Deeply held religious faith permeates every sphere of life. Spiritual people cannot segregate their religious belief from their mundane, daily life. A robust understanding of religious liberty would not require that they try to do so.
As has been discovered by a teacher in British Columbia, when one’s religious beliefs contradict secular values, full participation in the life of one’s community can be jeopardized. So can one’s membership in his or her professional association and, indeed, his or her ability to continue making a living. How can a country that appears to have such strong protections for religious belief and practice permit this to occur?
Chris Kempling is a public school teacher and counselor in the small northern town of Quesnel, British Columbia. He is a devoted evangelical Christian and is outspoken in his community. He is concerned about what he sees occurring in Canadian society, particularly with respect to the growing acceptance of the homosexual lifestyle, which Mr. Kempling believes to be both unhealthy and immoral.
Between 1997 and 2000 Mr. Kempling wrote and published an article and a series of letters to the editor in his local newspaper, the Quesnel Cariboo Observer. Mr. Kempling’s topic was homosexuality and homosexual relationships. Not surprisingly, Mr. Kempling is opposed to homosexual behavior because of his religious beliefs, and his beliefs were discussed at length in the articles and letters he published. There were even specific scriptural references that made the religious origin of his beliefs and comments quite clear.
His professional body, the British Columbia College of Teachers, received a complaint about his writings and decided that he had been guilty of conduct unbecoming a member. The College of Teachers found that Mr. Kempling’s writings demonstrated that “he is not prepared to take into account the core values of the educational systems which recognizes that homosexuals have a right to equality, personal dignity and respect.…”
Mr. Kempling challenged the college’s decision in court, arguing that it and the punishment handed out to him (a one-month suspension) infringed on his freedom of religion and freedom of expression under the Canadian Charter of Rights and Freedoms (the “Charter”).
At the British Columbia Supreme Court, Mr. Kempling lost his case. The judge held that since Mr. Kempling referenced his position as a public school teacher in his writings, the statements that he made were not protected by the Charter. This was a very peculiar result. In effect, the court held that one has no freedom of expression or freedom of religion in the context of one’s employment or profession. If this were the true state of Canadian law, a professional person could never reference his or her professional expertise without risking that very designation if the professional disciplinary body believes that the statements could be discriminatory. 
Mr. Kempling appealed the court’s decision. Interestingly, the College of Teachers did not support the lower court’s ruling, conceding that the discipline did breach Mr. Kempling’s Charter rights, but arguing that the breaches were justifiable.
On June 13, 2005, the B.C. Court of Appeal upheld the lower court decision but for different reasons. The Court of Appeal rejected the notion that Mr. Kempling’s religious expression was not protected by the Charter but agreed with the college that its disciplinary decision was justifiable.
Discriminatory Statements?
The Court of Appeal agreed that Mr. Kempling’s public statements were discriminatory. It was argued before the court that in debates about moral issues, those on either side of the debate judge and often denounce particular actions and behaviors of others. This is particularly true when the issue under debate is one on which religions have much to say, such as homosexual relationships and behaviors. Such debates are often emotional and controversial. That is the very nature of religious disagreement in a free and democratic society.
Labeling one side of the debate as discriminatory can have the effect of shutting down that viewpoint. That risks undermining a vibrant notion of pluralism and, worse, risks silencing those with religious objections to certain sexual conduct.
The court agreed that “statements critical of a person’s way of life or which denounce a particular lifestyle are not in themselves discriminatory.” However, the court went on to hold that when such statements “are made in disregard of an individual’s inherent dignity,” they become discriminatory. This is quite confusing at first blush. How can someone know, when being critical of a certain lifestyle, whether they are disregarding someone else’s dignity? How can this test effectively be used to govern one’s statements without having a massive chilling effect on free expression?
The court attempted to explain the difference. It held that when statements are based on stereotypical notions about homosexuality, they evidence a willingness to judge individuals on the basis of those stereotypes. With this logic in hand, the court concluded that Mr. Kempling’s statements that “gay people are seriously at risk…because of their sexual behaviour” and that the homosexual community engages in “irresponsible behaviour” were discriminatory against homosexuals.
This reasoning lessens the constitutional protection afforded to an individual who makes statements concerning the sexual behavior of homosexuals because the statements are made about the group as a whole. Based on this decision, it is much easier to find that an infringement of freedom of expression or freedom of religion is justifiable if the underlying religiously motivated speech is deemed to be “discriminatory” and therefore less worthy of protection.
The protection afforded to gays and lesbians in Canada is based on their membership in a group that is defined by its sexual practices. Criticism of the group because of the sexual practices of many of the members of the group is deemed “discriminatory” because it is perceived to show a willingness to judge individual homosexuals on the basis of group “stereotypes.”
The question then arises: If Mr. Kempling had deliberately recast his remarks to criticize only persons who engage in very specific sexual behavior, would his speech still be found to be discriminatory? Probably it would. This is so because the court specifically ruled that there is a difference between “reasoned debate” and “discriminatory rhetoric.” “Reasoned debate” is permissible and should receive full Charter protection, but “discriminatory rhetoric” will not be permitted. Mr. Kempling’s statements were found to fall in the latter category.
It will be very difficult for anyone to distinguish between “reasoned debate” and “discriminatory rhetoric.” As is shown by Mr. Kempling’s case, those who are members of a professional association, such as teachers, architects, and lawyers, may be penalized for failing to properly discern the dividing line. This will evitably result in a chill on free debate and expression on issues of morality. How does one draw the line where “reasoned debate” ends and “discriminatory rhetoric” begins?
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.
Nature of the Harm
Unlike prior cases in which a teacher’s off-duty conduct had been the subject of disciplinary action by their professional association, there had always been a need for 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 he 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 is distinct from the result in the first court decision, which found that there would be no protection when one’s profession is referenced in the writings or statements. However, the impact may be the same, provided that the professional’s statements have crossed from “reasoned debate” into “discriminatory rhetoric.”
This aspect of the Court of Appeal’s decision limits the ability of professional people to engage in political discourse, particularly if they wish to speak out on an 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 Teachers’ 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 that 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 at the disciplinary hearings. 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 the freedom to express religiously based opinions and beliefs, subject to proof that the beliefs are sincerely held. While neither religious people nor the courts should ever allow religion to be used as a fraudulent veneer for hate, when statements are truly the product of deeply held religious belief, they should be protected under the Charter.
Mr. Kempling’s statements made specific reference to Scripture and morality. His nonappearance at the original disciplinary hearing created a difficulty in that the sincerity of those beliefs could not be tested. But the College of Teachers did not contest the sincerity of his religious faith or the fact that his statements about homosexuality were derived from his religious beliefs. As such, there was a basis on which the Court of Appeal could have made specific determinations concerning the impact on the ability of Mr. Kempling to exercise free religious expression.
Conclusion
Mr. Kempling sought leave to appeal the Court of Appeal’s decision to the Supreme Court of Canada. On January 19, 2006, the Supreme Court of Canada dismissed Mr. Kempling’s application for leave and awarded costs against him. It is possible that the Supreme Court justices who dealt with the application were concerned about the fact that Mr. Kempling did not appear at the original hearing and, as such, a full evidentiary foundation did not exist. This is only speculation, since the Supreme Court of Canada does not provide reasons when deciding issues of leave to appeal.
For the time being, the Court of Appeal’s decision, which permits professionals to be punished when their statements cross from being “reasoned debate” into “discriminatory rhetoric,” is the law, at least in British Columbia. The Court of Appeal’s decision may have profound impacts on the ability of religious people to publicly comment on contentious moral issues. There may be a chilling effect, even on “reasoned debate,” when it comes to contentious issues of morality, including sexual morality. Few professional people will want to be the next Chris Kempling, and therefore they may censor themselves. This would be real loss for a free and democratic society, as Canada claims to be.
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Kevin L. Boonstra is a partner in the law firm Kuhn and Company, practicing in Vancouver and Abbotsford, British Columbia. He was co-counsel for the Canadian Religious Freedom Alliance, which intervened in Mr. Kempling’s case at the B.C. Court of Appeal.
1 This is the same professional body against which Trinity Western University took legal action for failing to approve its teacher education program. The College of Teachers refused to approve the program because it said that TWU engaged in “discriminatory practices” for prohibiting its students to engage in homosexual behavior. TWU was successful throughout and the Supreme Court of Canada ordered the College of Teachers to approve the program (Trinity Western University v. British Columbia College of Teachers, [2001] 1 S.C.R. 772).
2 For example, in Ross v. New Brunswick School District No. 15, [1996] 1 S.C.R. 825, the Supreme Court of Canada upheld a finding of discrimination against a teacher who had engaged in anti-Semitic writings off-duty. The court found that the writings had made their way into the school and had caused a “poisoned environment.” As such, the court found that the off-duty conduct specifically caused harm to the public school system.
3 R. v. Big M Drug Mart, [1985] 1S.C.R. 295 at 336.
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