaw) (P.E.I.S.C.T.D.). Danson v. Ontario (A.G.), [1990] 2 S.C.R. 1086 (S.C.C.). Dormuth v. Unetreiner, [1964] S.C.R. 122 (S.C.C.). Edmonton Journal v. Alberta (Attorney General), [1989] 2 S.C.R. 1326 (S.C.C.). Ford v. Quebec (Attorney General), [1988] 2 S.C.R. 712 (SCC). Godbout v. Longueuil (City), [1997], 3 S.C.R. 844 (S.C.C.). Hodgkinson v. Simms [1994] 3 S.C.R. 377 (S.C.C.). Housen v. Nikolaison, [2002] S.C.J. No. 31, 2002 SCC 33.
  3. 3. Hunter v. Southam Inc., [1984] 2 S.C.R. 145 (S.C.C.). Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927 (S.C.C.). Johnston v. Murchison (1995) 127 Nfld. & P.E.I.R. 1 (P.E.I.S.C.A.D.). Keefe v. Geanokos, 418 F. 2d 359 (1969) (U.S.C.A., 1st Circuit). Keegstra v. The Board of Education of the County of Lacombe No. 14 (1983), 45 A.R. 348 (Bd. of Reference). Morin v. Board of Education of Regional Administrative Unit No. 3 (1995), 125 Nfld. & P.E.I.R. 211 (P.E.I.S.C.A.D.), Leave to appeal denied, (1995), 140 Nflld. & P.E.I.R. 90 (S.C.C.). Munro-Glasgow v. Glasgow 1983 Carswell 83, para. 9 (N.S.C.A.). Noye Enterprises Inc. v. Grady (1999), 172 Nfld. & P.E.I.R. 80 (P.E.I.S.C.-A.D.). Palmer v. R., [1980] 1 S.C.R. 759, at 775 (S.C.C.). Parducci v. Ruthland, 316 F. Supp. 352 (1970) (U.S. District Court). Pickering v. Board of Education, 391 U.S. 563 (1968), (U.S.S.C.). R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295 (S.C.C.). R. v. Guignard, [2002] S.C.J. No. 16, 2002 SCC 14 (SCC). R. v. Keegstra, [1990] 3 S.C.R. 697 (SCC). R. v. Keegstra, [1990] 3 S.C.R. 295 (S.C.C.). R. v. Oakes, [1986] 1 S.C.R. 103 (S.C.C.). R. v. Stolar, [1988] 1 S.C.R. 480 at 486 (S.C.C.). R. v. Zundel, [1992] 2 S.C.R. 731 (S.C.C.). Re: Sullivan (2000), 193 Nfld. & P.E.I.R. 190 (P.E.I.S.C.-A.D.) Reference re ss. 193 and 195.1(1)(c) of the Criminal Code (Man.), [1990] 1 S.C.R. 1123 (SCC). Ross v. New Brunswick School District No. 15, [1996] 1 S.C.R. 825 (S.C.C.), [1996] S.C.J. No. 40. Ross v. New Brunswick School District No. 15, [1996] 1 S.C.R. 40 (S.C.C.). RWDSU v. Dolphin Delivery Ltd., [1986] 2 S.C.R. 573 (SCC). Shumate v. Board of Education of County of Jackson 478 F. 2d 233 (1973) (U.S.C.A. 4th Circuit). Stein et al v. The Ship "Kathy K" et al 62 D.L.R. (3d) 1 (S.C.C.). Toneguzzo - Norvell (Guardian ad litem of ) v. Burnaby Hospital, [1994] 1 S.C.R. 377 (S.C.C.). Varette v. Sainsbury, [1928] S.C.R. 72 (S.C.C.). Walker v. Prince Edward Island (1993), 107 D.L.R. (4th) 69 (P.E.I.S.C.-
  4. 4. A.D.), affirmed by the Supreme Court of Canada [1995] 2 S.C.R. 407. Walker v. Prince Edward Island, [1995] 2 S.C.R. 407 (S.C.C.). Weber v. Ontario Hydro (1992), 98 D.L.R. (4th) 32 (Ont.C.A.). Weber v. Ontario Hydro (1995), 125 D.L.R. (4th) 583 (S.C.C.). Text cited: Sopinka and Gelowitz: The Conduct of an Appeal 2nd ed. (Butterworths). Articles cited: Emerson, Professor Thomas I.: Toward a General Theory of the First Amendment (1963), 72 Yale L.J. 877. Reyes, Allison: Freedom of Expression and Public School Teachers (1995), 4 Dal. J. Leg. Stud. 35. Counsel: Richard W.O. Morin, the appellant, on his own behalf. Roger B. Langille, Q.C., for the respondent. Reasons for judgment were delivered by: Webber J.A., concurred in by Carruthers J.A. Dissenting reasons were delivered by McQuaid J.A. WEBBER J.A.:— BACKGROUND ¶1 The appellant Richard W.O. Morin is a school teacher who showed a film entitled "Thy Kingdom Come, Thy Will be Done", to a grade nine Language Arts class. He was subsequently prevented from showing it to any other class or from carrying out the project to which it related - What Religion Means to Different People. At the time the appellant was in his second year as a probationary teacher at the school. He appealed the order of his principal not to show the film and was partially successful in his appeal through the school system but was placed by the respondent board on an involuntary leave of absence for the rest of the school year and not rehired for the following year. ¶2 The first statement of claim in this matter was filed on April 21, 1989. Various court proceedings and amendments to the statement of claim followed, resulting in a trial in June of 1999. The decision from that trial ([1999] P.E.I.J. No. 76, [1999] 2 P.E.I.R. 220), dismissing all claims, is what is now appealed. The issues raised at trial can be summarized as follows: (1) breach of the appellant's right of freedom of expression under s.2(b) of the Canadian Charter of Rights and Freedoms; (2) breach of s.7 of the Charter;
  5. 5. (3) wrongful dismissal; and (4) defamation. In addition to appealing the trial judge's findings on these issues, the appellant alleges procedural errors and made a motion to this court for the introduction of new evidence. ¶3 The trial judge summarized the evidence with respect to this matter as follows: [9] Sometime in 1986 the plaintiff, who had applied for a teaching position in this province, was contacted by Linda Lowther who was then Coordinator of French with Regional School Unit 3 ("Unit 3"). One of her tasks was to assist with the recruitment and selection of French teachers. As a result of the contact, the plaintiff came to Prince Edward Island to meet with Ms. Lowther. Subsequently, by letter dated June 27, 1986, he was offered a full-time teaching position in Unit 3 for the 1986-87 school year. He signed a Contract for Teachers - Form A, which included the clause: This contract may be extended by written mutual consent, by both parties, but in any event shall not extend beyond June 30, 1987. [10] By letter dated June 25, 1987 the plaintiff again was offered a full- time teaching position in Unit 3 for the 1987-88 school year. Another Contract for Teachers - Form A was duly signed by both parties. This contract included the clause: This contract may be extended by written mutual consent, by both parties, but in any event shall not extend beyond June 30, 1988. [11] During both school years in question the plaintiff was employed as an untenured teacher at Birchwood Junior High School ("Birchwood") in this City. He was assigned to the French Immersion program at the grade nine level. At this time the Principal of Birchwood was George A. MacDonald. [12] The plaintiff's first year at Birchwood seems to have passed with no major difficulties. On June 25, 1987 the Principal provided the following written evaluation of the plaintiff's first year performance: Mr. Richard Morin is a first year untenured teacher at Birchwood Junior High School. Mr. Morin is assigned to the French Immersion program at the grade nine level. Classroom observations indicate that Mr. Morin is a conscientious hard working teacher who wants to do well. He
  6. 6. demonstrates that he is enthusiastic and sincere and reveals empathy for his students. He shows respect for other people and their ideas and is considerate of each student's self image. There are however some concerns which I have discussed with Mr. Morin in June 1, 1987 when I informed him that I would be recommending him for a teaching position for the 1987-1988 school year. These concerns are in the area of classroom management, poise and neatness. If he is willing to work on the above concerns, I believe classroom discipline will improve, the classroom atmosphere will improve and Mr. Morin will gain greater respect from his students and parents. I trust Mr. Morin will find my evaluation fair and constructive. [13] Unfortunately, the plaintiff's second year at Birchwood did not go as smoothly as the first. There is evidence that a meeting was held on March 7, 1988 with the Principal, Linda Lowther, Debbie Pineau, the then Core French Coordinator for Unit 3, and John MacDonald, who was then Superintendent for Administration for Unit 3, in attendance. This meeting was called to consider the plaintiff's future at Birchwood. [14] The plaintiff has argued in his post-trial brief that the March 7 meeting did not occur despite the testimony of George MacDonald, John MacDonald and Debbie Pineau that it did. There is also in evidence as Exhibit P-1, Tab 10, short hand-written minutes of the meeting prepared by John MacDonald. I am satisfied from the evidence that this meeting did take place. Debbie Pineau testified she recalled the meeting had been called to discuss the plaintiff's future, but could not recall specifics of the discussions. She did state, however, that she could not believe John MacDonald would fabricate the minutes. Both John MacDonald and George MacDonald were able to recall the meeting and confirmed that the hand-written minutes accurately reflect the substance of the discussion. Although Linda Lowther testified on behalf of the plaintiff, she was not questioned about the March 7 meeting. [15] According to the evidence, at the March 7 meeting George MacDonald expressed concern about the plaintiff's future as a teacher. He advised the group he felt the plaintiff could not remain at Birchwood, but added the plaintiff had positive teacher attributes that might be more suitable at the senior high school level. [16] On Thursday, April 7, 1988 an event took place which led to a series of confrontations and occurrences ultimately giving rise to this litigation. It appears that during the evening of April 6 the plaintiff
  7. 7. viewed on the Public Broadcasting System a BBC documentary film entitled "Thy Kingdom Come - Thy Will be Done" which described the fundamentalist approach to religion in the United States. The film made such a favourable impression on the plaintiff that he determined to show it to his grade 9 Language Arts classes as the basis for an assignment. The following morning the documentary, which had been videotaped by the plaintiff's wife, was shown by the plaintiff to another teacher's home room class during the Language Arts period which the plaintiff taught. [17] Apparently, some of the students to whom the documentary was shown were not so favourably impressed. On Friday, April 8, the Vice-Principal, Garnet Steele, learned that between 10 to 15 parents had called the Principal's office to express concerns about their children having been shown the documentary. The Principal was out of the province for the day. [18] The Vice-Principal, concerned the plaintiff might intend to show the documentary to his own home room class that morning, proceed [sic] to the plaintiff's class. The testimony of Garnet Steele and that of the plaintiff differs somewhat as to what then occurred. According to Steele, he asked the plaintiff if he could speak to him whereupon the plaintiff stepped out of the classroom into the corridor. The plaintiff says the conversation took place at the classroom door. Both appear to agree that Steele informed the plaintiff of the concerns expressed by the parents, and Steele requested the plaintiff not to proceed further with the assignment until he had discussed it with the Principal. Steele testified the plaintiff questioned this decision, and asked what Steele would do if he, the plaintiff, showed the documentary. Steele stated he replied the plaintiff would be removed from the classroom. The plaintiff says he was told he would be "dragged" from the classroom. In the final analysis, there is no evidence anyone overheard this conversation, whatever was said. [19] The plaintiff did not show the documentary on Friday. At approximately 1:30 in the afternoon the plaintiff attended at the Vice-Principal's office to express concern about what he would do with the students of the class who had viewed the documentary the previous day, a class the plaintiff was due to teach during the last period. The Vice-Principal arranged for a substitute for that period, and also for Monday morning in order to provide the plaintiff the time to meet with the Principal. [20] George MacDonald first became aware of the events of April 7 and 8 on Sunday evening when he received a telephone call at his home
  8. 8. from the plaintiff who asked to meet with him. The Principal telephoned the Vice-Principal who briefly described the events in question. The Principal called the plaintiff and arranged to meet with him the next morning. It appears the Vice-Principal did attend at the Principal's home on Sunday evening to further brief him on the concerns that had been expressed by the parents. [21] By letter dated April 8, 1988 the Superintendent for Administration, John MacDonald, advised the plaintiff as follows: This letter is to advise you that your present teaching contract will terminate effective June 30, 1988. This notice is being given in accordance with Part III, Section 42 of the Prince Edward Island School Act. We shall make every effort to place you in a teaching position in Unit 3 for September, 1988. You are invited to attend a meeting at Stonepark Junior High School Lecture Theatre on Thursday, April 21, at 3:30 p.m. to discuss possibilities for teaching assignments in Unit 3 for the 1988-1989 school year. [22] This letter was in accordance with s. 42 of the School Act, R.S.P.E.I. 1988, c. S-2. There is no evidence as to whether or not the plaintiff attended the meeting at Stonepark Junior High School. [23] On Monday morning, April 11, the plaintiff and his wife met with the Principal, George MacDonald in the latter's office. There is, of course, a conflict between the testimony of the plaintiff and his wife and that of George MacDonald as to exactly what was said at this meeting. It is sufficient for the purposes of this overview to note the plaintiff was provided with an opportunity to explain the project he intended to pursue. He testified he "...went into as much detail as possible". MacDonald testified the plaintiff spoke for 20 to 25 minutes uninterrupted. He stated the more the plaintiff spoke, the more concerned he, MacDonald, became that the project as proposed would cause great turmoil. According to MacDonald, his concerns included how the project would affect those children of fundamentalist parents in the school, whether the project was age appropriate, and the apparent lack of detailed planning as to the project itself. MacDonald informed the plaintiff the project would not proceed, explaining to him his reasons. The plaintiff asked what would happen if he went ahead anyway. He testified MacDonald replied "I'll fire you". He also stated MacDonald said "If you appeal my decision I'll consider it insubordination". [24] MacDonald's evidence is quite different. His version is that when the plaintiff asked what would happen if he did the project anyway,
  9. 9. he, MacDonald, responded he would consider it insubordination and would recommend he be dismissed. MacDonald testified he told the plaintiff that he, MacDonald, did not hire or fire. He also stated he informed the plaintiff he could appeal the decision to the Superintendent of Education of Unit 3, Rufus Reid. [25] The next day, Tuesday April 12, 1988 the Principal provided to the plaintiff a letter confirming his position. It states, in part: Your assignment to the french immersion students in 9E on April 7, 1988 is withdrawn and the British documentary used will not form part of the language arts program at Birchwood Junior High School. [26] On that same day the plaintiff, accompanied by his wife and James L. Blanchard, the General Secretary of the Prince Edward Island Teacher's Federation, attended at the office of Rufus Reid. George MacDonald was also in attendance. The plaintiff and Mr. Blanchard explained to Mr. Reid what had occurred. The plaintiff described the project, which he had entitled "What Religion Means to Different People", and why he considered the grade 9 students capable of doing it. On April 14, Mr. Reid informed the plaintiff in writing that he had decided to uphold the decision reached by the Principal. His letter contained the following paragraph: In my opinion, Mr. MacDonald is well qualified to determine what material and methodology is suitable for the students at Birchwood Junior High School. I have confidence that his experience with junior high students and his knowledge of the community served by the school have enabled him to make the right decision in this instance. [27] The plaintiff was on sick leave supported by medical certificates between April 11, 1988 and May 12, 1988. Two certificates were issued to him by his physician; one on April 11, and a second on April 29. During this period the plaintiff decided to hold a public meeting where the documentary in question would be shown, especially to concerned parents. Also during this period, the media became interested in the on-going situation, and the plaintiff was approached by the CBC to give his side of the events. On April 18, recognizing the situation was now of interest to the media, the Principal issued the following media release: I made a decision that the assignment was not age appropriate. I was not able to see the relevance of this assignment to the grade nine language arts program and it
  10. 10. appeared to me that it was 'parachuted' into the program. My clients are the students who attend this school and their parents. This assignment caused much concern among students and their parents. Students are a captive audience, I have a responsibility to them and to their parents. I feel that it may well be an appropriate assignment for a high school or a university political science program. It is not one that is appropriate for junior high school students, in my opinion. He was requested to withdraw the assignment. In my opinion, his professional freedom was not compromised. [28] On April 29, 1988 the Prince Edward Island Teachers' Federation informed the Chairperson of Unit 3 that, at the plaintiff's request, it had agreed to intervene to attempt to resolve the dispute between the plaintiff and the Unit 3 administration. It requested a review of the decision regarding the appropriateness of the assignment in question. [29] In the interim the plaintiff's sick leave was to expire on May 12. He informed the Principal on May 12 that he intended to return to the class room next day, Friday, May 13. The Principal advised the plaintiff he needed more time to prepare all concerned for his return to the school. There is an indication in the evidence that a number of staff members at Birchwood had found upsetting certain comments the plaintiff was reported to have made. [30] On Monday, May 16, 1988 the plaintiff returned to the school. The evidence clearly established that some parents sent letters to the school excusing their children from attending the plaintiff's class. Other students attended, but left class before the period concluded. There is evidence that during the plaintiff's first home room period of the day seven students out of twenty-nine did not attend the class. During the first period, eleven of thirty-three were absent, and during the second period fifteen of twenty-nine were absent initially, and eight more left during the course of the period. During the fifth period, another home room period, the original seven students did not attend. Finally, during the seventh period of the day, Language Arts, six students of twenty-nine were absent at the beginning, and during the period more students left until, at the end of the period, only four students remained in class. On May 19, 1988 the Unit 3 School Board granted the plaintiff a temporary leave of absence with pay in order that the events of May 16 could be investigated. By letter of May 21 addressed to the Superintendent of Education of Unit 3, Rufus Reid, the plaintiff agreed to the temporary leave of absence until May 25 "...in order to give the Unit 3 School Board the necessary time to come to a decision about the
  11. 11. appropriateness of my project". [31] On May 17 the Curriculum Committee agreed to meet to examine the "appropriateness of the assignment in question as it pertains to the grade nine Language Arts program in Birchwood Junior High School". The Curriculum Committee requested that three members of the provincial Junior High Language Arts Program be made available to give advice on the question. The plaintiff was invited to meet with the Curriculum Committee at 7:30 p.m. on May 17. This meeting began at 5:30 p.m. and was adjourned at 12:15 a.m. During the early part of the meeting the plaintiff, his wife and Mr. Blanchard were present and the plaintiff fully described the project and assignment he had intended for the grade 9 Language Arts classes. He was questioned extensively by the members of the Curriculum Committee and the three members of the provincial Junior High Language Arts Committee who were present to provide advice. When the plaintiff had completed his presentation, he, his wife and Mr. Blanchard left the meeting, and George MacDonald, who had not been present up to that point, joined the meeting. [32] The Principal reported the events of April 11 as he had assessed them, and responded to questions. [33] At 12:15 a.m. the Committee, not having completed its evaluation, adjourned and decided to reconvene the next day at 12:00 noon. The meeting in fact was reconvened at 12:10 p.m. on Thursday, May 19, 1988 and after considerable further discussion adjourned having agreed to meet again beginning at 7:00 p.m. that evening. The formal committee meeting was reconvened at 8:30 p.m. after several committee members had viewed the second part of the documentary "Thy Kingdom Come - Thy Will be Done". The meeting finally adjourned at 11:15 p.m. As a result of the recommendation of the Curriculum Committee the Unit 3 School Board released the following statement at the conclusion of a Special meeting held on May 25, 1988: 'As provided in School Board Policy, the Curriculum Committee examined the appeal by Mr. Morin of the administration's decision to cancel a language arts assignment entitled 'What religion means to different people'. Three meetings were held during which the Curriculum Committee examined the Statement of Appeal, examined the grade nine curriculum, interviewed the participants, and formulated a recommendation for the School Board. The Curriculum Committee recognized the fact that different people interpreted the assignment in different ways; therefore, all
  12. 12. evidence was accepted at face value. The Curriculum Committee examined all aspects of the assignment including the following: topic, objectives, skills, content, materials, preparation, presentation, student activities, and evaluation. The assistance of members of the provincial Junior High School Language Arts Curriculum Committee was valuable especially as it pertained to the relationship between the assignment and the authorized provincial program. In general, the committee reviewed the assignment keeping the following in mind: (a) the provincial program entitled 'Contexts', (b) customary teaching practice, and (c) the characteristics of the school and community. In summary, the Curriculum Committee found the assignment: - to be acceptable in terms of theme, topic, skills (viewing, reading, writing), and learning materials; - to be wanting in terms of preparation, review of prerequisite skills, presentation, and evaluation; and - to be questionable in terms of meeting the expectations of students and parents with regard to the sensitivity of the topic and the provision of an alternate assignment. It is the School Board's opinion that correcting action in respect to the assignment should take place as expressed in the following decision: The Board determines that the assignment was appropriate in principle as a part of the authorized Language Arts program, although it was inappropriate in terms of preparation and presentation. Policy BDE provides that an appealed decision may be modified. Therefore, the assignment in question remains cancelled until such time as its mode of presentation is altered to the satisfaction of both teacher and principal, with the concurrence of the Superintendent of Programs.' [34] The Unit 3 School Board met on Saturday, May 28, 1988 to consider whether the plaintiff could return to Birchwood for the balance of the school year in a teaching capacity. There had been a meeting on May 26 between the plaintiff, Mr. Blanchard and George MacDonald, but no agreement had been reached. It appears parents of some of the plaintiff's grade nine students were opposed to his return to the class so late in the school year since he had been away from the class for a considerable period of time. The Board adopted a resolution that the plaintiff be placed on leave with pay for the remainder of the 1987-88 school year. One member of the Board
  13. 13. voted against the resolution. George MacDonald did not attend this meeting. [35] By letter dated May 28, 1988 the plaintiff was informed of the Board's decision. He was also provided with a copy of a public statement released by the Board as it considered it desirable that the school and the public in Unit 3 be informed of its decision. The public statement read: Following a Special Meeting of the Unit 3 School Board held on Saturday, May 28, 1988, the Chairperson released the following public statement: 'The Unit 3 School Board has determined that Rick Morin, teacher at Birchwood Junior High School, be placed on a leave with pay, effective immediately, as a non-disciplinary measure, based on the paramount concern for the best interests of students. The decision was made in light of all the surrounding circumstances, including the length of time Mr. Morin was absent from school since the controversy first arose, the anxiety of students, and the need for a settled climate in the school just prior to exam time. The Board emphasizes that this decision reflects the Board's paramount concern for the interests of students and the decision is not intended to be a reflection in any way of Mr. Morin's suitability as a teacher.' [36] On August 11, 1988 the plaintiff wrote to the Superintendent of Personnel of Unit 3 seeking clarification of his situation. By letter dated August 25 he was informed that teaching positions for the 1988-89 school year had been filled, and that his application would remain on file for the remainder of the year for consideration if additional positions became available. ¶4 The appellant takes issue with a number of aspects of this statement of facts. The trial judge referred to this summary as a "broad outline only," dealing elsewhere in his judgment with details relevant to specific issues. As a broad outline, it is a fair summary of the sequence of events between the parties. ¶5 The trial judge dismissed the plaintiff's claim in its entirety. ¶6 The appellant argues errors of law on all issues and some errors of fact. DISPOSITION
  14. 14. ¶7 I would allow the appeal with respect to the breach of the appellant's right of free expression as set out in s.2(b) of the Charter of Rights and Freedoms. I would dismiss all other grounds of appeal. The costs award would be varied accordingly. The matter of damages should be remitted to the trial judge. CHARTER OF RIGHTS ¶8 The trial judge assumed, without finding, that the appellant's activity had expressive content and fell within the scope of s.2(b). He found that the purpose of the decision of the principal and administration was not to restrict the plaintiff's freedom of expression but rather was to create an effective learning environment for the students. He took the position that administrators must have broad discretion to regulate what is taught as part of the curriculum and a principal should be able to make such a decision, on reasoned ground, without fear of lawsuits. ¶9 With all due respect I cannot agree with the trial judge's interpretation or application of the law regarding freedom of expression in this case. I find that the purpose of the principal's action was clearly to restrict the appellant's freedom of expression, and there were no "reasoned grounds" for the decisions made. ¶ 10 Section 2 of the Charter states: 2. Everyone has the following fundamental freedoms: (a) freedom of conscience and religion; (b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication; (c) freedom of peaceful assembly; and (d) freedom of association. ¶ 11 The appellant argues that the decision to forbid him from showing the film he wished to use as part of his teaching program, and thus from carrying out the project he had chosen, violated his fundamental right of freedom of expression under s.2(b) of the Charter. ¶ 12 The analytical framework for a s.2(b) analysis has been set out by the Supreme Court of Canada through a number of key cases. In Ford v. Quebec (Attorney General), [1988] 2 S.C.R. 712, at p.746, the Court referred to some of the principles underlying the concept of freedom of expression. That case involved a challenge to a Quebec sign law that restricted commercial signs to French only. The Court applied the freedom of expression guarantee to commercial expression, given the underlying principles behind such a freedom: It is apparent to this Court that the guarantee of freedom of expression in s.2(b) of the Canadian Charter and s.3 of the Quebec Charter cannot be confined to political expression, important as that form of expression is in
  15. 15. a free and democratic society. The pre-Charter jurisprudence emphasized the importance of political expression because it was a challenge to that form of expression that most often arose under the division of powers and the 'implied bill of rights,' where freedom of political expression could be related to the maintenance and operation of the institutions of democratic government. But political expression is only one form of the great range of expression that is deserving of constitutional protection because it serves individual and societal values in a free and democratic society. ¶ 13 The court in Ford went on to affirm the comments in RWDSU v. Dolphin Delivery Ltd., [1986] 2 S.C.R. 573 by McIntyre J. at p.583 where he said about freedom of expression: "It is one of the fundamental concepts that has formed the basis for the historical development of the political, social and education institutions of western society." [Emphasis added] ¶ 14 The following year the Supreme Court in Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927 developed these themes further, reaffirming the existence of a protected right of free speech in relation to commercial expression. This case dealt with Quebec-legislated restrictions on advertising to children. The Court found a limitation on a protected right but there was a dissent as to whether or not a s.1 justification for a limitation of that right had been proven. ¶ 15 In Irwin Toy Chief Justice Dickson for the majority set out the analytical framework for reviewing s.2(b) Charter challenges. The first step is to determine whether the activity at issue may properly be characterized as expression within the meaning of s.2(b) of the Charter. The Court found expression to consist of both content and form; an activity is expressive if it attempts to convey meaning. ¶ 16 The Court cited with approval in Irwin Toy (at p.970) an excerpt from an article by Professor Thomas I. Emerson entitled Toward a General Theory of the First Amendment (1963), 72 Yale L.J. 877, at p.886: ... the theory of freedom of expression involves more than a technique for arriving at better social judgments through democratic procedures. It comprehends a vision of society, a faith and a whole way of life. The theory grew out of an age that was awakened and invigorated by the idea of a new society in which man's mind was free, his fate determined by his own powers of reason, and his prospects of creating a rational and enlightened civilization virtually unlimited. It is put forward as a prescription for attaining a creative, progressive, exciting and intellectually robust community. It contemplates a mode of life that, through encouraging toleration, skepticism, reason and initiative, will allow man to realize his full potentialities. It spurns the alternative of a society that is tyrannical, conformist, irrational and stagnant.
  16. 16. ¶ 17 The Court then reaffirmed that the rights and freedoms guaranteed in the Charter should be given a large and liberal interpretation. On that basis there was no reason to exclude commercial expression from the protection of the Charter. ¶ 18 The second step in the required analysis is to determine whether the purpose or effect of the government action in question was to restrict freedom of expression. The Court noted that the importance of this query was set out in R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295 at pp.331-32 where Dickson C.J. said: ... In my view, both purpose and effect are relevant in determining constitutionality; either an unconstitutional purpose or an unconstitutional effect can invalidate legislation. All legislation is animated by an object the legislature intends to achieve. This object is realized through the impact produced by the operation and application of the legislation. Purpose and effect respectively, in the sense of the legislation's object and its ultimate impact, are clearly linked, if not indivisible. Intended and actual effects have often been looked to for guidance in assessing the legislation's object and thus, its validity. ¶ 19 With respect to "purpose," the Court in Irwin Toy noted that government can almost always claim that its subjective purpose was to address some real or purported social need, not to restrict expression. Elaborating upon how one must view the fact situation to make this determination Dickson C.J. stated (at p.974): If the government's purpose is to restrict the content of expression by singling out particular meanings that are not to be conveyed, it necessarily limits the guarantee of free expression. If the government's purpose is to restrict a form of expression in order to control access by others to the meaning being conveyed or to control the ability of the one conveying the meaning to do so, it also limits the guarantee. On the other hand, where the government aims to control only the physical consequences of certain human activity, regardless of the meaning being conveyed, its purpose is not to control expression. ¶ 20 He went on to caution (at p.975-976): ... Of course, rules can be framed to appear neutral as to content even if their true purpose is to control attempts to convey a meaning. For example, in Saumur v. City of Quebec, [1953] 2 S.C.R. 299, a municipal by-law forbidding distribution of pamphlets without prior authorization from the Chief of Police was a colourable attempt to restrict expression. If the government is to assert successfully that its purpose was to control a harmful consequence of the particular conduct in question, it must not have aimed to avoid, in Thomas Scanlon's words ('A Theory of Freedom of Expression', in Dworkin, ed., The Philosophy of Law (1977), at p.161):
  17. 17. a) harms to certain individuals which consist in their coming to have false beliefs as a result of those acts of expression; b) harmful consequences of acts performed as a result of those acts of expression, where the connection between the acts of expression and the subsequent harmful acts consists merely in the fact that the act of expression led the agents to believe (or increased their tendency to believe) these acts to be worth performing. In each of Scanlon's two categories, the government's purpose is to regulate thoughts, opinions, beliefs or particular meanings. That is the mischief in view. On the other hand, where the harm caused by the expression in issue is direct, without the intervening element of thought, opinion, belief, or a particular meaning, the regulation does aim at a harmful physical consequence, not the content or form of expression. In sum, the characterization of government purpose must proceed from the standpoint of the guarantee in issue. With regard to freedom of expression, if the government has aimed to control attempts to convey a meaning either by directly restricting the content of expression or by restricting a form of expression tied to content, its purpose trenches upon the guarantee. Where, on the other hand, it aims only to control the physical consequences of particular conduct, its purpose does not trench upon the guarantee. In determining whether the government's purpose aims simply at harmful physical consequences, the question becomes: does the mischief consist of the meaning of the activity or the purported influence that meaning has on the behaviour of others, or does it consist, rather, only in the direct physical result of the activity. ¶ 21 If government's purpose is found not to be to control or restrict attempts to convey a meaning, then one must determine whether or not, in any event, the governmental action had that effect. For this part of the analysis, the burden of proof falls upon the plaintiff. ¶ 22 Dickson C.J. stated in Irwin Toy that when considering the effect of government action, the restrictive effect must be shown to have some connection with the principles and values underlying the freedom in question. With respect to freedom of speech, the court affirmed the values identified in Ford, summarizing them as follows (at p.976): ... (1) seeking and attaining truth is an inherently good activity; (2) participation in social and political decision-making is to be fostered and encouraged; and (3) the diversity in forms of individual self- fulfillment and human flourishing ought to be cultivated in an essentially tolerant, indeed welcoming, environment not only for the sake of those who convey a meaning, but also for the sake of those
  18. 18. to whom it is conveyed. In showing that the effect of the government's action was to restrict her free expression, a plaintiff must demonstrate that her activity promotes at least one of these principles. It is not enough that shouting for example, has an expressive element. If the plaintiff challenges the effect of government action to control noise, presuming that action to have a purpose neutral as to expression, she must show that her aim was to convey a meaning reflective of the principles underlying freedom of expression. The precise and complete articulation of what kinds of activity promote these principles is, of course, a matter for judicial appreciation to be developed on a case by case basis. But the plaintiff must at least identify the meaning being conveyed and how it relates to the pursuit of truth, participation in the community, or individual self-fulfillment and human flourishing. ¶ 23 With respect to the specific problem before it in Irwin Toy the Court applied this purposive test as follows (at p.977-979): c. Sections 248 and 249 There is no question but that the purpose of ss.248 and 249 of the Consumer Protection Act was to restrict both a particular range of content and certain forms of expression in the name of protecting children. Section 248 prohibits, subject to regulation, attempts to communicate a commercial message to persons under thirteen years of age. Section 249 identifies factors to be considered in deciding whether the commercial message in fact has that prohibited content. At first blush, the regulations exempting certain advertisements transform the prohibition into a 'time, place or manner' restriction aiming only at the form of expression. According to ss. 88 to 90 of the Regulation respecting the application of the Consumer Protection Act, an advertisement can be aimed at children if: (1) it appears in certain magazines or inserts directed at children; (2) it announces a programme or show directed at children; or (3) it appears in or on a store window, display, container, wrapping, or label. Yet, even if all advertising aimed at children were permitted to appear in the manner specified, the restriction would be tied to content because it aims to restrict access to the particular message being conveyed. However, the regulations in question do more than just restrict the manner in which a particular content must be expressed. They also restrict content directly. Section 91 provides that even where advertisements directed at children are permitted, such advertisements must not, for example 'use a superlative to describe the characteristics of goods or services' or 'directly incite a child to buy or to urge another person to buy goods or services or to seek
  19. 19. information about it.' Furthermore, it is clear from the substantial body of material submitted by the Attorney General of Quebec as well as by the intervener, Gilles Moreau, president of the Office de la protection du consommateur, that the purported mischief at which the Act and regulations were directed was the harm caused by the message itself. In combination, therefore, the Act and the regulations prohibit particular content of expression. Such a prohibition can only be justified if it meets the test under s. 1 of the Canadian Charter and s.9.1 of the Quebec Charter. D. Summary and Conclusion ..... In the instant case, the plaintiff's activity is not excluded from the sphere of conduct protected by freedom of expression. The government's purpose in enacting ss. 248 and 249 of the Consumer Protection Act and in promulgating ss. 87 to 91 of the Regulation respect the application of the Consumer Protection Act was to prohibit particular content of expression in the name of protecting children. These provisions therefore constitute limitations to s. 2(b) of the Canadian Charter and s. 3 of the Quebec Charter. They fall to be justified under s. 1 of the Canadian Charter and s. 9.1 of the Quebec Charter. ¶ 24 All members of the Court in Irwin Toy agreed with this analysis and outcome. There was a dissent with respect to whether or not these restrictions on freedom of expression could be justified under s.1. ¶ 25 The reason for quoting at length from Irwin Toy is that it provides one of the most expansive explanations by the Court of the analytical process to be used when considering a s.2(b) challenge. And the framework set out in Irwin Toy has been used by the Court in subsequent cases. ¶ 26 For example, Chief Justice Dickson in Reference re ss. 193 and 195.1(1)(c) of the Criminal Code (Man.), [1990] 1 S.C.R. 1123, reiterated this principled approach to interpreting the scope of the fundamental freedoms set out in Irwin Toy. All members of the Court found that Criminal Code section 195.1(1)(c) (soliciting for the purposes of prostitution) was inconsistent with the Charter right of freedom of expression. Writing for the majority, Dickson C.J. found the restrictions of s.195.1(1) justified under s.1 of the Charter. ¶ 27 In this Reference re ss. 193 and 195.1(1)(c) , Lamer J. expanded upon the analytical framework developed by the Court to that point, saying that form and content are in some cases inextricably linked, for example in the choice of language through
  20. 20. which one communicates, and in art, and that explains why art and language merit protection under s.2(b) of the Charter. ¶ 28 Other forms of expression, however, can be kept distinct from the content they seek to convey and thus excluded from the scope of s.2(b) of the Charter, e.g. threats or acts of violence. This point was elaborated upon by Lamer J. in his concurring decision. However, he went on to emphasize that activities are not excluded from the protection of s.2(b) of the Charter simply because they have been made the subject of criminal offences. On this point he concluded at p.1184: Without settling the matter conclusively, I am of the view that at the very least a law that makes it an offence to convey a meaning or message, however distasteful or unpopular, through a traditional form of expression like the written or spoken word or art must be viewed as a restriction on freedom of expression, and must be justified, if possible, by s.1 of the Charter. This method is consistent with the broad, inclusive approach to the protected sphere of freedom of expression that this court has explicitly adopted. ... ¶ 29 This is not to say that all expressive activity is protected. Lamer J. elaborated upon this point at p. 1185: ...The unprotected forms involve direct acts of violence and often involve direct attacks on the physical integrity and liberty of another. ... criminalization is not the acid test of whether an activity is protected by s.2(b). Where what has been criminalized is the conveyance of a message, however distasteful or unpopular, which is conveyed in a non-violent form of expression then it is protected by s.2(b), and the onus then shifts to the state to justify the restriction on freedom of expression. ¶ 30 As for the actual method of analysis to be used in freedom of expression cases, Lamer J. affirmed the approach set out above in Irwin Toy. Regarding the determination of whether or not the purpose of government action was to restrict freedom of expression, he stated at p.1187: ... If the government's purpose is to restrict a form of expression in order to control access by others to the meaning being conveyed or to control the ability of the one conveying the meaning to do so, it also limits freedom of expression. ¶ 31 As for the merits of the case before him, in Reference re ss.193 and 195.1(1)(c), Lamer J. referred to the impugned Code sections as specifically aimed at restricting commercial expression "in perhaps its purest form," i.e. information relating to the exchange of services for money. Therefore, s.195.1(1)(c) was found to restrict freedom of expression as guaranteed by s.2(b) of the Charter. However, it was saved by satisfying the requirements of s.1.
  21. 21. ¶ 32 R. v. Keegstra, [1990] 3 S.C.R. 697, contained the following factual background at p.713: Mr. James Keegstra was a high school teacher in Eckville, Alberta from the early 1970's until his dismissal in 1982. In 1984 Mr. Keegstra was charged under s.319(2) (then s.281.2(2)) of the Criminal Code with unlawfully promoting hatred against an identifiable group by communicating anti-Semitic statements to his students. He was convicted by a jury in a trial before McKenzie J. of the Alberta Court of Queen's Bench. Mr. Keegstra's teachings attributed various evil qualities to Jews. He thus described Jews to his pupils as 'treacherous,' 'subversive,' 'sadistic,' 'money- loving,' 'power-hungry' and 'child killers.' He taught his classes that Jewish people seek to destroy Christianity and are responsible for depressions, anarchy, chaos, wars and revolution. According to Mr. Keegstra, Jews 'created the Holocaust to gain sympathy' and, in contrast to the open and honest Christians, were said to be deceptive, secretive and inherently evil. Mr. Keegstra expected his students to reproduce his teachings in class and on exams. If they failed to do so, their marks suffered. ¶ 33 Mr. Keegstra argued that s.319(2) of the Criminal Code unjustifiably infringed his freedom of expression as guaranteed by s.2(b) of the Charter. ¶ 34 The first step in the s.2(b) analysis set out by the court was the determination of whether the activity of the litigant who alleged an infringement of the freedom of expression fell within the protected s.2(b) sphere. At. p.729 Dickson C.J. for the majority affirmed the following comments set out in Irwin Toy: ...'"Expression" has both a content and a form, and the two can be inextricably connected. Activity is expressive if it attempts to convey meaning. That meaning is its content. Freedom of expression was entrenched in our Constitution and is guaranteed in the Quebec Charter so as to ensure that everyone can manifest their thoughts, opinions, beliefs, indeed all expressions of the heart and mind, however unpopular, distasteful or contrary to the mainstream. Such protection is, in the words of both the Canadian and Quebec Charters, 'fundamental' because in a free, pluralistic and democratic society we prize a diversity of ideas and opinions for their inherent value both to the community and to the individual.' ¶ 35 Dickson C.J. then concluded at p.730: .... It is enough that those who publicly and wilfully promote hatred convey or attempt to convey a meaning, and it must therefore be concluded that the first step of the Irwin Toy test is satisfied. Moving to the second stage of the s.2(b) inquiry, one notes that the
  22. 22. prohibition in s.319(2) aims directly at words - in this appeal, Mr. Keegstra's teachings - that have as their content and objective the promotion of racial or religious hatred. The purpose of s.319(2) can consequently be formulated as follows: to restrict the content of expression by singling out particular meanings that are not to be conveyed. Section 319(2) therefore overtly seeks to prevent the communication of expression, and hence meets the second requirement of the Irwin Toy test. In my view, through s.319(2) Parliament seeks to prohibit communications which convey meaning, namely, those communications which are intended to promote hatred against identifiable groups. I thus find s.319(2) to constitute an infringement of the freedom of expression guaranteed by s.2(b) of the Charter. ... ¶ 36 At this point the Court entered into a s.1 analysis to determine whether or not the restrictions imposed on freedom of expression by s.319(2) were justifiable in a free and democratic society. By a majority of four to three, the Court upheld s.319(2) as constitutional, justified under s.1 of the Charter. The three dissenting judges - La Forest, Sopinka and McLachlin, JJ - were of the view that while the infringement of s.2(b) was established, s.319(2) of the Code did not constitute a reasonable limit upon freedom of expression, failing to meet the proportionality test. ¶ 37 Then in Committee for the Commonwealth of Canada v. Canada, [1991] 1 S.C.R. 139, the Court dealt with airport regulations which prohibited advertising or soliciting at an airport and the actions of the airport manager who ordered the members of the Committee for the Commonwealth of Canada to stop their activities. Those members had gone to Montreal International Airport at Dorval with portable placards, leaflets, and magazines to promote their political goals and recruit members. While some members of the Court found the regulations in question did not violate freedom of expression, others found that they did. All members of the Court found the actions of the airport manager to violate the Committee members' freedom of expression and not to be justifiable under s.1 of the Charter. ¶ 38 That case involved a discussion about limitations of expression on public v. private property, overall stating that historically one does not possess the right to use another's private property as a forum for expression. Per McLachlin J. (as she then was) at p. 228: The matter is less clear where public property is involved. Since the Charter applies to government action, the government must make its property available as a forum for public expression in so far as the guarantee of freedom of expression in s.2(b) of the Charter so requires. This poses squarely the question of whether s.2(b) should be read as guaranteeing access to some or all government property for use as a forum for public expression. That is the issue at the heart of this case.
  23. 23. ¶ 39 In determining the answer to this question each member of the Court reviewed what McLachlin J. termed "the shared values which have historically been associated with the concept of freedom of expression" (p. 229). At the same time, however, she applied the test set out in Irwin Toy, as discussed above, as did most members of the Court, to determine the issue of constitutional protection of expression on a particular state-owned property. In this case she reaffirms that if the purpose of the restriction on expression is content-neutral then a further enquiry is needed to determine whether or not the expression at issue, including its place, time, and manner, promotes one of the purposes underlying the guarantee of freedom of speech. McLachlin J. determined that where the restriction involves state-owned property, that examination will focus on whether the forum's relationship with the particular expressive activity invokes any of the values and principles underlying the guarantee. ¶ 40 The Supreme Court of Canada used the Commonwealth of Canada case to articulate in a broader-than-usual fashion the values behind expression, focussing mostly, but not entirely upon political expression. Some of those comments are relevant to the issues in the instant case. ¶ 41 Lamer C.J. for himself and Sopinka J. stated at pp.157-158: ... In my view, if the expression takes a form that contravenes or is inconsistent with the function of the place where the attempt to communicate is made, such a form of expression must be considered to fall outside the sphere of s.2(b). For example, if a person tried to picket in the middle of a busy highway or to set up barricades on a bridge, it might well be concluded that such a form of expression in such a place is incompatible with the principal function of the place, which is to provide for the smooth flow of automobile traffic. In such a case, it could not be concluded that freedom of expression had been restricted if a government representative obliged the picketer to express himself elsewhere. Accordingly, it is only after the complainant has proved that his form of expression is compatible with the function of the place that the justifications which may be put forward under s.1 of the Charter can be analysed. While the state's main interest is to ensure the effective operation of its property, that is not its only concern; there is, for example, the maintenance of law and order, which is another government objective that might justify certain limitations on s.2(b). For example, the person presiding over a municipal assembly will generally be justified in limiting the time each member has to speak in order to allow everyone a chance to speak in an orderly manner. In my opinion, such a concern comes under s.1 of the Charter, as do many others. ¶ 42 While concluding that there was a limitation in that case upon the respondents' freedom of expression, Lamer C.J. determined that the difficulty lay not with the rules of
  24. 24. the airport but rather with the actions of the airport manager and thus no s.1 justification was possible. At p.164 he stated: In my opinion, the limitation imposed on the respondents' freedom of expression arose from the action taken by the airport manager, a government official, when he ordered the respondents to cease their activities. Although this action was based on an established policy or internal directive, I do not think it can be concluded from this that there was in fact a 'law' which could be justified under s.1 of the Charter. The government's internal directives or policies differ essentially from statutes and regulations in that they are generally not published and so are not known to the public. Moreover, they are binding only on government officials and may be amended or cancelled at will. For these reasons, the established policy of the government cannot be the subject of the test under s.1 of the Charter. 3. Conclusion In short, I conclude that the respondents' activities at the Dorval airport benefit from the protection of s.2(b) of the Charter. The freedom of expression enjoyed by the respondents was limited by the order of the airport manager to cease the said activities. In the absence of a 'limit prescribed by law,' this limitation cannot be justified under s.1 of the Charter. ... ¶ 43 L'Heureux-Dubé J. viewed the issue in Commonwealth of Canada as a "'classic' confrontation between the acknowledged value of political expression and legitimate government interests in imposing certain restrictions on expression generally" (p.166). In her review of scholastic and jurisprudential comment on free speech she stated at pp.174-175: Freedom of expression, like freedom of religion, serves to anchor the very essence of our democratic political and societal structure. As expressed by Jackson J. in West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943), at p.642, '[i]f there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.' Robert J. Sharpe explains the futility of basing this axiom merely upon some yearning for ultimate truth, in 'Commercial Expression and the Charter' (1987), 37 U.T.L.J. 229, at p.236: The essence of the market-place of ideas argument is that control and regulation of expression is intolerable because we can trust no
  25. 25. government to know the truth. Those who purport to legislate the truth invariably turn out to be tyrants. The market-place of ideas argument prescribes an open process precisely because we cannot agree on what is the truth. [Emphasis added.] ¶ 44 And at p. 191: If we examine the traditional standards implemented to evaluate the reasonableness of time, place, and manner restrictions in other jurisdictions (notably the United States), we find that generally the burden of proof lies on the government and the criteria are remarkably similar to the s.1 language. In Canada, no other approach would be consistent with the broad construction of s.2(b). If the government wants to impose time, place, and manner limitations on the ambit of nonviolent expression, it must bear the burden of justifying these encumbrances. Such interdiction may be rational, but the government must substantiate its legitimacy. ¶ 45 She found the rules to be inconsistent with s.2(b) of the Charter and the provisions not to be a reasonable limit under s.1. Gonthier and Cory JJ. agreed with this outcome for slightly different reasons. ¶ 46 In her reasons, McLachlin J. stated at p. 230: The jurisprudence supports the view that the state's property interest in a forum does not give it the absolute right to control expression on that forum. ... ¶ 47 In the Supreme Court's recent decision of R. v. Guignard, [2002] S.C.J. No. 16, 2002 SCC 14, the court unanimously found that a municipal by-law restricting signs violated an individual's right of free expression in the circumstances of that case and was not justified under s.1. Although acknowledging that the by-law was meant to control sign clutter, the court again articulated the need to look behind the purported purpose to determine whether or not the real purpose was to place a limit upon expression. Such a limitation was found. ¶ 48 It is in the context of these comments about freedom of expression that the facts in the instant case must be reviewed. Application of law to facts 1. Protected Speech ¶ 49 The first aspect of the test set out in Irwin Toy is a determination of whether or not the activity at issue may properly be characterized as expression within the meaning of s.2(b) of the Charter. As noted above, expression consists of both content and form; an activity is expressive if it attempts to convey meaning. The trial judge "assumed" that
  26. 26. the appellant's actions had expressive content without deciding the issue. The respondent's position on appeal was that the appellant as a teacher had no right of free expression protected by s.2(b) of the Charter. ¶ 50 The impugned acts in the instant case involve (1) the prohibition, by both the vice-principal and the principal of the school where the appellant was teaching, of the showing of the film, and, consequently, the carrying out of the proposed assignment, and (2) the School Board's ultimate decision that the film could be shown and the project carried out only if the appellant prepared it in a manner that was suitable to the principal and the Superintendent of Programs. ¶ 51 No one attempted to argue that the actions of the principal, vice principal and board were not governmental actions to which the Charter applies. Certainly, the Commonwealth of Canada case indicates that persons acting for government - authorized institutions, even if their actions go beyond carrying out government policy, can be found to breach rights under s.2(b) of the Charter. ¶ 52 In Keegstra, the comments at issue were made by a teacher in a classroom to students with the intention that they "learn" his views and repeat them back to him as the correct answers on exams. This context for his hate propaganda - the classroom where he is in control of students and responsible for their well-being - is never mentioned once in the 155 pages of text of the decision, neither by the majority nor the dissenting judges, except as factual background. Even though context is mentioned as relevant to the analysis being done in the initial stages of the inquiry - whether this is protected speech falling within s.(2)(b) of the Charter - the fact that Mr. Keegstra expressed these views in carrying out his role as a teacher was never raised as a possible reason for denying him a s.2(b) right. ¶ 53 There appears to have been no attempt to argue in that case that teachers do not have a right of expression protected by s.2(b). The question dealt with was whether s.319(2) of the Criminal Code unjustifiably infringed his freedom of expression as guaranteed by s.2(b). ¶ 54 Keegstra, in my view, should be considered decisive on this issue. As stated by Dickson C.J. in that case: [32] ... It is enough that those who publicly and wilfully promote hatred convey or attempt to convey a meaning, and it must therefore be concluded that the first step of the Irwin Toy test is satisfied. ¶ 55 Surely this means, in the context of the case before me, that the appellant was attempting to convey a meaning when he chose the film "Thy Kingdom Come, Thy will be Done" as the catalyst and discussion point for his class project. ¶ 56 The appellant's desire to show the film and to use that film as a catalyst for a project entitled "What Religion means to Different People" is clearly an attempt to
  27. 27. convey a meaning. It is activity that is expressive of the appellant's beliefs in what is an appropriate topic and an appropriate vehicle for his teaching activity. The appellant was attempting, through the film and assignment, to communicate certain information and opinions that would stimulate discussion and challenge his students. To a certain extent, the response to the film - why we are here today - affirms that the film had expressive content. The content - both subject matter and presentation - were what concerned the principal and vice-principal and caused them to prohibit the showing or discussion of the film. ¶ 57 The broad and liberal interpretation of the Charter's freedoms is shown by the great variety of forms of expression that have been held to be encompassed by s.2(b). They include the solicitations of a prostitute (Reference re ss.193 and 195.1(1)(c) supra), advertising to children (Irwin Toy), the language of signs in Quebec (Ford), the hate propaganda of a teacher (Keegstra), airport regulations prohibiting soliciting on airport premises (Commonwealth of Canada), and a municipal sign law (Guignard). ¶ 58 Surely teachers engaged in their profession of teaching can't be found to have no right of free expression, while advertisers do have such a right, and even prostitutes carrying out their profession have such a right. ¶ 59 The decision of this court in Walker v. Prince Edward Island (1993), 107 D.L.R. (4th) 69, affirmed by the Supreme Court of Canada ([1995] 2 S.C.R. 407) does not limit the overall breadth of these s.2(b) cases. In that case, certified general accountants (CGAs) challenged a provision in the Public Accounting and Auditing Act, R.S.P.E.I. 1988, c.P-28, which limited the right to practice public accounting for compensation to members of the Institute of Chartered Accountants. One basis for the challenge was an argument that the provision violated the freedom of expression (s.2(b) of the Charter) rights of the CGA's. This Court found that while the reporting functions of public accounting and auditing may fall within the scope of s.2(b) as "expression," the purpose was not to prohibit an expression of these views but rather to restrict the manner of that expression, i.e. representing themselves as public accountants. The Court then went on to show that in any event such a restriction was justified under s. 1 of the Charter. ¶ 60 The Supreme Court, without explanation, found no restriction to the ss. 2(b), 6 and 7 Charter rights in that case. Without an explanation from that court, it is difficult to articulate the basis for this finding. It may be connected with the fact that a licensing function was involved or that a specific type of profession sought protection. In any event, this finding does not limit the breadth of the Supreme Court's s.2(b) findings generally. Neither does it alter the decision in Keegstra which found a s.2(b) restriction connected with a teacher's views expressed in the classroom. ¶ 61 The respondent on appeal attempted to argue that teachers have no free expression rights and cited a recent U.S. authority. Clearly, U.S. and Canadian constitutional principles are not identical and have developed different methods of dealing with protected freedoms. The statements of the 7-6 majority in Boring v. Buncombe County Board of Educational et al (1998), 136 F. 3d 364 (USA), cannot
  28. 28. detract from the large and liberal interpretation fostered by our Supreme Court in dealing with these freedoms. ¶ 62 One obvious reason for the difference between the United States and Canadian jurisprudence is the existence of s.1 of the Charter which enables a justification of a limitation on our Charter freedoms: 1. 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. The lack of any such ability to place a limit on a freedom in the U.S. has required a completely different development of the law. In the U.S. the right must contain within it any limitations that are considered socially justifiable, because there is no s.1 equivalent to allow for a reasonable limitation on the right, once the right is found to exist. ¶ 63 With this in mind, it is interesting to note the cases brought forward by the appellant from the U.S. regarding free speech and teachers: Shumate v. Board of Education of County of Jackson 478 F. 2d 233 (1973) (U.S.C.A. 4th Circuit); Parducci v. Ruthland, 316 F. Supp. 352 (1970) (U.S. District Court); Keefe v. Geanokos, 418 F. 2d 359 (1969) (U.S.C.A., 1st Circuit); and Pickering v. Board of Education, 391 U.S. 563 (1968), (U.S.S.C.). The latter case involved a teacher who was dismissed because of publication of a letter criticizing the board of education and superintendent of schools. Shumate involved an untenured teacher whose contract was not renewed, apparently because of his controversial activities with an education association. Parducci involved a teacher who was dismissed because of an assignment she gave to her class that school officials disagreed with. Keefe relates to a tenured teacher whose employment was threatened for use of what was termed an "offending word" in class. In Keefe and Parducci the school officials took the position they knew best what was appropriate and inappropriate in the classroom. Courts in all cases affirmed that teachers have both an inherent right of free speech, a First Amendment right in the United States, as individuals and a right of academic freedom derived from that right of free speech. In Keefe, Adrich C.J. stated at pp.361-362: Hence the question in this case is whether a teacher may, for demonstrated educational purposes, quote a 'dirty' word currently used in order to give special offense, or whether the shock is too great for high school seniors to stand. If the answer were that the students must be protected from such exposure, we would fear for their future. We do not question the good faith of the defendants in believing that some parents have been offended. With the greatest of respect to such parents, their sensibilities are not the full measure of what is proper education. ¶ 64 He then went on to deplore the general chilling effect of rigorous censorship, referring at p.362 to the following quotation:
  29. 29. 9. Such unwarranted inhibition upon the free spirit of teachers affects not only those who, like the appellants, are immediately before the court. It has an unmistakable tendency to chill that free play of the spirit which all teachers ought especially to cultivate and practice ... Frankfurter J. concurring, in Wieman v. Updegraff, 1952, 344 U.S. 183, 194, 195, 73 S.Ct. 215, 221, 97 L.Ed. 216. ¶ 65 In Parducci Johnson C.J. in the decision of the court states at pp.354-355: [1] That teachers are entitled to First Amendment freedoms is an issue no longer in dispute. 'It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.' Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 506, 89 S.Ct. 733, 736, 21 L.Ed. 2d 731 (1969); see Pickering v. Board of Education, etc., 391 U.S. 563, 568, 88 S.Ct. 1731, 20 L.Ed. 2d 811 (1968); Pred v. Board of Public Instruction, etc., 415 F. 2d 851, 855 (5th Cir. 1969). These constitutional protections are unaffected by the presence or absence of tenure under state law. McLaughlin v. Tilendis, 398 F. 2d 287 (7th Cir. 1968); Johnson v. Branch, 369 F. 2d 177 (4th Cir. 1966), cert. denied, 385 U.S. 1003, 87 S.Ct. 706, 17 L.Ed. 2d 542 (1967). [2] Although academic freedom is not one of the enumerated rights of the First Amendment, the Supreme Court has on numerous occasions emphasized that the right to teach, to inquire, to evaluate and to study is fundamental to a democratic society. In holding a New York loyalty oath statute unconstitutionally vague, the Court stressed the need to expose students to a robust exchange of ideas in the classroom: Our nation is deeply committed to safeguarding academic freedom, which is of transcendent value to all of us and not merely to the teachers concerned. That freedom is therefore a special concern of the First Amendment, which does not tolerate laws that cast a pall of orthodoxy over the classroom. * * * The classroom is peculiarly the 'marketplace of ideas.' Furthermore, the safeguards of the First Amendment will quickly be brought into play to protect the right of academic freedom because any unwarranted invasion of this right will tend to have a chilling effect on the exercise of the right by other teachers. Cf. Wieman v. Updegraff, 344 U.S. at 194, 195, 73 S.Ct. 215 (Frankfurter J. concurring); Pickering v. Board of Education, etc. supra 391 U.S. at 574, 88 S.Ct. 1731.
  30. 30. [3] The right to academic freedom, however, like all other constitutional rights, is not absolute and must be balanced against the competing interests of society. This Court is keenly aware of the state's vital interest in protecting the impressionable minds of its young people from any form of extreme propagandism in the classroom. ... ¶ 66 This last paragraph relates to that part of the analytical process analogous to the Canadian s.1 Charter justification for a limitation of a guaranteed freedom. With little change, most of these comments could be found applicable to the Canadian Charter right of freedom of expression as it relates to teachers. ¶ 67 If part of the value behind freedom of expression as set out in s.2(b) includes a consideration of the importance of that expression to those who are the recipients of the content (see: Irwin Toy), then the school context raises special issues. This becomes partially a right of students in a democratic society to have access to free expression by their teachers - encouraging diversity, critical thinking and vigorous debate. While Boring, supra does not take that same view, there are some factors to consider. First, the majority decision refers to the case as the first one to deal with the issue of a teacher's free speech right to participate in curriculum development. Second, the majority of 7 judges was opposed by a minority of 6 judges who felt there was such a free speech right in teachers. ¶ 68 The fact that the appellant was not a tenured teacher has no relevance to this analysis. The right of expression exists within each person who is attempting to convey some meaning by his or her activity. The official status of such a person can have no relevance at this stage of the analysis. The appellant attempts to argue that the failure to renew his contract is evidence of breach of his right of freedom of expression. He bases his view in part on comments in Shumate. There the court referred to a then-recent Supreme Court decision and stated at p.234: ...As it was with Sindermann, the critical question here is whether the board's decision not to renew Shumate's contract was made in retaliation for his exercise of his free speech rights. The absence of any contractual or tenure right does not affect Shumate's constitutional claims. ... ¶ 69 In Shumate there does appear to be a connection between the non-renewal of his contract and the breach of his right of free expression; there was no other action taken by the school officials that would constitute a limitation on Shumate's free speech right. School officials did nothing immediately but then failed to renew his contract. The Court found a cause of action in these circumstances: a violation of Shumate's constitutional right of free expression. ¶ 70 In the instant case, however, the prohibition against showing the film and carrying out the project was the limitation. The issue of whether or not the appellant's failure to obtain employment with the Board the following year was in retaliation for his defence of his free expression rights then becomes an issue relating to damages.
  31. 31. ¶ 71 The respondent's position that a teacher can have no right of free expression because control of schools must rest in principals, whether they act reasonably or not, is tenable neither in logic nor in law. The argument that if teachers are found to have such a right there will be chaos in the school system, because all principals' decisions will end up being decided by the courts, is also not tenable. Even the appellant acknowledged that within the structure of the school system there must be rules and regulations, curriculum and programming guidelines. What he was arguing for was a reasonable approach. If these rules or regulations limited free expression, they would be justifiable under s.1 of the Charter. Thus, only actions by school authorities that were alleged to go beyond any s.1 justifiable limitations would be challengeable. This is a rational approach to the balance between rights and limitations thereon. ¶ 72 The respondent's position, that there would be no resort to s.1 because to allow for a right of free expression in teachers would totally disrupt the school system, is extreme and an attempt to deny a Charter right out of fear that to acknowledge the right would be to acknowledge the requirement that limitations on it must be reasonable and cannot be arbitrary. This is not a basis for denying a clear Charter right of freedom of expression. There is simply no foundation for an argument that because a teacher is under the supervision and direction of a principal, he has no free expression rights - everything he does is subject to control by the principal, whether reasonable or not. The Supreme Court has found that even where laws are meant to "supervise" or "direct" or "limit" actions of Canadians, those laws which limit rights of expression must be justified under s.1. (See: Irwin Toy, Reference re ss. 193 and 195.1(1)(c) , Keegstra.) Surely principals don't have authority greater than the law. ¶ 73 As well, nothing in Ross v. New Brunswick School District No. 15, [1996] 1 S.C.R. 825, [1996] S.C.J. No. 40, suggests that a teacher has no expressive rights in his or her capacity as a teacher, or that restrictions on those rights don't need to be justified pursuant to s.1 of the Charter. The facts of Ross, and the "poisoned" school environment found in that case, are inapplicable to the case before me. As for the concerns in Ross about the social values teachers are expected to impart, the facts of the instant case suggest that the appellant was attempting to teach the critical thinking and analytical skills essential to citizens in any democracy. His choice of religion as a subject for this process was not in and of itself a discriminatory or negative act. He was not attempting to teach any particular religious view. He was dealing with religion as an important element in society, one representative of our society's diversity, and in doing so was teaching in a manner consistent with the approved curriculum. As he noted, the story of Anne Frank had been the subject of an earlier project and the subject of religion was in fact found in the textbooks he was using. The textbook Les Maritimes: Trois Province á Découvrir includes in Chapter Three a discussion about the role and influence of religious institutions in the Maritimes. The text Maritimes: Tradition, Challenges & Change includes as part of Chapter Three, "Our Changing Social Institutions: The Church in Prince Edward Island." ¶ 74 The film the appellant sought to use as a catalyst for his project did focus upon fundamentalist religious groups. It was illustrative of a number of social issues. The
  32. 32. three members of the provincial Junior High Language Arts Committee all agreed that the assignment was appropriate for the appellant's class. They suggested there were some concerns about the way it was presented but noted that different teachers handle matters differently. As reported in the Minutes of the May 19, 1988 Curriculum Committee meeting: Mary Thomas provided comments as a member of the Junior High Curriculum Committee, with regards to the assignment only, not the video. She indicated her involvement based on presentations made by Richard Morin and her understanding of the language arts curriculum for junior high, and stated her feeling that the assignment was appropriate based on the skills it asked the students to exercise - interview, research, and critical thinking - as used in the Context and Bridges components of the junior high program. It was Ms. Thomas's understanding that the students didn't receive any explanatory comments at the time and that the assignment was given verbally, and as she didn't hear from anyone who actually heard the assignment, she would not make a judgement on that. Ms. Thomas indicated that the methodology of the question itself are[sic] things required of Grade 9 students in language arts. On the question of whether it fit into the language arts curriculum, Ms. Thomas stated that it was not offensive and neither made a judgement against any one religion or promoted any one religion. She indicated that she could not say whether the teacher went against or promoted any religion as she had no evidence to base it on. The question did not ask the individual student to express what they themselves felt about religion, it was a survey. Ms. Thomas stated that the assignment did fit in with the language arts curriculum, as it asked the students to use questioning skills and critical thinking about issues, and to take comments and information to use as a base for a written report. Ms. Thomas indicated that she did not address her comments towards the video, people involved or how the situation arose or was handled. ... Ms. Steeves [another member of the provincial Junior High Language Arts Curriculum Committee] felt the assignment was appropriate given the topics discussed previously in the classroom. She also felt the assignment was appropriate given the type of student in the Grade 9 class as the average was 87.5%. She felt the assignment would be very suitable for that type of student. She stated that the actual question of the assignment was in no way a judgement statement, simply a question. Ms. Steeves indicated that she did not know what the teacher said as introduction to the video, but she regarded the video as complex. She felt there were no right or wrong impressions of the video, it would depend on everyone's different viewpoints. She indicated a need for the students to discuss the video from their own point of view, and hear their peer questions, as well as their
  33. 33. teacher's questions on the video. She felt they were central to the video and should have happened - it never should have been cut off. Ms. Steeves understood the video was used as a catalyst, and having no discussion would raise many questions. The fact that students were not allowed to ask questions would only increase their questions. ... With regards to planning, Ms. Steeves indicated that it is not a static thing. You cannot judge someone on how quickly or slowly they plan. ¶ 75 The appellant produced case law and made extensive arguments about the need, in a democratic society, to protect teachers' freedom to teach in a manner that stimulates and encourages the exchange of opinions and ideas. Such values are inherently within the rationale behind the Supreme Court's liberal approach to the interpretation of the Charter's scope of protected speech, and are shown to a certain extent in the Supreme Court's comments in the Commonwealth of Canada. However, those comments and authorities are most relevant to a s.1 analysis and there is none in the case before me. ¶ 76 In conclusion, as in Irwin Toy, the plaintiff/appellant's activity is not excluded from the sphere of conduct protected by freedom of expression. 2. Purpose or Effect ¶ 77 Where the activity at issue is classified as protected speech under the first part of the test in Irwin Toy, the second part of the test requires a determination of whether or not the purpose or effect of the impugned act was to restrict the appellant's freedom of expression. Purpose ¶ 78 As to whether or not the intent of the impugned actions was to restrict the expression of the appellant, the respondent argues that the intent was rather to ensure that the authorized teaching program was followed, and that planning, preparation, and relevance objectives were met. An argument was also made that the principal has a responsibility to "protect" the students, so control over content is essential. ¶ 79 If the latter argument is to prevail, then there is an implicit admission that the direct purpose of the prohibition was to control the content the appellant wished to express - simply justified by the need to protect students. ¶ 80 Again, I point out that the respondent's counsel on appeal made it unequivocally clear to the court that the respondent's position did not in any way rely upon s.1. The respondent stated that there was no need for a s.1 justification so none was being put before the court. As a result, the analysis before the court is whether limitations were
  34. 34. placed upon the free expression rights of the appellant, not whether the limitations on his freedom of expression were justified. ¶ 81 With respect, it appears that the respondent and to some extent the trial judge, have misunderstood the Supreme Court's views on how one determines whether the purpose of an impugned act was a restriction on expression. The Court has warned against attempts to clothe the intent to control content in the garb of some higher purpose. The Court has more than once noted that all governmental action will be said to have a purpose other than restriction of expression. But if the primary purpose is in reality a restriction on expressive activity, then the other "higher purpose" must be viewed as part of a justification under s.1. ¶ 82 Once again I note the numerous and varied cases in which the Supreme Court has found a purpose of restricting expression requiring a justification under s.1. While restricting the rights of prostitutes to express themselves by offers of their services may have many socially valuable purposes, the primary intent of legislation against solicitation is to prevent prostitutes from making those offers, i.e. prevent them from expressing their offers (Reference re ss. 193 and 195.1(1)(c)). The government could justify the restriction under s.1 but could not establish those social values as the primary purpose of the law. With respect to commercial free speech - also protected under s.2(b) - in Irwin Toy the argument that the protection of children was the purpose of the laws did not prevail. From an analytical perspective, the Court found the purpose was to restrict what the advertisers wished to express. The reasons behind that restriction were appropriate for a s.1 analysis, not a determination of the purpose. The same analysis explains Keegstra. The purpose of the law was to prevent a person from expressing the views he expressed, i.e. limiting his right of free expression. The values behind - reasons for - the law were part of the s.1 analysis. ¶ 83 There is a suggestion throughout the Board's presentation that an employee has no freedom of expression rights, or that as long as an employer/supervisor takes the position that he has some other reasons for limiting expression then the "purpose" of the limitation is not a restriction on expression. ¶ 84 The case law in this area shows a very broad and liberal interpretation of the free expression right. While the "secondary" purpose of a rule/act may often be of a more general nature, an act or rule that tries to limit what can be expressed has as its primary purpose a restriction on what can be expressed and so is in breach of s.2(b). ¶ 85 The rationale for this view of the law is clear. Because of the existence of a mechanism for justification in s.1 of the Charter, there is no good policy reason to refer to the justification for a limitation on expression in the first part of the analysis. If what you want to do or say has expressive content and the rule/act in opposition is intended to prevent or limit your ability to do or say what you want, then this is a free expression restriction no matter what the "higher justification." The "higher justification" may save the rule/act from being a breach of your s.2(b) right if it meets the requirements of s.1.
  35. 35. ¶ 86 That the purpose and intent of the principal and vice-principal in the instant case was to limit the content of what was expressed by the appellant in the classroom is clear from this analysis. Various comments in the evidence produced at trial reaffirm that purpose. For example, the notes of the Curriculum Committee meeting of May 17, 1988, report in detail the principal's (George MacDonald's) view of the incident approximately five weeks after it had occurred: Mr. MacDonald questioned the purpose of the assignment and whether Mr. Morin could justify the assignment ... Mr. MacDonald informed Mr. Morin that he was not satisfied and did not feel the assignment was age appropriate and that the topic was personal, concerning the parents, the students and their God, not Mr. Morin. ... ...The assignment caused anxiety in students and parents, and two students went home in tears. Mr. MacDonald felt the assignment was sensitive in nature and a number of parents registered their concerns. Parents did not wish alien influences outside the authorized course of studies imposed on the students. ... Mr. MacDonald stated that he had seen the video and had nothing personal against it but the students didn't appear to understand it. People across the community and children of fundamentalists were offended by the film. ... ... In response to a question, Mr. MacDonald indicated that Mr. Morin teaches language arts to 61 students, and letters were received from 8 parents [two in support]. Mrs. Duffy asked whether the curriculum and assignments in a school should reflect the values in the community and Mr. MacDonald agreed that parents have a role and a right in terms of what is being taught. He considers the school community to include the students and the parents. His initial reaction was that the parents wanted the assignment withdrawn. ... Mrs. Scott stated that in the program, teachers are recommended to use other outside services. Mr. MacDonald indicated he understood this, but he thought the series authorization given [sic] teachers ample opportunity. Mr. MacDonald felt that Mr. Morin went beyond the parameter of the program in terms of research skills.

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