Further Limits on Expression of Religious Belief?

Deeply held religious faith permeates every sphere of life. Spiritual people cannot effectively segregate their religious belief from their mundane, daily life.  As has been discovered by Chris Kempling, when one’s religious beliefs contradict secular values, full participation in the life of one’s community can be jeopardized.

On June 13, 2005 the B.C. Court of Appeal upheld the B.C. Supreme Court decision that Mr. Kempling committed “conduct unbecoming of a teacher” for publicly expressing his disapproval of homosexual behaviour in an article and letters to the editor that were published in a local newspaper between 1997 and 2000.  Mr. Kempling is a public school teacher and counsellor in Quesnel.  The B.C. College of Teachers disciplined him for publicly criticizing homosexuality and the homosexual lifestyle. 

Mr. Kempling appealed the College of Teachers decision to the B.C. Supreme Court and lost.  He then appealed to the Court of Appeal and lost again.

The Court found that Mr. Kempling’s public statement were discriminatory.  While the Court also held that the punishment meted out to him violated his right to free expression under the Charter, it went on to hold that the infringement of his rights was justified. 

Characterization of Speech
Central to Kempling’s case is the characterization of his speech and whether or not one can engage in critical speech on a moral issue. . In answering this question, the Court drew a distinction between “reasoned debate” and “discriminatory rhetoric”, finding that Mr. Kempling’s statements fell into the latter category. The Court held that it is not necessarily discriminatory to be critical of a person’s way of life or to denounce a particular lifestyle.  Such statements become discriminatory when they disregard an individual’s inherent dignity, hold people in contempt or judge them on stereotypical characteristics.

The difficulty with is that it will be very difficult for people to distinguish between “reasoned debate” and “discriminatory rhetoric”.  As in Mr. Kempling’s case, those that members of a professional association, like teachers, architects and lawyers, may be penalized for failing to properly discern the dividing line. This is going to result in a chill on free debate and expression on issues of morality.

Nature of the Harm
Prior cases in which a teachers’ off-duty conduct had been the subject of disciplinary action by their professional association had always involved fairly clear proof that the conduct complained of had caused harm to the public school system.  In Mr. Kempling’s case, there was no evidence that his public comments had directly affected the public schools in which teaches. 

The Court of Appeal held that “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 necessary result.” 

This aspect of the decision limits the ability of professional people to engage in political discourse, particularly if they wish to speak out on unpopular or politically incorrect side of a moral issue on which others are protected from discrimination. For example, doctors and nurses who speak out in their professional capacity regarding the health risks of certain sexual conduct may be cited for “conduct unbecoming” by their professional associations, as their comments may be seen as intolerant, discriminatory or in conflict with the values that underpin the health care system.

Freedom of Religion
Mr. Kempling also argued that the College of Teacher’s decision to suspend him infringed his freedom of religion under the Charter.

Despite the fact that Mr. Kempling expressly linked some of his statements to his religious beliefs, the Court of Appeal ruled that because Mr. Kempling did not appear before the initial disciplinary panel there was no evidence upon which to assess whether his freedom of religion had been infringed. The Court said that there was no evidence the Mr. Kempling’s “ability to practice his religion would in any way be compromised”. 

It would have been preferable for Mr. Kempling to have provided evidence about the religious motivation for his public statements.  Notwithstanding that, the very first Supreme Court of Canada decision interpreting freedom of religion under the Charter established that at a minimum, freedom of religion included the right to openly “declare beliefs … without fear of hindrance or reprisal”.   Religious liberty must allow Canadians to express religiously based opinions and beliefs, subject only to proof that the beliefs are sincerely held.  While religious people should never allow religion to be used a fraudulent veneer for hate, when statements are truly the product of deeply held religious belief, they should be protected under the Charter. 

Conclusion
It appears that Mr. Kempling may seek leave to appeal to the Supreme Court of Canada.  I hope he does because the Court of Appeal’s decision may have profound impacts on the ability of religious people to publicly comment on contentious moral issues. 

This article was written by Kevin L. Boonstra and Ian C. Moes, lawyers who practice in constitutional law with the law firm of Kuhn LLP. It is only intended as a guide and cannot cover every situation. It is important to get legal advice for specific situations. If you have questions or comments about this case or other construction law matters, please contact us at 604-864-8877.