British Columbia Civil Liberties Association | 28 July 2003 | For Immediate Release

NO. L0121838
VANCOUVER REGISTRY

IN THE SUPREME COURT OF BRITISH COLUMBIA

BETWEEN:

CHRISTOPHER STEPHEN MYLES KEMPLING

APPELLANT

AND:

THE BRITISH COLUMBIA COLLEGE OF TEACHERS

RESPONDENT

ARGUMENT OF THE INTERVENOR
B.C. CIVIL LIBERTIES ASSOCIATION

CHRISTOPHER MYLES KEMPLING                             

William S. Clark                                                           
Harper Grey Easton                                                     
3200-650 West Georgia Street                                      
Vancouver, B.C. V6B 4P7                                             

THE BRITISH COLUMBIA COLLEGE OF TEACHERS

Bruce Laughton
Laughton & Company
1090-1090 West Georgia Street
Vancouver, B.C. V6E 3V7

THE B.C. CIVIL LIBERTIES ASSOCIATION - INTERVENOR

Elliott M. Myers, Q.C. & Craig Jones
3000-1055 West Georgia Street
Vancouver, B.C. V6E 3R3

ARGUMENT OF THE B.C. CIVIL LIBERTIES ASSOCIATION

CONTENTS

I. Introduction
  A. Scope of the Intervention
  B. The Nature of the Case
  C. Summary of the BCCLA's Submissions

II. The Legal Principles
  A. The Charter Rights in Issue
  B. Is the College the Appropriate Actor?
  C. The Balancing Under Section 1
     (1) The Test to Be Applied
     (2) The Contextual Factors
     (3) Is Proof of Harm Required?
     (4) When Expression is Harmful in Itself
     (5) Evidence of Beliefs Alone is Not Sufficient

III. Application of the Legal Principles to the Facts
  A. Mr. Kempling's Public Writings Announce an Intention to Discriminate
  B. Announcing an Intention to Discriminate Can Be Harm in Itself
  C. Mr. Kempling's Private and Unpublished Writing
     (1) The Letters to Council
     (2) The Essays
     (3) The Graf Letters
     (4) The Use to Which the Private Writings Might Legitimately be Put
     (5) The Use to Which the Private Writings Were Put
  D. The Inadequacy of the College's Reasons

IV. Conclusions and Remedy


I. INTRODUCTION


A. Scope of the Intervention

1. In paras. 47 through 53 of his written argument, counsel for Mr. Kempling identifies the arguments he advances in opposition to the findings of the British Columbia College of Teachers ("College") expressed in the College's reasons found at TAB 1, page 1 of the Chambers Record.

2. The British Columbia Civil Liberties Association ("BCCLA", "the Association") takes no position with respect to the arguments in paras. 47 and 48 which deal with the applicable standards of review and proof. Moreover, while the Association accepts that the proportionality of the penalty ought be weighed as part of the section 1 analysis, the BCCLA does not take any position as to what the appropriate penalty should be.

3. Paras. 49 through 53 are the focus of the BCCLA's submission. Though expressed in various legal terms, they are different ways of approaching the same questions: Is the College the appropriate actor to regulate off-duty expression of its members? If so, is Mr. Kempling's speech the type that might reasonably be restricted? And finally, in light of the competing freedoms at issue, does the College's decision deal adequately with the regulation of Mr. Kempling's conduct?

B. The Nature of the Case

4. The case at bar is one of competing rights and interests. Mr. Kempling has an interest in speaking his mind on the issue of homosexuality and his religious views. This interest is constitutionally protected is ss. 2(a) and (b), and perhaps s. 15, of the Charter. He has another interest in being able to work in his chosen profession; this interest enjoys no direct constitutional protection. On the other side of the ledger, gay, lesbian and bisexual students have a right under s. 15 of the Charter to an education system that is free from discrimination and respectful of their dignity. All students, hetero- or homosexual, enjoy non-constitutional statutory rights to an environment tolerant of a diversity of sexual orientation and one which inculcates these values as the highest moral principles.

5. Under the existing jurisprudence, such competition is resolved through reference to section 1 of the Charter. The question is not one of absolutes, but rather whether, in all the circumstances, restrictions placed on Mr. Kempling's expressive conduct are a justified infringement upon the expression of his religiously-based views.

C. Summary of the BCCLA's Submissions

6. The BCCLA submits that certain of Mr. Kempling's statements constituted a public announcement of an intent to discriminate in his professional capacity, that they were incompatible with his professional obligation not to discriminate on the basis of sexual orientation, and that restrictions on this speech are justified.

7. The Association submits that Mr. Kempling's public statements were in themselves discriminatory. No consequent harm need be shown before they are subject to reasonable regulation; the expression itself, in the particular context of this case, is the harm.

8. However, the Association also has a concern that any restrictions on expression be carefully articulated and fully justified. This requires a level of procedural fairness in the conduct of disciplinary matters, and also requires that the adjudicative body carefully applies the relevant law, including the Charter of Rights, to the facts of the case in the course of its reasons.

9. We submit that the College's reasons in this matter fall short of this ideal, with the result that the BCCLA cannot determine which of Mr. Kempling's speech the College has found to have exceeded the parameters of acceptable comment.

10. We therefore offer our own submissions on which of Mr. Kempling's speech might be reasonably restricted, and why, but we do not adopt or endorse the reasons of the College offered in support of its decision. II. THE LEGAL PRINCIPLES A. The Charter Rights in Issue

11. The BCCLA submits that the pivotal issues of this case fall within ss. 2 and 15 of the Charter.

12. Despite Mr. Kempling's argument regarding the expansive view courts have occasionally taken of the Charter's s. 7, the BCCLA does not believe that the liberty interest is engaged in the case of workplace suspensions.

13. In the words of Lamer J. in Reference re: ss. 193 and 195.1(1)(c) of the Criminal Code [1990] 1 S.C.R. 1123 (also known as the Prostitution Reference) at 1179: The rights under s. 7 do not extend to the right to exercise [one's] chosen profession... I reach this conclusion based on a reading of the cases decided by this and other courts dealing with s. 7 and "economic liberty", and on a reading of the text of the Charter.

14. Nor do we accept that the right to practice as a teacher rises to the level described in Blencoe v. British Columbia [2000] 2 S.C.R. 307 at paras. 49 through 54 (holding that "liberty" is applicable only in the case of "fundamental personal choices" that go to the root a person's dignity).

15. The BCCLA therefore does not address s. 7 of the Charter in this Argument.

16. The BCCLA accepts that restrictions on Mr. Kempling's off-duty expression are an infringement on his freedom of expression for the purposes of s. 2(b). We also accept that, because his speech is grounded in deeply-held, religious beliefs, that his section 2(a) freedom of religion is also potentially infringed by the College's disciplinary action.

17. Mr. Kempling may also have an argument that there is a duty of the College to "reasonably accommodate" his religious beliefs and activities pursuant to section 15; however, Mr. Kempling's written argument makes only oblique reference to s. 15 and puts forth no 'reasonable accommodation' argument. Because we accept that section 1 is already triggered by the infringements of s. 2(a) and (b), the BCCLA will analyse the matter without further reference to Mr. Kempling's s.15 rights. B. Is the College the Appropriate Actor?

18. Many of the arguments on all sides of this matter focus on the decision of the Supreme Court of Canada in Ross v. New Brunswick, [1996] 1 S.C.R. 825, which described the right of students to be "educated in a school system that is free from bias, prejudice and intolerance". However, the Ross decision also relied on the context of the employment relationship between Mr. Ross and the School Board. There, the Court noted at para. 85: 85 More than being solely employees of the State, teachers are also employees of a particular school board. As such, a teacher's freedoms must be balanced against the right of school boards to operate according to their own mandates. Recalling New Brunswick's Ministerial Statement, this means that the interest of School District No. 15 to provide a school system free from bias, prejudice and intolerance must be balanced against the respondent's right to manifest his religious beliefs and express his particular views.

19. The question arises in this case, therefore, is can the College take action against Mr. Kempling for conduct even where the School District does not?

20. It is not known why the School District did not itself take action to restrain Mr. Kempling's speech. Perhaps it was dissuaded by his implicit threat to make the issue a "cause celebre" that would tax the resources of the District; perhaps it was satisfied by his assurances in the same communication that his public campaign would, at least for the moment, cease.

21. The BCCLA submits that the statutory authority granted to the College, as a professional association, to act against "conduct unbecoming" is complementary to that of the School Board to enforce rules qua employer. There may be instances, as here, where unbecoming conduct of a particular teacher is not redressed in the local District, and indeed may even be applauded there. In such cases, the College, acting in the interests of the wider community, should have jurisdiction to ensure that its members' professional obligations are kept. C. The Balancing Under Section 1 (1) The Test to Be Applied

22. Having accepted the fact of the infringement of Mr. Kempling's rights under s. 2, the BCCLA's submissions focus upon whether the infringements are, under section 1, reasonable and demonstrably justified in a free and democratic society.

23. Tribunals weighing restrictions upon expression, including religious expression, under section 1 of the Charter sometimes turn to the familiar Oakes test. This is particularly the case when the constitutionality of legislation is at issue, as in Canada v. Taylor [1990] 3 S.C.R. 892 and Canadian Jewish Congress v. North Shore Free Press Ltd. (No.7) (1997), 30 C.H.R.R. D/5 (B.C. Tribunal). The Oakes test has also been sometimes applied, out of an abundance of caution, in cases not considering legislative validity, such as Kane v. The Church of Jesus Christ Christian-Aryan Nations (No. 3) (1992), 18 C.H.R.R. D/268 (Alta. Bd. of Inq.).

24. The BCCLA submits that the correct test to be applied in the section 1 analysis is that recently enunciated by Rook J. of the Alberta Queen's Bench in Re: Kane 2001 ABQB 570. Considering the application of the Alberta Human Rights, Citizenship and Multiculturalism Act R.S.A. 1980, c. H-117 as amended, and in particular the application of its restrictions on discriminatory publications, Rook J. wrote of the section 1 analysis: What is required to properly balance the two competing interests is an examination of the nature of the statement in a full, contextual manner which recognizes the objectives and goals of the legislation and is Charter sensitive. It will also be necessary for the Panel to apply other principles enunciated by the Supreme Court of Canada in relation to s. 2(b). In particular it is essential that the Panel consider the nature and context of the expression and the degree of protection which this type of expression is afforded (Keegstra at 766; and Taylor at 922). The Panel should also give full recognition to the other provisions of the Charter which may come into play. These may include s. 15 (equality rights); s. 25 (aboriginal rights); s. 27 (multicultural rights); s. 28 (sexual equality); and s. 2(a) (freedom of religion).

25. The BCCLA will first discuss the contextual factors that underlie the weighing of interests under section 1; we then proceed to discuss where along the spectrum - i.e. how close to the protected "core" of free speech - Mr. Kempling's impugned statements fall. (2) The Contextual Factors

26. Perhaps the most important contextual factor at play in this case is the educational and equality rights of students engaged in the circumstances. Mr. Kempling asserts in his own defence that "[a]fter the family, the school is the primary means of inculcating social values among the young..." This is probably true.

27. In Ross, supra, the Court said at para. 83: 83 It is this context that must be invoked when balancing the respondent's freedom to make discriminatory statements against the right of the children in the School Board "to be educated in a school system that is free from bias, prejudice and intolerance", a right that is underscored by s. 5(1) of the Act and entrenched in s. 15 of the Charter.

28. This right, while perhaps only constitutionally protected with respect to students who are actually members of minorities, is also described as a statutory right of all students to be free from bias, prejudice and intolerance in schools. The BCCLA submits that the relevant legislation in British Columbia, including the School Act R.S.B.C. 1996 c. 214 provides this same right to students here.

29. Quesnel is a small British Columbia community of 11,000 people with two senior secondary schools. Mr. Kempling is one of four counsellors at one of these schools, Correlieu Secondary, a school with 800 students.

30. It may be worthwhile to take note of the particular difficulties this minority group might face in Quesnel schools. While no evidence was adduced by the College on this point, it seemed to underscore the submissions of all the parties. Even Mr. Kempling recognizes the seriousness of the problem of homophobia. In a letter to his District's Director of Curriculum and submitted to the College in response to the allegations against him, he writes: Now we do have a problem with harassment and name-calling in our schools. It is primarily directed by heterosexual boys at other heterosexual boys who don't quite conform to the "accepted" masculine identity... This is the situation which led to the suicide of that young man in Surrey recently. He was not gay, but wasn't quite as "masculine" as his peers thought he should be, and thus was taunted unmercifully...

31. Whatever method Mr. Kempling used to divine that the victims of homophobic harassment are "primarily" heterosexual, it is apparent that he concedes (a) that some victims of homophobia are gay and (b) that the homophobic harassment of students can have fatal consequences. In another letter provided to the College in response to the allegations, Mr. Kempling writes: I believe you when you say that some gay people have left this community due to harassment.

32. The particular role of the schools in promoting a tolerant society has been discussed in a number of cases. For our purposes, the most significant are Ross, supra and Chamberlain v. Surrey School District No. 36 2000 BCCA 519, B.C.J. No. 1875.

33. Ross concerned allegations that it was discriminatory for the School District to take no disciplinary action against an outspokenly anti-Semitic school teacher. In that case, the Supreme Court made reference to the right "to be educated in a school system that is free from bias, prejudice and intolerance". The role of teachers in this process was emphasized by the Court at para. 44: By their conduct, teachers as "medium" must be perceived to uphold the values, beliefs and knowledge sought to be transmitted in the school system.

34. In Chamberlain, supra, at issue was the refusal of the School Board to approve certain children's books depicting families with same-sex parents. In holding that the refusal to approve the books could not be supported, the B.C. Court of Appeal noted at para. 40 that: The public schools must teach in accordance with the highest morality and the fundamental principles of truly free society are attributes of the highest morality. That highest morality includes non-discrimination on grounds of sexual orientation. The public schools ...cannot teach a morality that is inconsistent with it.

35. The Court of Appeal's decision was upheld in this respect by the majority of the Supreme Court of Canada in Chamberlain v. Surrey School District No. 36 2002 SCC 86. There, Chief Justice McLachlin wrote for the Court at para. 20: [I]f the school is to function in an atmosphere of tolerance and respect, in accordance with s. 76, the view that a certain lawful way of living is morally questionable cannot become the basis of school policy. Parents need not abandon their own commitments, or their view that the practices of others are undesirable. But where the school curriculum requires that a broad array of family models be taught in the classroom, a secular school system cannot exclude certain lawful family models simply on the ground that one group of parents finds them morally questionable.

36. Even the dissenting reasons of Gonthier J. (writing for himself and Bastarache J.) support the duty of schools to advocate non-discrimination. He wrote, at para. 140: [P]ublic schools in British Columbia are obliged to conform their teaching to Charter values, such as the principle of non-discrimination against persons on the basis of their sexual orientation, embodied by s. 15 and affirmed by several decisions of this Court, such as Egan v. Canada, [1995] 2 S.C.R. 513, and Vriend, supra.

37. As an aside, the BCCLA notes that Mr. Kempling on two occasions concedes that the School Act should guide his conduct, and his speech, inside and outside the classroom. In his letter to the editor of July 19, 2000, he says: I refuse to be a false teacher... Section 95(2) of the School Act states that teachers must "inculcate the highest moral standards." And again, in his letter of August 6 2000 to Mr. Graf: I... know that in our task of inculcating the highest moral standards, as required by the School Act, we must not be encouraging or condoning immoral behaviours. And in the second letter to Mr. Graf of October 8 2000: [I]t is my contention that the School Act obliges me to inveigh against immoral behaviour...

38. Now of course, the "immoral behaviour" to which Mr. Kempling refers is homosexuality, which he considers a "perversion". Opposition to homosexuality is not, according to the Supreme Court, an aspect of the "highest morality" for the purposes of the School Act, in fact, just the opposite is true. If one defines "immoral behaviour" as discrimination against homosexuals, as the Courts in Chamberlain have found, the import of Mr. Kempling's concession becomes clear. (3) Is Proof of Harm Required?

39. In previous cases, the BCCLA has consistently cautioned against the invocation of inchoate or speculative 'harm' when justifying restrictions on speech. While censorship - even criminal sanction - of speech has been justified on the basis of speculative harm, the BCCLA has argued that speculative connections are insufficient for criminal sanction, and in many cases would be insufficient to support even an administrative penalty.

40. To give an example, the Supreme Court's decision in R. v. Butler, [1992] 1 S.C.R. 452, which held that if it is "reasonable to presume" that a certain speech will result in social harm, criminal sanction of it was justifiable, has never enjoyed the support of the Association.

41. Ross, supra, followed Butler, and the Court said that: I think it is sufficient that the Board found it "reasonable to anticipate" that there was a causal relationship between the respondent's conduct and the harm -- the poisoned educational environment.

42. Again, the Association does not here adopt the reasoning of the Ross Court; the BCCLA does not endorse the position that a mere "reasonable anticipation" of some harm should be the test for satisfying section 1 in case of speech infringements. Indeed, it is the BCCLA's position that in cases of criminal prohibition on speech, even many forms of choate harm should be tolerated before speech is restricted, on the grounds that censorship is itself more harmful than the harm to which free speech has sometimes led.

43. In the course of this Argument, the BCCLA will submit that infringements on Mr. Kempling's expression need not be justified on the basis of speculation of harm. (4) When Expression is Harmful in Itself

44. Civil libertarians generally, and the BCCLA in particular, have always recognized that there are some instances where speech itself is harm, when the effect of the speech is not to contribute to the free marketplace of ideas, but rather to elicit an immediate reaction without pause for reflection. The cliché may be shouting 'fire' in a crowded theatre, or the argument that one's right to speech might not extend to protect, for instance, the words 'ready, aim, fire'. A public sign saying "no blacks allowed" is another, more analogous example.

45. In this last example, such a sign can be viewed as immediately harmful to a legally-mandated non-discriminatory environment. When the non-discriminatory environment is, as in B.C.'s schools, mandated by both the Constitution and the School Act, the harm is particularly serious.

46. The underlying justification for all of these exceptions to the rule of free expression is that the restricted speech constitutes an act which is in itself harmful. It doesn't matter whether consequent harm arises to an assignable person - i.e., the impact of a threat upon a particular victim is not relevant to the illegality of the act of threatening; the threat might be made illegal even if it were lost in the mail. In a legally-mandated non-discriminatory environment, the harm of the speech is to the integrity of that environment which the law has deemed must operate according to certain principles of equality, tolerance and respect.

47. In the United States, the Supreme Court has in the past categorically excluded many forms of speech from the ambit of the First Amendment. In the leading case of Chaplinsky v. State of New Hampshire, 315 U.S. 568 (1942), the U.S. Supreme Court said at 571-2: Allowing the broadest scope to the language and purpose of the Fourteenth Amendment, it is well understood that the right of free speech is not absolute at all times and under all circumstances. There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which has never been thought to raise any Constitutional problem. These include the lewd and obscene, the profane, the libellous, and the insulting or 'fighting' words-those which by their very utterance inflict injury or tend to incite an immediate breach of the peace. It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality. 'Resort to epithets or personal abuse is not in any proper sense communication of information or opinion safeguarded by the Constitution, and its punishment as a criminal act would raise no question under that instrument.' Cantwell v. Connecticut, 310 U.S. 296, 309 , 310 S., 60 S.Ct. 900, 906, 128 A.L.R. 1352.

48. Professor Tribe, after recognizing that the primary objective of the First Amendment is to protect speech that promotes 'dialogue,' notes that: The premise that speech has special value only in the context of dialogue underlies the dictum of Justice Murphy in the seminal case of Chaplinsky v. New Hampshire, in which the Court singled out certain categories of speech as not representing "speech" within the meaning of the first amendment because they are 'no essential part of any exposition of ideas,' and because their 'very utterance inflicts injury' or 'tends to incite an immediate breach of the peace.'

49. Professor Tribe later explains that: The overriding idea in Chaplinsky is thus the isolation of those 'utterances [that] are no essential part of any exposition of ideas [and] of …slight social value as a step to truth'…'more talk' is exceedingly unlikely to cure the injury: a lie once loosed is hardly quelled by self-serving denials, and once a secret is out of the bag, it cannot be put back in again.

50. The Canadian approach has been different. Under the Charter, all communicative activity conduct short of violence is classified as "expression" and is subject to prima facie protection under s. 2(b), and any infringement must be justified under s. 1.

51. As part of that process, Canadian Courts will determine how close to the "core" the speech in question is. However, the restriction even of speech at the periphery of protection must in Canada be justified by the government.

52. The Canadian approach also accommodates the fact that communication is complex, and may be simultaneously contain statements considered unworthy of protection and also a communication close to the core of constitutional protection, as is arguably the case here.

53. Without expressing a preference for one or another method of parsing directly harmful speech from that which might only be speculatively harmful, the BCCLA's submissions follow the 'balancing' analysis adopted by the Supreme Court of Canada.

54. The BCCLA submits that expression which constitutes harm in itself is a discrete category of activity that exists at the very periphery of public speech and may be regulated, at least non-criminally, in ways that other forms of expression might not. (5) Evidence of Beliefs Alone is Not Sufficient

55. The BCCLA cautions that evidence of beliefs alone, even if they might give rise to the suspicion that the person holding them might act upon them in a way that could impact on professional performance, should not generally trigger sanctions under the rubric of "conduct unbecoming".

56. In Trinity Western University v. British Columbia College of Teachers [2001] S.C.J. No. 32, the Supreme Court accepted that while TWU's 'no sexual sins' policy may have been discriminatory (in that it specifically banned homosexual activity while permitting sex within heterosexual marriages), it was at best only some indication of its graduates' religious or moral beliefs. In no case was it suggested that any TWU graduate was engaging in discriminatory conduct, or indeed in any conduct that was in any way objectionable.

57. Certainly there was nothing to suggest that TWU graduates were committed to rejecting the notions of a secular, tolerant and non-discriminatory environment, or had announced their attention to discriminate against gay students in the course of their profession. There was, in short, not even the allegation that TWU's graduates were discriminating or would discriminate in any way in their professional capacities. III. APPLICATION OF THE LEGAL PRINCIPLES TO THE FACTS A. Mr. Kempling's Public Writings Announce an Intention to Discriminate

58. Mr. Kempling's earliest writings in the Record, while critical of "gay culture" and gay relationships, can be characterized as religious and political discussion, while undoubtedly offensive to some, to which the highest constitutional protections would apply. This is particularly so when he is discussing issues removed from the educational context. Examples of Mr. Kempling's more restrained submissions on topics related to homosexuality can be found in his article of July 27, 1997, and his letters to the editor of August 10, 1997, and April 12 2000 .

59. Nevertheless, even these of Mr. Kempling's public comments, and the surrounding controversy, cannot be separated entirely from his professional position. The editors of the Quesnel Cariboo Observer averred early on to the "ongoing debate" of the "issue, first raised by local student counsellor Chris Kempling." It is an unfortunate fact of life that Mr. Kempling cannot entirely separate his personal activities from his professional position, particularly in a small community. Nevertheless, respect for Mr. Kempling's right to pursue his religious and political activities should be given all possible latitude.

60. The issue of whether Mr. Kempling's most neutral writings discussing homosexuality and the "Pride Day" controversy, uttered 'qua citizen', could rise to the level, as in Ross, of creating a "poisoned environment" for students or for a protected group is not necessary to answer here.

61. As the BCCLA has submitted, Mr. Kempling should be afforded the opportunity to pursue his political and religious activism separately from his profession. Yet after the public debate began, Mr. Kempling decided to make the link between his campaign qua citizen and his activities qua teacher and counsellor explicit. On August 27, 1997, he wrote in a letter to the editor: ...I am putting my professional reputation on the line over the homosexuality issue... some are questioning my competence to counsel. I have a professional concern as to what children are taught about homosexuality... Did [the 'gay lobby'] think no one would check into the behaviours they would like us to teach school children is [sic] acceptable? ...I want young people to know that the way gays actually practice their sexual preference is extremely risky and might even be life threatening. ...Sexual orientations can be changed... My hope is that students who are confused over their sexual orientation will come to see me... It could save their lives.

62. Subsequently, Mr. Kempling made a second explicit reference linking his views on homosexuality (this time in the context of a debate over the institution of "Pride Day" in Quesnel) with his performance in school. Indeed he suggests that his role as teacher actually mandates the public position he takes: 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". To all my critics I say, 2 Peter 2:4-19. Read it and weep.

63. As the BCCLA has pointed out, many of Mr. Kempling's public statements regarding homosexuality would be entitled to the highest protections and ought not to be the subject of sanction in themselves. The difficulty is that the entirety of Mr. Kempling's public statements have become tainted by Mr. Kempling's explicit linking of his views with his job as a teacher and counsellor. Thus, for instance, when he writes in his letter to the editor on July 1, 2000 of his views regarding the supposed immorality and abnormalcy of homosexuality, it must be read in the light of the previous communications in which Mr. Kempling referred to what he believed regarding the teaching of "children" and "students". A reader would reasonably infer that his self-reference as a "mental health professional" is an invocation of his position in the school system when he says: The majority of religions consider [homosexual] behaviour to be immoral, and many mental health professionals, including myself, believe homosexuality to be the result of abnormal psycho-social influences. Homosexuality is not something to be applauded.

64. Mr. Kempling's public statements constitute more than a few comments revealing of his point of view. Instead, it is difficult to see them as anything but part of a sustained campaign against homosexual behaviour, which Mr. Kempling refers to as immoral and a perversion. That Mr. Kempling, or anyone, holds these views is in the opinion of the Association unfortunate, but the Association would nevertheless, in almost any other context, defend his right to articulate them in the public forum.

65. The BCCLA focuses on the fact that Mr. Kempling has made it abundantly clear through his published writing that his religiously-based views that homosexuality is "immoral" and a "perversion" will inform his performance in his position at the school.

66. The BCCLA submits that this Court may conclude that Mr. Kempling has announced, through his public writings taken as a whole and in context, an intention to discriminate against gay and lesbian students contrary to the environment of tolerance, equality and dignity to which homosexuals are entitled under the Charter of Rights and School Act of British Columbia. B. Announcing an Intention to Discriminate Can Be Harm in Itself

67. In the BCCLA's submission, Mr. Kempling's public statements in question indicate, not only a particular belief set, but also an unwavering commitment to acting in an intolerant and discriminatory way in his professional activities. Under such circumstances, the speech itself has harmed the integrity of the school system as a non-discriminatory entity, in the same way as if Mr. Kempling had hung a sign outside his door saying 'No Gays'.

68. The BCCLA submits that Mr. Kempling's published speech at issue is equivalent to that contemplated in section 7(1)(a) of the Human Rights Code R.S.B.C. 1996, c. 211. This provision states that: 7 (1) A person must not publish, issue or display, or cause to be published, issued or displayed, any statement, publication, notice, sign, symbol, emblem or other representation that (a) indicates discrimination or an intention to discriminate against a person or a group or class of persons, or because of the race, colour, ancestry, place of origin, religion, marital status, family status, physical or mental disability, sex, sexual orientation or age of that person or that group or class of persons.

69. Sub-section 7(1)(a), which forbids a business from, for instance, displaying a sign that says "no blacks allowed" can be justified as it is not based upon allegations that the speech might, in some distant way, lead to harm, but rather that the speech itself is the harm; it represents a real barrier to access and equality.

70. There is another aspect of Mr. Kempling's speech that suggests that it should be classified as harmful in itself. That is that Mr. Kempling has committed himself to a course of conduct in his profession that disregards his legal obligations.

71. Mr. Kempling, like any teacher, has a legal obligation to not discriminate against homosexuals vis-a-vis heterosexuals in the course of his work (as the Courts in Ross, and more particularly, Chamberlain, all supra have held). In this context, announcing an intention to discriminate is a public commitment by Mr. Kempling to an unlawful course of activity. A public commitment by Mr. Kempling to ignore any of his legal obligations regarding his treatment of students is an immediate harm to the institutional commitments of schools to non-discrimination, whether or not Mr. Kempling's commitment is acted upon. In such a context, again, it is the commitment that is the harm, the "conduct unbecoming"; the College is permitted to act whether or not Mr. Kempling actually commits the legal wrong he has promised he will.

72. Characterizing Mr. Kempling's public writings in this way does not end the story; the balancing of all the contextual factors must still take place, and it must be considered that other of Mr. Kempling's public writing would almost certainly be, taken alone, worthy of significant protection such that restriction would not be appropriate.

73. However, the BCCLA submits that Mr. Kempling's public writing should be viewed as a whole, and that, when so viewed in light of Mr. Kempling's explicit linking of his views with his position as teacher and counsellor, the notoriety of his public campaign, the interests of students, and in particular gay students, attempts by the College to restrict Mr. Kempling's statements (or perhaps more exactly, to restrict his freedom to engage in his chosen profession if the statements are made ) are a reasonable response. C. Mr. Kempling's Private and Unpublished Writing

74. A troubling aspect of this case is a series of writings that were not part of the public debate upon which the BCCLA's submissions have been focused, but rather can be characterized as of a more private nature.

75. While the BCCLA has argued that certain restrictions on Mr. Kempling's public expression can be demonstrably justified in a free and democratic society, the Association's submissions with respect to those communications that are private are somewhat different.

76. The BCCLA here describes Mr. Kempling's private writings in three discrete categories, each of which should, in our view, be independently considered. They are: · Mr. Kempling's three letters to City Councillors; · Mr. Kempling's two essays; and · Mr. Kempling's two letters to Mr. Graf. (1) The Letters to Council

77. On July 22, 2000, Mr. Kempling wrote a letter to Councillor Mike Doyle in response to his open letter to the newspaper . While assertive of Mr. Kempling's views, this letter is written to a political figure in the context of a political debate. It is a communication close to the core of protected speech, and there appears to be no countervailing equality interest, not even of the speculative 'poisoned environment' variety, to overcome Mr. Kempling's expression rights in such an instance.

78. In a second letter of July 31, 2000 to Councillor Nate Bello, Mr. Kempling does make reference to his position as student counsellor, in the context of suggesting that he cannot counsel students to engage in "sodomy", which he regards as criminal behaviour for a person under 18.

79. Then Mr. Kempling says: I do not hate gay people... I am willing to judge them for their reckless behaviour, just as you do with liars, assaulters and cheats...

80. While perhaps more distasteful than the first letter, the July 31, 2000 letter is private communication to a government official; while in some circumstances this letter might be the appropriate subject for review in the employment context, it does not seem to have any public element that might lead a person to believe that confidence in the schools would be eroded as a result of its having been written. The same can in our view be said of the August 12, 2000 letter to Councillor Barry Nordin .

81. In the view of the BCCLA, the communications to City Council can be aptly described as being written "qua citizen" in the course of Mr. Kempling's interaction with his local government and the debate over its decision to implement "Pride Day." There is in our submission no countervailing interest of equality in the school setting that could be considered "conduct unbecoming" so as to attract the intervention of the College. (2) The Essays

82. The extent of the distribution of the two essays, "Sexual Orientation Curricula" (March 14, 2000)) and "Hope Versus Pride" (December 22, 2000) attributed to Mr. Kempling is not clear from the Record. The evidence indicates that these documents were provided by Mr. Kempling to the College in response to the Report of Preliminary Investigation early in the College's process. It is not certain how widely they were distributed, if they were distributed at all.

83. The commentary in the Record surrounding these documents seems to suggest that they came to the College's attention only through Mr. Kempling's submission of them as part of the investigative process. While they may not be "private writings" as such, in that they were obviously intended for (at least limited) distribution, nor do they seem to have formed any part of the public controversy surrounding Mr. Kempling in the period in question. (3) The Graf Letters

84. Mr. Kempling wrote two letters to Mr. Graf, on August 6, 2000 and October 8, 2000. Mr. Graf is apparently Director of Instruction of the Quesnel School District. The first letter was also addressed to several school principals, including, presumably, Mr. Kempling's supervisor.

85. At least one of the Graf letters was provided to the College by Mr. Kempling in response to the Report of Preliminary Investigation. It appears that the second may have been obtained directly from Mr. Graf. (4) The Use to Which the Private Writings Might Legitimately be Put

86. Whether this Court adopts the College's "poisoned environment" or "public confidence" arguments, or confines itself to the narrower "announced intention to discriminate" submissions of the BCCLA, it must, in our submission, focus on the public writings of Mr. Kempling exclusively when determining if the gravamen of the offence of "conduct unbecoming" is made out.

87. In the BCCLA's submission, only the two essays could possibly be classified as public writing so as to become relevant in consideration of the merits of the Citation, although in the Association's view this would have required more evidence of their distribution than was elicited at the hearing.

88. Mr. Kempling's private letters to individuals, particularly government and school officials, are written qua citizen and qua employee, and should not be considered in the context of the offence faced by Mr. Kempling. The closeness of such communication to the "core" of protected expression, coupled with the tenuousness of any connection to harm, requires that the balancing of interests favours the preservation of this communication.

89. Since the bulk of the private writings were submitted by Mr. Kempling to the College as part of his response to the allegations against him, it may be appropriate to consider whether anything in the arguments Mr. Kempling presents therein cast light on his activities or provide a legal basis for his defence. It may also be permissible to refer to this private communication in the narrow context of "sentencing" (as some evidence of post-offence conduct), as Mr. Clark appears to have conceded at that hearing.

90. However, the reliance upon the private writing at the hearing of the merits of the Citation as itself examples of "conduct unbecoming" is different altogether and can not in our view be justified. The public aspect of activities covered by the College's allegations is made plain at para. 21 of the College's argument. There, the College submits that (references to the Chambers Record have been omitted): (a) Mr. Kempling is identified as a teacher in his writings and is known by the community to be a teacher... (b) Mr. Kempling's views have attracted public attention and commentary... (c) Mr. Kempling's views have been branded intolerant and discriminatory by members of the public... (d) The president of the Quesnel School Counsellor's Association and the President of the Quesnel District Teachers Association wrote letters to the Editor of the Quesnel Cariboo Observer stating that the views expressed by Mr. Kempling were not those of their respective Associations... (5) The Use to Which the Private Writings Were Put

91. At the penalty hearing, Mr. Laughton on behalf of the College refers to the private writings as 'post-offence' evidence of Mr. Kempling's unwillingness to change his course of action. As the Association has submitted, reliance upon them in this circumstance may be appropriate.

92. Also at the penalty hearing, Mr. Laughton appears to take the position that at least some of the private communications did not form part of the substantive allegations against Mr. Kempling. He says: ...the allegation against Mr. Kempling was very specific; it was that between July, 1997 through to August, 2000 - a period of three years - Mr. Kempling made discriminatory and derogatory statements against homosexuals in a number of public writings. So that is, if I call it, the offence.

93. Mr. Kempling, in his written argument, notes that by the time of the first hearing, the private communications were all listed in the Citation against him. This is easily verified. The Citation delivered to Mr. Kempling states: [A] Hearing Panel of the British Columbia College of Teachers[] will conduct a Hearing inquire into your conduct, the circumstances of which are stated in the attached schedule, to determine whether you have been guilty of... conduct unbecoming a member of the college.

94. The complaint in the Schedule says in relevant part: 3. Between July 1997 and August 2000 Mr. Kempling made discriminatory and derogatory statements against homosexuals in a number of published writings. 4. The dates and identity of the publications in which Mr. Kempling published his statements are contained in the following paragraphs.

95. The particulars, set out in paras. 5 through 18 of the Schedule, include a series of Mr. Kempling's writings on the topic of homosexuality, private and public, and include the letters to City Councillors (para. 15 of the Schedule), the Graf letters (paras. 16 and 17), and the essays (paras. 12 and 18).

96. Both the second Graf letter and the December 2000 essay were written well after the time period of the "offence" to which Mr. Laughton and the Citation both refer, and so presumably the College can be taken to be asserting that they are not part of it. It is not certain whether the March 14, 2000 paper "Sexual Orientation Curricula" is part of the substantive charges, as it cannot be discerned whether the College's Citation or Mr. Laughton during the hearing were categorizing it as a "public writing".

97. However, the "offence" is described in the Citation, and confirmed by Mr. Laughton in the hearing, to include "public writings" in August of 2000. The only writings of Mr. Kempling in that period appear to be one letter to City Council, and the first letter to Mr. Graf. Neither qualify in the BCCLA's view as "public writings" for the purposes of the analysis of "conduct unbecoming". Did the College and Mr. Laughton make a simple mistake, or were these letters considered to be part of the offence?

98. At the first hearing, Mr. Laughton, on behalf of the College, referred to the July 31 2000 letter to Councillor Bello, and the December 22, 2000 Graf letter, in a way that suggests they had become part of the case against Mr. Kempling. After reading from the letters, Mr. Laughton says that what I have reviewed supports [the argument that] [s]omeone who reads this, a reasonable person would believe that Mr. Kempling would not give his pupils their right to fair and equal treatment.

99. The reliance on private writings cannot be excused, in the Association's submission, by reference to what might happen if the private writings became public. Even if one were to accept the College's argument that sanction can be based on a reasonable inference that harm will result from the conduct (i.e. the writing), this is now twice removed - one must speculate what a person would think if the writing became public, and then speculate about the subsequent harm arising from the conclusions drawn.

100. Nor, in the BCCLA's submission, is another argument advanced by Mr. Laughton with respect to the private writings persuasive. At one point in his presentation, Mr. Laughton suggests that the private writings provide something of an interpretive guide to Mr. Kempling's public writings. Yet again, whether the College's argument is based on a poisoned environment or undermined public confidence (as the College asserts), or on the "announced intention to discriminate" analysis the BCCLA prefers, any writings which were not available to the public to assist them in the interpretation of Mr. Kempling's statements are, at best, irrelevant.

101. One final example should make the nature of the BCCLA's objections to the consideration of these private writings clear. One of the private communications relied upon as evidence of "Mr. Kempling's position that homosexuality is immoral" is the letter to Mr. Graf, the school official, on October 8, 2000. This letter constitutes a written defence by Mr. Kempling, addressed to his employer, of allegations that had been made against him, the very allegations that became central to the complaint before the College. In the second Graf letter, Mr. Kempling makes the argument that his off-duty writing should not held against him in his professional capacity. The suggestion that such a letter could itself form the basis for further complaint, or that Mr. Kempling's protests of innocence can aggravate the offence, seems vaguely Kafka-esque. D. The Inadequacy of the College's Reasons

102. Mr. Kempling is of the opinion that the finding of the College rests, at least in part, on the private communications he sent via letter to City Councillors and other officials, in which he, in the words of the written decision, "expressed his views on sexual orientation."

103. Unfortunately, the College's reasons do not identify which of Mr. Kempling's writings out of those listed 'cross the line'. The decision of the College is problematic for precisely this reason. The reasons do not establish which of Mr. Kempling's speech was permissible, and which was not.

104. In the view of the Association, when assessing disciplinary reaction to communicative behaviour, it ought to be incumbent on the regulating body to fairly concisely identify which of the speech was problematic, and why. The College has not done so, and therefore has provided no guidance to Mr. Kempling or others regarding the boundaries of appropriate conduct. This is, in the submission of the Association, highly unfortunate.

105. Nevertheless, it is useful for the BCCLA to be clear on the question of these communications. The BCCLA believes strongly in the right of citizens to petition government, and to mount the most robust possible defence when serious allegations are made, even in a non-criminal setting. For these reasons, the Association does not believe that Mr. Kempling's letters to Mssrs Bellow, Doyle, Nordin and Graf could or should support independent allegations of misconduct.

106. Nor, in our view, should these letters have been considered by the College in assessing whether Mr. Kempling's other, 'public' writings were "conduct unbecoming". While it may be true that they provide some insight into Mr. Kempling's beliefs and intentions, the College has at all points been at pains to distinguish beliefs from actions. The letters are an indication of beliefs, but they are not tantamount to "conduct" for the purposes of the College's prosecution. The censure of Mr. Kempling on the basis of these private letters would in our submission set a dangerous and unacceptable precedent, and unnecessarily chill both petitions to government and the ability of teachers to communicate with officials at various levels of the school system. IV. CONCLUSIONS AND REMEDY

107. The BCCLA respectfully submits that this Court should uphold the College's finding that Mr. Kempling's public writing, taken as a whole, is appropriately described as "conduct unbecoming" of a teacher holding a counselling position in a high school.

108. However, this Court should also find that Mr. Kempling's private correspondence and unpublished essays do not constitute "conduct unbecoming" and should not have been part of the College's Citation or its decision on the merits.

109. Taken in its entirety, the College's decision to prohibit all of Mr. Kempling's writings on the issue of homosexuality (if indeed that is what they have done) could not be justified as a 'reasonable limit' on his freedom of expression and religion.

110. Given these conclusions, it is open to question whether the penalty applied to Mr. Kempling was appropriate. While the BCCLA takes no position on what the appropriate sanction would be, it would appear that this Court enjoys the discretion to either replace the College's penalty with one of its own preference, or remit the question to the College for reconsideration.

ALL OF WHICH IS RESPECTFULLY SUBMITTED

____________________________
ELLIOTT M. MYERS, Q.C.

____________________________
CRAIG E. JONES

Counsel for the Intervenor
B.C. Civil Liberties Association

NO. L0121838
VANCOUVER REGISTRY

IN THE SUPREME COURT OF BRITISH COLUMBIA

BETWEEN:

CHRISTOPHER STEPHEN MYLES KEMPLING

PLAINTIFF

AND:

THE BRITISH COLUMBIA COLLEGE OF TEACHERS

DEFENDANT

ARGUMENT OF THE INTERVENOR
B.C. CIVIL LIBERTIES ASSOCIATION

BULL, HOUSSER & TUPPER
Barristers & Solicitors 3000 - 1055 West Georgia Street
Vancouver, B.C. V6E 3R3
Telephone: (604) 687-6575
Facsimile: (604) 641-4949
Attention: Elliott M. Myers
EMM/cej
File# 03-2811

 

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