Kempling v. British Columbia College of Teachers
Christopher Stephen Myles Kempling, appellant
The British Columbia College of Teachers, respondent
The B.C. Civil Liberties Association, British
Columbia Teachers' Federation, Canadian Religious
Freedom Alliance and BC Public School Employer's
 B.C.J. No. 1288
2005 BCCA 327
Vancouver Registry No. CA031628
British Columbia Court of Appeal
Vancouver, British Columbia
Donald, Huddart and Lowry JJ.A.
Heard: April 21 and 22, 2005.
Judgment: June 13, 2005.
Administrative law — Judicial review and statutory appeal — Standard of review —
Administrative law — Judicial review and statutory appeal — Standard of review —
Reasonableness — Appeal from decision by Supreme Court of British Columbia Judge
reported at  7 W.W.R. 741 dismissed.
Constitutional law — Canadian Charter of Rights and Freedoms — Reasonable limits.
Constitutional law — Canadian Charter of Rights and Freedoms — Equality rights.
Constitutional law — Canadian Charter of Rights and Freedoms — Fundamental
freedoms — Freedom of conscience and religion — Freedom of Expression — Hate
literature — Canadian Charter of Rights and Freedoms, ss. 1, 2(a), 2(b), 15.
Appeal by Kempling from a decision of the British Columbia Supreme Court
dismissing his appeal from a decision of a Hearing Panel of the British Columbia College
of Teachers finding him guilty of conduct unbecoming a member of the College, and
suspending his teaching certificate for 1 month. Kempling was cited for professional
misconduct respecting an article and letters he wrote expressing his views on
homosexuality, which were published in a local newspaper. In the article and letters
Kempling associated homosexuals with immorality, abnormality, perversion and
promiscuity. The Panel found the writings to be discriminatory, and that Kempling failed
to accommodate the core values of the education system. The Council of the College
adopted the Panel's recommendations. Kempling's appeal to the British Columbia
Supreme Court was dismissed. Kempling submitted that the court erred in applying a
reasonableness standard, and in concluding that his Charter rights under ss. 2(a), 2(b) and
15 were not infringed or that if they were, the infringement was saved by s. 1.
HELD: Appeal dismissed. The court made no error that undermined its upholding
the administrative decisions. It was not open for Kempling to raise s. 2(a) of the Charter
as he failed to appear before the Panel at the first hearing and laid no evidentiary basis
upon which an infringement of his religious freedom could be assessed. While, the
College's one-month suspension of Kempling's teaching certificate constituted a violation
of his s. 2(b) rights, the violation was demonstrably justified, pursuant to s. 1. The court
did not err in finding that Kempling's s. 15 rights had been infringed.
W.S. Clark: Counsel for the Appellant
B.A. Laughton, Q.C.: Counsel for the Respondent
E.M. Myers, Q.C. and R.D.W. Dalziel: Counsel for the B.C. Civil Liberties Association
J. Rogers: Counsel for B.C. Teachers' Federation
K.L. Boonstra and D.M. Brown: Counsel for Canadian Religious Freedom Alliance
J.C. Anderson: Counsel for BC Public School Employers' Association
The judgment of the Court was delivered by
¶1 LOWRY J.A.:— This appeal raises a question of the administrative and
constitutional validity of disciplinary proceedings taken against a teacher in the
provincial school system for statements made publicly about homosexuality.
¶2 Christopher Kempling taught at one of the four secondary schools in the Quesnel
School District. He is both a teacher and a registered clinical counsellor of long standing.
He has, since 1980, been a member of the British Columbia College of Teachers
("BCCT") which is the statutory body empowered to regulate the teaching profession in
¶3 In the spring of 2001, Mr. Kempling was cited for professional misconduct arising
out of an article and letters to the editor he wrote expressing his views on homosexuality
which were published in a local newspaper between 1997 and 2000, in which he
associated homosexuals with immorality, abnormality, perversion and promiscuity,
prompting heated responses that branded his statements as discriminatory. A year later,
the citation was heard by a Hearing Panel of the Disciplinary Committee of the BCCT.
Mr. Kempling chose not to appear. The Panel found his writings to be discriminatory,
demonstrating that he was not prepared to accommodate the core values of the education
system. One such value is non-discrimination, which the Panel said includes the
recognition of homosexuals' rights to equality, dignity, and respect. The Panel quoted
from Abbotsford School District No. 34 Board of School Trustees v. Shewan (1987), 21
B.C.L.R. (2d) 93 at 97 (B.C.C.A.), as quoted in Ross v. New Brunswick School District
No. 15,  1 S.C.R. 825 at para. 44, as indicative of the consequences to be inferred:
The reason why off-the-job conduct may amount to misconduct is that
a teacher holds a position of trust, confidence and responsibility. If he or
she acts in an improper way, on or off the job, there may be a loss of public
confidence in the teacher and in the public school system, a loss of respect
by students for the teacher involved, and other teachers generally, and there
may be controversy within the school and within the community which
disrupts the proper carrying on of the education system.
¶4 Mr. Kempling was found guilty of conduct unbecoming a member of the BCCT.
¶5 A year later, in the spring of 2003, the Panel convened a hearing to determine the
disciplinary measure that ought to be imposed. Mr. Kempling appeared with counsel. The
Panel concluded that Mr. Kempling's teaching certificate should be suspended for one
month, that notice of such be given to various licensing authorities, and that his name and
a summary of the case be published to the BCCT membership and the public.
Subsequently, by majority, the Council of the BCCT (the "Council") adopted the Panel's
¶6 Mr. Kempling appealed from the two decisions of the Panel and the decision of
the Council to the Supreme Court of British Columbia. He contended that there was
procedural unfairness on the part of the Panel and that there was error both in the
conclusion that he was guilty of conduct unbecoming a member of the BCCT and in the
penalty imposed. He also contended that his rights under the Canadian Charter of Rights
and Freedoms had been infringed, specifically his rights under ss. 2(a), 2(b), 7 and 15.
The appeal was heard by Mr. Justice Holmes and dismissed early last year:  7
W.W.R. 741, 27 B.C.L.R. (4th) 139, 2004 BCSC 133.
¶7 This appeal is taken from his judgment. Mr. Kempling maintains that Holmes J.
erred in some of the conclusions he reached. Various interested parties have been granted
leave to intervene.
¶8 With respect to the Panel's finding that Mr. Kempling was guilty of conduct
unbecoming a member of the BCCT, and the penalty imposed, Mr. Kempling contends
that Holmes J. applied the wrong standard of review and erred in any event in upholding
the administrative decisions. Mr. Kempling maintains that the standard of review is one
of correctness, not reasonableness as Holmes J. determined. He then says that Holmes J.
failed to recognize that, through overly broad reasoning, the Panel erred in finding him
guilty on the basis that his writings were discriminatory amounting to unprofessional
conduct and then erred in inferring that some measure of harm would be a consequence
of what he had written. Mr. Kempling claims that, given the broad range of sanctions
open to the BCCT and what is an unblemished career record of community service as a
teacher and counsellor, it was simply wrong to order any suspension of his teaching
¶9 With respect to the infringement of his Charter rights, Mr. Kempling contends that
Holmes J. was in error in concluding as he did that his rights under ss. 2(a), 2(b) and 15
were not infringed and that if they were, the infringement was saved by s. 1.
¶ 10 For the reasons that follow, I would dismiss the appeal. I consider that Holmes J.
was substantially right in reviewing the administrative decisions on a standard of
reasonableness save that I consider the Panel's conclusion that Mr. Kempling's writings
were discriminatory was to be reviewed on a standard of correctness. That said, however,
Holmes J. made no error, in my view, that undermines his upholding the administrative
decisions. Further, I do not consider it was open to Mr. Kempling to raise s. 2(a) of the
Charter and, while on this appeal the BCCT concedes that, contrary to what Holmes J.
concluded, Mr. Kempling's s. 2(b) rights were infringed by the imposition of the
suspension of his teaching certificate, I do not consider the infringement to have been
beyond what can be justified in a free and democratic society. I do not consider that Mr.
Kempling's s. 15 rights were infringed.
¶ 11 I begin by addressing the administrative grounds of appeal Mr. Kempling raises
with respect to the decisions of the Panel and the Council: the standard of review, the
conclusion that he was guilty of conduct unbecoming a member of the BCCT, and the
penalty imposed. I then proceed to address the Charter arguments that he raises.
The Standard of Review
¶ 12 An outline of the reasoning employed by Holmes J. with respect to the standard
of review is necessary to an understanding of Mr. Kempling's contention that the wrong
standard was applied to the administrative decisions.
¶ 13 Holmes J. recognized that there were three separate administrative decisions at
issue in this case: 1) the Hearing Panel's finding of conduct unbecoming; 2) the Hearing
Panel's recommendations as to penalty; and 3) the Council's decision to adopt the Panel's
recommendations. In Holmes J.'s view, it was inappropriate to treat all three decisions
together due to their separation in time, and the different subject matter at issue.
Accordingly, he decided to review the Panel's finding of conduct unbecoming and the
Council's ultimate decision as to the appropriate penalty separately, and on the basis of
individual standards of review.
a) Conduct Unbecoming
¶ 14 To determine the standard of review, Holmes J. applied the pragmatic and
functional approach set out in Pushpanathan v. Canada (Minister of Citizenship and
Immigration),  1 S.C.R. 982, and Dr. Q v. College of Physicians and Surgeons of
British Columbia,  1 S.C.R. 226. There are four factors to be considered when
applying this approach:
1. the presence or absence of a privative clause, or a statutory right of
2. the relative expertise of the administrative decision-maker vis-à-vis
the court, with regard to the specific issue in question;
3. the purpose of the statute as a whole and of the provision in
4. the nature of the problem, i.e. whether it is a question of fact, law, or
mixed fact and law.
¶ 15 In applying the approach to the Hearing Panel's finding of conduct unbecoming,
Holmes J. found that as there was no privative clause in the Teaching Profession Act,
R.S.B.C. 1996, c. 449 and, as there was a broad statutory right of appeal pursuant to s. 40
of the Act, the first factor militated against showing deference for the decision of the
¶ 16 As to the second factor, Holmes J. concluded that the Panel's decision involved
the setting and enforcement of standards of professional responsibility. The Panel was
specialized in this type of decision, and had a greater degree of expertise relative to the
courts. The second factor, therefore, suggested greater deference should be shown to the
¶ 17 In relation to the third factor, Holmes J. noted that the purpose of the Act as a
whole, as set out in s. 4, is to set and enforce its own standards of training, professional
conduct, and competence for the teaching profession in British Columbia. This requires a
balancing of competing interests and involves consideration of multiple policy objectives.
Viewing the Act as a whole indicated a high degree of deference. However, the specific
sections at issue, namely ss. 28, 30 and 34, are concerned with adjudicating claims of
professional misconduct and conduct unbecoming. This is a quasi-judicial function and
thus suggests a lesser degree of deference. On the whole, Holmes J. concluded that the
third factor was neutral and did not militate for or against a particular standard of review.
¶ 18 There were two questions the Panel had to consider in their finding of conduct
unbecoming: first, whether Mr. Kempling's writings were discriminatory; and, second,
whether the capacity and context in which he made them amounted to conduct
unbecoming a member of the BCCT. Holmes J. concluded that the first question was a
question of fact, and the second was a question of mixed fact and law. He saw the
determination of both questions, however, to be fact driven and dependent upon
recognition of the public interest, and on the specialized expertise and understanding of
the role of a teacher. As a result, the fourth factor suggested considerable deference
should be shown to the Panel's decision.
¶ 19 In light of the four factors set out in the pragmatic and functional approach,
Holmes J. concluded that the appropriate standard of review was that of reasonableness
simpliciter. The question he was to determine, therefore, was whether the Panel's findings
and conclusions had some basis in the evidence and whether the reasons on the whole
were tenable support for the decision.
¶ 20 Mr. Kempling contends that Holmes J. erred in his application of the second,
third and fourth factors of the pragmatic and functional approach. As to the second factor,
he says that the Panel's finding of conduct unbecoming clearly impacts his constitutional
rights, in that it curtails his right to freedom of expression, conscience and religion. The
Panel's finding also addresses human rights issues in that it was concerned with allegedly
discriminatory expression. As set out in TWU v. British Columbia College of Teachers,
 1 S.C.R. 772, the BCCT is not expert in matters concerning freedom of religion,
or in balancing competing constitutional rights. Further, the BCCT is not well positioned
to adjudicate matters which engage the Charter, or which involve human rights issues.
Accordingly, and contrary to Holmes J.'s conclusion, Mr. Kempling says that the second
factor militates against deference to the Panel.
¶ 21 As regards the third factor, Mr. Kempling contends that the dispute-settlement
mechanism provided for in the Act is not of a specialized nature, and the members of the
Panel do not maintain any special qualifications which would qualify them as experts.
Further, the Panel is not engaged in the balancing of different considerations, but rather is
concerned with ensuring the quality of its members as teachers. Finally, the BCCT plays
only a minor role in the development of education policy. Mr. Kempling maintains that
on the strength of the Supreme Court's decision in Pushpanathan these factors suggest
that no deference should be afforded the Panel.
¶ 22 Finally, Mr. Kempling contends that Holmes J. erred in finding that the issue of
whether his writings were discriminatory was a question of fact. In TWU, the Supreme
Court concluded that the question of whether the University was engaged in
discriminatory practices was a question of law. Consequently, the issue of the character
of the writings in this case is also a question of law.
¶ 23 On Mr. Kempling's submission, the four factors all suggest that deference should
not be shown to the Panel and indicate correctness as the appropriate standard of review.
¶ 24 In my view, Holmes J.'s analysis of the pragmatic and functional approach as it
relates to the Panel's finding of conduct unbecoming was correct. The Panel certainly has
greater expertise than the court as to what amounts to conduct unbecoming a member of
the BCCT. This determination, though one of mixed fact and law, was "fact-intensive",
and engaged the teaching profession's expertise and understanding of the role of a
teacher. In the result, reasonableness simpliciter is an appropriate standard on which to
review the Panel's determination that Mr. Kempling's conduct was unbecoming a member
of the BCCT.
¶ 25 However, there is, in my view, merit in Mr. Kempling's contention when
considered with respect to the Panel's determination that his writings were
discriminatory. Holmes J. concluded that was a question of fact. The Supreme Court
addressed this issue in TWU and said, at paragraph 18:
We mentioned earlier that a lower standard had been applied by the
Court of Appeal on the findings of the BCCT with regard to the existence
of discriminatory practices and, if they are present, whether they have
created a perception that the BCCT condones this discriminatory conduct.
The lower standard was also applied to the BCCT finding that the school
system has or has not created a risk that graduates of TWU will not provide
a discrimination-free environment for all students. We do not believe that
different standards should apply in these circumstances. The existence of
discriminatory practices is based on the interpretation of the TWU
documents and human rights values and principles. This is a question of
law that is concerned with human rights and not essentially educational
¶ 26 A determination that Mr. Kempling's writings were discriminatory must be based
upon an analysis of those writings in light of human rights principles. That issue is a
question of law. Further, in TWU, the court stated at paragraph 17 that BCCT's "expertise
does not qualify it to interpret the scope of human rights nor to reconcile competing
rights". As a result, I am of the view that the Panel's conclusion that Mr. Kempling's
writings were discriminatory must be addressed separately from their ultimate finding of
conduct unbecoming, and must be reviewed on a standard of correctness.
¶ 27 Holmes J. concluded that the Council's decision regarding the imposition of a
one-month suspension should be reviewed on a reasonableness simpliciter standard. Mr.
Kempling does not take issue with that conclusion.
Conduct Unbecoming a Member of the BCCT
¶ 28 It appears to be common ground that whether the Panel was correct in concluding
that Mr. Kempling was guilty of conduct that was unbecoming a member of the BCCT as
Holmes J. concluded turns on a consideration of essentially two questions. The first is
whether Mr. Kempling's published writings were discriminatory; the second is whether
they caused any harm.
a) The discriminatory nature of the writings
¶ 29 Holmes J. found that Mr. Kempling's writings provided ample evidence that
could reasonably support a finding that he had made and published discriminatory and
derogatory statements against homosexuals. He based this conclusion on the fact that in
his writings Mr. Kempling consistently associated homosexuals with immorality,
abnormality, perversion and promiscuity. Holmes J. concluded that such writings could in
themselves be discriminatory and did not need to be directed against a particular
¶ 30 Mr. Kempling contends that Holmes J. erred in his conclusion and submits that,
when viewed as a whole, his writings merely express moral disagreement with
homosexuality on the basis of deeply held religious convictions. Further, the writings
often express tolerance and respect for homosexuals, and stress the importance of
engaging and listening to those on both sides of the debate. The fact that some individuals
felt that Mr. Kempling's writings were derogatory does not make them discriminatory.
Mr. Kempling was engaged in a public debate about a controversial issue and it is only
natural that some would disagree with his point of view.
¶ 31 One of the intervenors, the Canadian Religious Freedom Alliance (the
"Alliance"), supports Mr. Kempling's contention. Holmes J., it is argued, neglected the
clear political and religious dimensions of the writings and, in labelling them
discriminatory, effectively cut off debate of an important and contentious issue. It is
inevitable, the Alliance says, that in debates about moral issues those on either side will
judge and often denounce particular actions and behaviours of others. Such debate will
often be emotional and controversial. However, labelling it as discriminatory merely
because it is critical of the actions or lifestyles of others unjustifiably narrows the field of
legitimate moral, religious, and political discussion. The Alliance contends that to brand
Mr. Kempling's statements as unacceptably discriminatory threatens to undermine a
vibrant notion of pluralism which is central to a functioning democracy. In this regard,
the Alliance relies on the Supreme Court's decision in Chamberlain v. Surrey School
District No. 36,  4 S.C.R 710 and, in particular, upon Gonthier J.'s comments at
Beyond this, nothing in Vriend v. Alberta,  1 S.C.R. 493, or the
existing s. 15 case law speaks to a constitutionally enforced inability of
Canadian citizens to morally disapprove of homosexual behaviour or
relationships: it is a feeble notion of pluralism that transforms "tolerance"
into "mandated approval or acceptance". In my view, the inherent dignity
of the individual not only survives such moral disapproval, but to insist on
the alternative risks treating another person in a manner inconsistent with
their human dignity: there is a potential for a collision of dignities.
¶ 32 The Alliance seizes on Gonthier J.'s notion that an overly broad conception of
discrimination may effectively sterilize the political landscape, leaving very little room
for dissenting views. This it says will have particularly deleterious effects in the realm of
moral and religious discourse, where there is often little room for compromise.
¶ 33 There is, however, a second critical concept referred to by Gonthier J. that is
neglected in the intervenor's argument: the "inherent dignity of the individual". A central
tenet of democratic society is the belief that all people are equally deserving of respect,
concern and consideration, and this belief flows from a recognition that each individual is
inherently valuable. Statements critical of a person's way of life or which denounce a
particular lifestyle are not in themselves discriminatory. In my view, it is only when these
statements are made in disregard of an individual's inherent dignity that they become so.
To hold an individual in contempt or to judge them, in the words of Abella J.A., as she
then was, in R. v. Carmen M. (1995), 23 O.R. (3d) 629 at 633, "based not on their actual
individual capacities, but on stereotypical characteristics ascribed to them because they
are attributed to the group of which the individuals are a member", is to treat that
individual in a manner which is not consonant with their inherent dignity. Statements and
actions based on such judgments are the hallmark of discrimination.
¶ 34 Viewed in this light, it is clear that many of Mr. Kempling's published statements
were discriminatory. The following are examples:
Gay people are seriously at risk, not because of heterosexual attitudes, but
because of their sexual behaviour, and I challenge the gay community to
show some real evidence that they are trying to protect their own
community members by making an attempt to promote monogamous, long
lasting relationships and to combat sexual addictions. [10 August 1997,
Quesnel Cariboo Observer.]
We cannot criticize the homosexual community for irresponsible behaviour
when there is no legal requirement for them to behave responsibly. [12
April 2000, Quesnel Cariboo Observer.]
I refuse to be a false teacher saying that promiscuity is acceptable,
perversion is normal, and immorality is simply `cultural diversity' of which
we should be proud. [19 July 2000, Quesnel Cariboo Observer.]
¶ 35 Mr. Kempling's statements about homosexuals are based on stereotypical notions
about homosexuality and demonstrate a willingness to judge individuals on the basis of
those stereotypes. As a result, I am of the view that even if considered on a standard of
correctness, as opposed to one of reasonableness, the conclusion that Mr. Kempling's
writings were discriminatory is unassailable.
b) The nature of the harm
¶ 36 Holmes J. concluded that a teacher may be disciplined by the BCCT for off-duty
conduct when that conduct negatively impacts the school system or impugns the teacher's
ability to carry out his professional duties. He saw the harm resulting from Mr.
Kempling's conduct as two-fold: 1) harm per se; and 2) harm that could be inferred as the
reasonable and probable consequences of the conduct.
¶ 37 Mr. Kempling's conduct appeared to Holmes J. to be harmful to the school
system per se, both because of its discriminatory content, and because Mr. Kempling
explicitly linked what he wrote to his role as a teacher and counsellor. Holmes J.
concluded as follows:
 By publicly linking his private, discriminatory views of
homosexuality with his status and professional judgment as a teacher and
secondary school counsellor, the appellant called into question his own
preparedness to be impartial in the fulfilment of his professional and legal
obligations to all students, as well as the impartiality of the school system.
That in itself is a harmful impact on the school system as a non-
¶ 38 Holmes J. found that the following harms could reasonably be inferred from the
appellant's conduct: 1) a loss of public confidence in Mr. Kempling and the public school
system; 2) a loss of respect by the students for Mr. Kempling and for other teachers
generally; 3) controversy within the school system that would disrupt its proper
functioning; and 4) a reluctance on the part of homosexual students to approach Mr.
Kempling for counselling, thereby impairing his ability to carry out his professional
duties. In the result, Holmes J. concluded that, absent Charter issues, the Panel's finding
of conduct unbecoming was reasonable and should not be disturbed.
¶ 39 Mr. Kempling submits that the Panel was not entitled to draw an inference of
harm in the case against him, and that Holmes J. erred in his support of the inference. The
burden was on the BCCT to prove harm and the onus was with it to call such evidence as
it could in that regard. Mr. Kempling relies on the Supreme Court of Canada's decision in
Ross v. New Brunswick School District No. 15,  1 S.C.R. 825. In Ross, the
Supreme Court concluded at paragraph 45 that a teacher could be sanctioned for off-duty
conduct if that conduct is likely to produce a "poisoned" school environment:
It is on the basis of the position of trust and influence that we hold the
teacher to high standards both on and off duty, and it is an erosion of these
standards that may lead to a loss in the community of confidence in the
public school system. I do not wish to be understood as advocating an
approach that subjects the entire lives of teachers to inordinate scrutiny on
the basis of more onerous moral standards of behaviour. This could lead to
a substantial invasion of the privacy rights and fundamental freedoms of
teachers. However, where a "poisoned" environment within the school
system is traceable to the off-duty conduct of a teacher that is likely to
produce a corresponding loss of confidence in the teacher and the system
as a whole, then the off-duty conduct of the teacher is relevant.
¶ 40 The approach taken in Ross was adopted in TWU. In that case, the majority
noted that, in situations where a teacher's constitutionally protected rights are at issue, the
BCCT may regulate the off-duty conduct if there is evidence of a poisoned school
environment. In this regard, Iacobucci J. and Bastarache J. stated as follows at paragraphs
36 and 37:
Instead, the proper place to draw the line in cases like the one at bar is
generally between belief and conduct. The freedom to hold beliefs is
broader than the freedom to act on them. Absent concrete evidence that
training teachers at TWU fosters discrimination in the public schools of
B.C., the freedom of individuals to adhere to certain religious beliefs while
at TWU should be respected. The BCCT, rightfully, does not require
public universities with teacher education programs to screen out
applicants who hold sexist, racist or homo-phobic beliefs. For better or for
worse, tolerance of divergent beliefs is a hallmark of a democratic society.
Acting on those beliefs, however, is a very different matter. If a
teacher in the public school system engages in discriminatory conduct, that
teacher can be subject to disciplinary proceedings before the BCCT.
Discriminatory conduct by a public school teacher when on duty should
always be subject to disciplinary proceedings. This Court has held,
however, that greater tolerance must be shown with respect to off-duty
conduct. Yet disciplinary measures can still be taken when discriminatory
off-duty conduct poisons the school environment.
¶ 41 Mr. Kempling contends that as his constitutionally protected rights were engaged
in this case, the BCCT did not have the right to regulate his off-duty conduct in the
absence of direct evidence of harm to the school system. As there was no evidence of a
poisoned school environment, and as the Panel relied upon an inference of harm, the
Panel's decision and Holmes J.'s support of it were in error.
¶ 42 A finding of conduct unbecoming may be justified on the basis that a teacher's
conduct caused harm to the education system. I do not accept that it is necessary to
determine whether an inference of harm is sufficient to sustain a finding of conduct
unbecoming as there was, in my view, direct evidence that Mr. Kempling's writings
caused harm. This harm is not to any particular student or parent (though such harm may
have been caused), but to the integrity of the school system as a whole.
¶ 43 Non-discrimination is a core value of the public education system; the integrity
of that system is dependent upon teachers upholding that value by ensuring the school
environment is accepting of all students. When a teacher makes public statements
espousing discriminatory views, and when such views are linked to his or her
professional position as a teacher, harm to the integrity of the school system is a
¶ 44 In Mr. Kempling's writings he clearly states his belief that homosexuality is
immoral, perverse, and perhaps the product of mental illness. He makes it equally clear
that these views will inform his actions as a teacher and counsellor. The following
passages provide two examples:
Sexual orientations can be changed and the success rate for those who
seek help is high. My hope is that students who are confused over their
sexual orientation will come to see me.
It could save their life.
[Quesnel Cariboo Observer, 27 August 1997, AB. 18]
I refuse to be a false teacher saying that promiscuity is acceptable,
perversion is normal, and immorality is simply "cultural diversity" of
which we should be proud.
Section 95(2) of the School Act states that teachers must "inculcate the
highest moral standards". [Quesnel Cariboo Observer, 19 July 2000, AB.
¶ 45 These statements demonstrated that Mr. Kempling is committed to fulfilling his
public and professional responsibilities in an intolerant and discriminatory manner. Proof
that he had actually discriminated against a particular student, or evidence of a poisoned
school environment, was not required to prove that the school system had sustained harm.
Mr. Kempling's statements damaged the integrity of the school system as a whole. They
undermined the core value of non-discrimination by denying homosexual students an
education environment accepting of them.
¶ 46 In the result, I consider that there was sufficient evidence to support a finding
that Mr. Kempling's off-duty statements caused harm to the integrity of the school
system. Accordingly, subject only to the Charter considerations Mr. Kempling raises, the
Panel's finding of conduct unbecoming was reasonable and was properly upheld.
The Penalty Imposed
¶ 47 Holmes J. reviewed the penalty recommended by the Panel and imposed by the
Council from the perspective of circumstances of the case and of Mr. Kempling. There is
no question that Mr. Kempling enjoyed a wealth of support from those who know him
and he has contributed much to his community. But both the Panel and the Council saw
his misconduct as serious and Holmes J. saw no basis on which it could be said that the
penalty imposed was not, in the circumstances, reasonable. He concluded as follows:
 Open discrimination by a public school teacher as seen in Ross is
serious, particularly where inaction or a mere reprimand by the teaching
profession and the school system could be seen as condonation.
 At any rate, judicial review on a reasonableness standard does not
entitle a court to substitute its own opinion for the administrative decision-
maker's. Regardless of what sanction this Court might have imposed, in my
view there is nothing in the circumstances of the case and the appellant, or
in the Council's reasons which, absent Charter issues, suggests that the
penalty imposed is unreasonable. ...
¶ 48 Mr. Kempling says now only that the statute provides for a broad range of
penalties and it was neither necessary nor appropriate that the Panel recommend, and the
Council impose, a suspension of his teaching certificate. Mr. Kempling, however, did not
advance any argument as to the tenability of the reasons for the penalty. Like Holmes J., I
am unable to find any basis on which it could be said that the penalty seen fit to be
imposed was not reasonable. I consider that, again subject to Charter considerations, the
penalty imposed was properly upheld.
The Infringement of Charter Rights
¶ 49 The case Mr. Kempling advances on the infringement of his Charter rights
requires a determination of what, if any, of his rights can be said to have been infringed
under ss. 2(a), 2(b), and 15 and then a consideration of whether any infringement there
may have been is within what is demonstrably justified in a free and democratic society
(s. 1). Mr. Kempling makes no submission on s. 7 on this appeal.
a) Section 2(a): Freedom of Religion
¶ 50 I do not consider it was open to Mr. Kempling to raise s. 2(a) for the first time on
his appeal from the administrative decisions because he did not appear before the Panel at
the first hearing and therefore laid no evidentiary basis upon which an infringement of his
religious freedom could be assessed.
¶ 51 It is well recognized that a proper evidentiary foundation is necessary to a
consideration of the infringement of a Charter right: MacKay v. Manitoba,  2
S.C.R. 357, 61 D.L.R. (4th) 385. Charter decisions are not to be made in a factual
vacuum. This can be said to be particularly so with respect to freedom of religion which
is an individual, not a generalized, right. What is required is evidence of a person's
obligations and an opportunity to assess his or her sincerity which generally involves
credibility: Syndicat Northcrest v. Amselem,  2 S.C.R. 551.
¶ 52 There is no evidence in this case which even identifies Mr. Kempling's religion
or its tenets. Most significantly, there is no evidence that establishes that his ability to
practice his religion would in any way be compromised by his being restricted from
making discriminating public statements about homosexuals. Shortly put, no evidentiary
case of a s. 2(a) infringement has been advanced.
b) Section 2(b): Freedom of Expression
¶ 53 There was, of course, evidence before the Panel in the form of Mr. Kempling's
writings on which a consideration of an infringement of his right to express his
convictions could be undertaken, but, as indicated, Holmes J. concluded that no
infringement had occurred. While the BCCT now accepts that the penalty imposed on
Mr. Kempling did infringe his s. 2(b) rights, I consider it desirable to state why I consider
the concession to be right in law.
¶ 54 Holmes J. concluded that there was no violation of s. 2(b) of the Charter because
the BCCT did not restrict Mr. Kempling's ability to express himself on the issue of
homosexuality, but rather restricted the capacity in which he could express his views in
that regard (i.e. it restricted his ability to express his views in the capacity of a teacher
and counsellor in the public school system). In coming to this conclusion, Holmes J.
relied upon the decision in Walker v. Prince Edward Island, (1993), 107 D.L.R. (4th) 69
(P.E.I. S.C.A.D.), writing as follows:
 In Walker v. Prince Edward Island, 107 D.L.R. (4th) 69 (P.E.I.S.C. -
A.D.) ["Walker"], the court held that a legislative provision restricting the
ability of anyone other than public accountants to engage in public
accounting and auditing did not infringe s. 2(b) of the Charter. This is
because the provision did not prohibit anyone from expressing themselves
about any accounting matter, but only restricted the capacity in which they
could do so, i.e. not with the authority, or in the capacity, of a public
accountant unless so qualified or authorized. This decision was
subsequently affirmed by the Supreme Court of Canada [ 2 S.C.R.
 Applying Walker to the case at bar, there has been no infringement,
by purpose or effect, of the appellant's s. 2(b) Charter rights. The appellant
was at all times free and remains free to express his views on
homosexuality in a non-violent manner qua private citizen. What the
appellant is being sanctioned for is not the expression of any particular
view per se. The purpose and effect of the disciplinary action taken against
the appellant is to sanction him for his off-duty expression of personally-
held discriminatory views purportedly with the authority or in the capacity
of a public secondary school teacher and counsellor, which resulted in
harm to the school system.
¶ 55 It is, however, my view that Walker does not stand for the proposition for which
Holmes J. cited it. What was decided in that case was that a government restriction on a
person's ability to hold himself out as a public accountant does not violate s. 2(b). This
seems to me to be clear from the following passage found at p. 73 of the decision:
It therefore seems that at least the reporting functions of public accounting
and auditing may fall within the ambit of s. 2(b). However, in my view, s.
14(1) of the Public Accounting and Auditing Act does not contravene s.
2(b) of the Charter even if some aspects of public accounting and auditing
do meet the very broad definition given to the term "expression" by the
Supreme Court of Canada in Irwin Toy. I have come to that conclusion
because s. 14(1) does not prohibit anyone from expressing themselves
about any accounting matter; it only restricts the capacity in which they
can do so. What it does is prohibit those who are not authorized by the
Institute from carrying on business as, laying claim to the authority of, or
representing themselves to be public accountants. Thus, the respondents
are free to express themselves on any of the matters referred to in s. 1(e) so
long as they do not purport to be doing so with the authority of, or in the
capacity of, a public accountant.
¶ 56 Walker does not establish the proposition that s. 2(b) may not protect an
individual's right to express himself in his professional capacity. Such an interpretation is
contrary to a broad and liberal interpretation of s. 2(b) which has been the hallmark of the
Supreme Court of Canada jurisprudence on the issue.
¶ 57 In my view, the Supreme Court's decision in Ross is determinative. In that case,
La Forest J. for the court concluded that the off-duty discriminatory statements of a
teacher were protected by s. 2(b). The school board's attempt to restrict Ross's ability to
express his views violated his rights. Ross is not to be distinguished on the basis that
there is no reference in the judgment to a direct link between the racist statements and
Ross's status as a teacher. Walker does not support the proposition that s. 2(b) may not
protect statements made in one's professional capacity, and therefore the lack of a direct
link between Ross's statements and his status as teacher is irrelevant. It is apparent from
the opening paragraph of the judgment in Ross that the Supreme Court was addressing
directly the issue that now arises in this case:
This appeal concerns the obligation imposed upon a public school
board pursuant to provincial human rights legislation to provide
discrimination-free educational services. It further involves the
fundamental freedom of an individual teacher to publicly express his views
and to exercise his religious beliefs during his off-duty time. The main
issues raised by this appeal are whether a school board, which employs a
teacher who publicly makes invidiously discriminatory statements,
discriminates with respect to services it offers to the public pursuant to s.
5(1) of the New Brunswick Human Rights Act, R.S.N.B. 1973, c. H-11,
and whether an order to rectify the discrimination, which seeks to remove
the teacher from his teaching position, infringes upon the teacher's freedom
of expression and freedom of religion guaranteed under ss. 2(a) and 2(b) of
the Canadian Charter of Rights and Freedoms.
¶ 58 Ultimately La Forest J. concluded as follows, at paragraph 66:
In the present case, the purpose of the Board's order, while intended to
remedy the discrimination with respect to services available to the public,
is to prevent the respondent from publicly espousing his views while he is
employed as a public school teacher. On its face, the purpose of the order
is to restrict the respondent's expression; it has a direct effect on the
respondent's freedom of expression, and so violates s. 2(b) of the Charter.
¶ 59 This conclusion is directly applicable to this case.
¶ 60 In my view, the BCCT's one-month suspension of Kempling's teaching
certificate was a violation of his s. 2(b) rights. Undoubtedly the rights of freedom of
expression protected by the Charter will often come into conflict with other values. The
protection of children, the rights of a minority not to be subjected to discrimination, and
the rights of an employer to regulate the work place are all countervailing values which
are at stake in this case. The Supreme Court, however, has made it clear that a
determination of how to balance such values should be undertaken as part of the s. 1
analysis. These values should not be used to restrict the scope of s. 2(b).
¶ 61 In Osborne v. Canada (Treasury Board),  2 S.C.R. 69, Sopinka J., for the
majority, stated at 92-93:
Therefore, where opposing values call for a restriction on the freedom
of speech, and apart from exceptional cases, the limits on that freedom are
to be dealt with under the balancing test in s. 1, rather than circumscribing
the scope of the guarantee at the outset. In this respect, the decision of the
Court in R. v. Keegstra,  3 S.C.R. 697, is illuminating. In Keegstra,
Dickson C.J. referred to the test articulated in Irwin Toy Ltd. v. Quebec
(Attorney General),  1 S.C.R. 927, and said (at p. 729) with respect
to a finding of breach of s. 2(b):
Apart from rare cases where expression is communicated in a
physically violent form, the Court thus viewed the fundamental
nature of the freedom of expression as ensuring that "if the activity
conveys or attempts to convey a meaning, it has expressive content
and prima facie falls within the scope of the guarantee" (p. 969). In
other words, the term "expression" as used in s. 2(b) of the Charter
embraces all content of expression irrespective of the particular
meaning or message sought to be conveyed (Reference re ss. 193
and 195.1(1)(c) of the Criminal Code (Man.),  1 S.C.R. 1123,
at p. 1181, per Lamer J.).
The second step in the analysis outlined in Irwin Toy is to
determine whether the purpose of the impugned government action
is to restrict freedom of expression. The guarantee of freedom of
expression will necessarily be infringed by government action
having such a purpose.
¶ 62 The broad interpretation given to s. 2(b) encompasses the statements at issue in
this case, and therefore, the BCCT's attempts to curtail Mr. Kempling's ability to publish
his views about homosexuality must be considered a violation of his right to free
c) Section 15: Equality under the law
¶ 63 Mr. Kempling contends that his s. 15 right to be treated equally has been
infringed. He maintains that he has been denied the opportunity to express deeply-held
religious and moral views that others may express only because he is a teacher in the
provincial public school system. He is, he says, disadvantaged in that he is precluded
from participating in public debate on an issue of importance to him.
¶ 64 It might be said that Mr. Kempling's s. 15 argument lacks an evidentiary basis in
much the same way as does his s. 2(a) argument. However, Holmes J. disposed of Mr.
Kempling's contention that his right to be treated equally had been infringed by pointing
out that it is not a matter of Mr. Kempling being treated equally with the public at large.
Rather, it is a matter of his being treated the same as other members of the BCCT, whose
professional conduct is regulated in the same way under the same legislation. Holmes J.
said that "it was entirely appropriate that the teaching profession, like any profession, be
held to more stringent standards of conduct than the lay public" and that it is the members
of his profession that is the appropriate comparative group to consider for the purpose of
s. 15. Mr. Kempling does not allege that the BCCT treated him differently than it does
¶ 65 I do not consider there to have been any error on the part of Holmes J. in
concluding that no case of an infringement of Mr. Kempling's s. 15 rights was made out.
d) Section 1: Demonstrable justification
¶ 66 It follows that what remains to be considered is whether the infringement of Mr.
Kempling's s. 2(b) right to freedom of expression can be demonstrably justified in a free
and democratic society.
¶ 67 In his analysis, Holmes J. applied the test developed by the Supreme Court in R.
v. Oakes,  1 S.C.R. 103. As set out by Holmes J. in paragraph 86, in that case, the
majority stated that for a violation of the Charter to be justified under s. 1 there must be:
1. a pressing and substantial objective of sufficient importance to
warrant overriding a constitutionally protected right or freedom,
2. the impugned measure must be proportionate to the achievement of
that objective, i.e.
a. there should be a rational connection between the measure and
b. there should be minimal impairment of the Charter rights and
freedoms in question
c. there should be proportionality between the objective and the
effects of the measure, i.e. the objective and the positive effects
outweigh the deleterious effects of the measure (Dagenais v.
Canadian Broadcasting Corp.,  3 S.C.R. 835).
¶ 68 Holmes J. addressed each element of the test comprehensively. I do not consider
it necessary to outline the whole of his analysis but rather confine myself to referencing
such in the context of what are now said to be errors in his analysis.
¶ 69 Mr. Kempling contends that the violation of his s. 2(b) right cannot be justified
under s. 1, arguing that there was no pressing or substantial objective which could justify
overriding his right to express his political and religious views. In the alternative, he
argues that there is no rational connection between the measure and the objective; that
there is no minimal impairment of his right in question; and that there is no
proportionality between the objective and the effects of the measure.
¶ 70 In support, the Alliance argues that Holmes J. erred in two respects in his s. 1
analysis. First, it is submitted that Holmes J. did not take into account the political and
religious dimensions of Mr. Kempling's written statements, and in so doing improperly
characterized his speech as having "low value". It maintains that Mr. Kempling was
engaged in a political discussion concerning a controversial issue and that political
discourse of this kind is at the core of the s. 2(b) protection. Holmes J.'s
mischaracterization is said to taint the whole of his s. 1 analysis. When one begins with
the premise that the speech is of low value, it becomes easy to justify not protecting it.
¶ 71 Second, the Alliance argues that Holmes J. erred in basing his s. 1 justification in
part upon an inference that Mr. Kempling's statements caused harm. It maintains that
Holmes J. focused on the content of Mr. Kempling's speech, as opposed to its effects, and
as a result his conclusion was based primarily upon an assessment of the character of the
expression. It is said that Mr. Kempling's s. 2(b) rights should not be curtailed on the
basis of subjective perceptions regarding which ideas are valuable and which are not. To
limit Mr. Kempling's Charter rights, there must be more than a mere inference of harm
based on an assessment of the content of the expression; there must be some tangible
evidence that harm has been caused. The Alliance points to the Supreme Court's decision
in Ross where a violation of Ross's s. (2)(b) rights was held to be justified on the basis of
demonstrable evidence of a "poisoned school environment". No such evidence exists in
¶ 72 The Alliance says that Holmes J.'s mischaracterization of Mr. Kempling's
statements, coupled with a lack of evidence of harm, resulted in a flawed s. 1 analysis. A
proper analysis is said to lead inevitably to the conclusion that prohibiting Mr. Kempling
from expressing his opinions about sexual morality while off duty, in the absence of
evidence of a poisoned school environment, is an unjustifiable infringement of his right
to freedom of expression.
¶ 73 This case rests in large part upon a resolution of how the competing Charter
rights engaged are to be balanced. On the one hand, lie the rights of Mr. Kempling to
express his views concerning sexual morality which engage his s. 2(b) right to freedom of
expression. On the other hand, lie the rights of homosexual students, and students in
general, to a school environment that is free from discrimination and in harmony with s.
15 of the Charter. It is through the s. 1 analysis that these rights can be balanced.
¶ 74 Holmes J. recognized that an assessment of the contextual factors surrounding
the infringement must be undertaken in a s. 1 analysis. In Harper v. Canada (Attorney
General),  1 S.C.R. 827, a case involving a challenge to provisions of election
legislation on the basis that they infringed s. 2(b), the majority identified four relevant
contextual factors: 1) the nature of the harm; 2) the vulnerability of the group; 3) the
subjective fears and apprehension of harm; and 4) the nature of the impugned activity.
The arguments advanced now require an assessment of the first and fourth factors.
i) The Nature of the Impugned Activity
¶ 75 The Supreme Court has made it clear that the nature of the impugned expression
will, in part, determine how difficult it will be to justify an infringement of s. 2(b). In
Ross, La Forest J. made the following comments at paragraph 89:
In my reasons in RJR-MacDonald,  3 S.C.R. 199, I stated that the
"core" values of freedom of expression include "the search for political,
artistic and scientific truth, the protection of individual autonomy and self-
development, and the promotion of public participation in the democratic
process" (p. 280). This Court has subjected state action limiting such
values to "a searching degree of scrutiny" (p. 281). This standard of
scrutiny is not to be applied in all cases, however, and when the form of
expression allegedly impinged lies further from the "core" values of
freedom of expression, a lower standard of justification under s. 1 has been
And in R. v. Keegstra,  1 S.C.R. 458, Dickson C.J. made the following
In my opinion, however, the s. 1 analysis of a limit upon s. 2(b) cannot
ignore the nature of the expressive activity which the state seeks to restrict.
While we must guard carefully against judging expression according to its
popularity, it is equally destructive of free expression values, as well as the
other values which underlie a free and democratic society, to treat all
expression as equally crucial to those principles at the core of s. 2(b).
¶ 76 There is undoubtedly a political element to Mr. Kempling's expression, and
portions of his writings form a reasoned discourse, espousing his views as to detrimental
aspects of homosexual relationships. Though his views may be unpopular, he was, in his
more restrained writings, engaged in a rational debate of political and social issues; such
writing is near the core of the s. 2(b) expression. However, not all of his writings were of
this nature and as I have said, Mr. Kempling's writings at times clearly crossed the line of
reasoned debate into discriminatory rhetoric.
¶ 77 In a number of Mr. Kempling's published writings he relied upon stereotypical
notions of homosexuality, and he expressed a willingness to judge individuals on the
basis of these notions. In doing so, he ignored the inherent dignity of the individual; this
concept is essential to a functioning democracy, and, in my view, political discourse
which ignores it is not representative of the core values underlying s. 2(b). Accordingly,
Mr. Kempling's published writings, taken as a whole, are not deserving of a high level of
ii) Nature of the Harm
¶ 78 In Ross, the Supreme Court found that evidence of a poisoned school
environment was a sufficient basis on which a teacher could be disciplined for comments
made while off duty. Ross, therefore, is authority for the proposition that evidence of a
poisoned school environment may be a sufficient condition for a justification of a Charter
infringement. However, the case does not, in my view, stand for the proposition that such
evidence is a necessary condition. I agree that to justify an infringement of Mr.
Kempling's rights, his actions must have caused some harm, but this harm need not be in
the form of a "poisoned school environment".
¶ 79 As I have said, the harm in evidence in this case is not that of discriminatory
actions directed against particular individuals, but rather is that sustained by the school
system as a whole. In his writings, Mr. Kempling made clear that his discriminatory
beliefs would inform his actions as a teacher and counsellor. His writings therefore, in
themselves, undermine access to a discrimination-free education environment. Evidence
that particular students no longer felt welcome within the school system, or that
homosexual students refused to go to Mr. Kempling for counselling, is not required to
establish that harm has been caused. Mr. Kempling's statements, even in the absence of
any further actions, present an obstacle for homosexual students in accessing a
discrimination-free education environment. These statements are therefore inherently
harmful, not only because they deny access, but because in doing so they have damaged
the integrity of the school system as a whole.
¶ 80 Once it is accepted that Mr. Kempling's writings fall somewhere outside of the
core values underlying s. 2(b) and that there was evidence that his actions caused harm,
the remainder of the s. 1 analysis is relatively straightforward. As Holmes J. found, the
BCCT had numerous pressing and substantial objectives, including ensuring a tolerant
and discrimination-free environment, and restoring and upholding the integrity of the
school system. As the harm at issue in this case arises as a direct and necessary result of
Kempling's writings, in my view the rational connection between the impugned activity
and the harm caused is self-evident. Moreover, as Holmes J. found, there is a rational
connection between the BCCT's actions and the harm caused. Through its sanction of Mr.
Kempling, the BCCT has made a strong statement to the public that what he did was
wrong and that it does not condone discrimination. This statement goes some way to
repairing the damage done to the integrity of the school system and tends to remove any
obstacles restricting access to a discrimination-free environment.
¶ 81 As to the question of minimal impairment, it is my view that as Mr. Kempling's
writings did cause demonstrable harm to the school system, this case is essentially
indistinguishable from Ross. As an 18 month suspension and lifetime ban from working
for the school board were upheld as minimally impairing in that case, it follows that a
one-month suspension must meet constitutional muster here.
¶ 82 Finally, I am in agreement with Holmes J. that the deleterious effects of the
sanction were proportionate when weighed against their salutary effects. Mr. Kempling
can remain a BCCT member and continue while off duty to express his views on
homosexuality by way of reasoned discourse befitting a teacher and counsellor. What he
cannot do is to advance such views in a discriminatory manner that will be seen publicly
to be those of a teacher and counsellor in the public school system. While I recognize that
Mr. Kempling's prominence as a teacher in what is a relatively small community may of
itself confine his ability to express his views on homosexuality regardless of whether he
makes mention of the fact that he is a teacher, the deleterious effects of the infringement
are, nonetheless, relatively limited when compared to the salutary effects; namely,
restoring the integrity of the school system and removing any obstacles preventing access
for students to a tolerant school environment.
¶ 83 In the result, I conclude that Holmes J. made no error in his assessment that the
disciplinary action of the BCCT in this case was demonstrably justified under s. 1 of the
¶ 84 It is for these reasons that I would dismiss the appeal.
DONALD J.A.:— I agree.
HUDDART J.A.:— I agree.
QL UPDATE: 20050617