Freedom of Expression - What harm is there?

Religious freedom without freedom of expression is not freedom at all.  Many Christians are members of a professional association, such as teachers, nurses, doctors, lawyers, accountants, architects and others, where codes of conduct govern their behaviour. But are these individuals free to express their religious views without being subject to disciplinary action by their association?

In 2005, the British Columbia Court of Appeal held that Chris Kempling had committed conduct unbecoming of a teacher for publicly expressing his disapproval of homosexual behaviour in a local newspaper. The Court found 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.”

More recently, the Saskatchewan Court of Appeal decided a case where, Bill Whatcott, a licensed practical nurse, had been found guilty of professional misconduct by his professional association.  Mr. Whatcott had picketed the office of Planned Parenthood, criticizing their involvement with abortion. The Discipline Committee had suspended Mr. Whatcott from work for a total of 45 days and ordered him to pay $15,000 in costs to the Discipline Committee.

However, the Saskatchewan Court of Appeal saw things differently. Most notably they found that the Discipline Committee failed to consider whether their decision infringed Mr. Whatcott’s fundamental right to freedom of expression under the Charter.   The Court concluded that there was no rational connection between the punishment and the “crime” stating: “What is at stake is the image of the licensed nursing profession, but there is no evidence that any member of the public thinks or will think less of nurses because of Mr. Whatcott’s behaviour. In the absence of evidence that any member of the public thinks or will think less of nurses because of Mr. Whatcott’s behaviour. In the absence of evidence, one way or the other, one might as easily hypothesize that licensed practical nurses are respected, as a general rule, not for what occurs during their off duty hours, but for their direct activities in the care of patients.”

The Saskatchewan Court of Appeal’s requirement that evidence of harm be produced is a better, and higher, standard than the deeming of a harm that occurred in the Kempling case. Unfortunately, the Saskatchewan Court of Appeal’s decision is not binding in British Columbia, so professionals in British Columbia must be careful when commenting publicly on contentious moral issues.  To do otherwise may be to incur the wrath of their professional association’s discipline committee. While these committees are required to consider the professional’s Charter rights and show that the discipline is rationally connected to the objectives of the association, the uncertainty ultimately results in a chill on freedom of expression.

This article was written by Robert G. Kuhn 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.