Off-Duty Discriminatory Comments Justify Findings of Professional Misconduct

by: Victoria Reaume and Brian Hanulik

The BC Court of Appeal recently decided a case that raised questions about the validity of professional disciplinary proceedings against a teacher in the provincial school system for public statements that he made about homosexuality. In Kempling v. British Columbia College of Teachers, 2005 BCCA 327, Kempling was an experienced teacher and registered clinical counsellor who taught at a secondary school in a relatively small community. At the time of these events, Kempling had been a member of the teaching profession for approximately twenty years, and had no prior history of discipline for professional misconduct.

The College proceedings against Kempling concerned an article and several letters to the editor that he wrote in a local newspaper in which he associated homosexuality with immorality, abnormality, perversion and promiscuity. The Panel found that Kempling’s writings were discriminatory and demonstrated that he was not prepared to accommodate the core values of the education system, specifically the value of non-discrimination. As a result, Kempling was found guilty of “conduct unbecoming a member”. In BC, section 4 of the Teaching Profession Act directs that the College of Teachers set standards for the profession. The College has developed a document entitled Standards for the Education, Competence, and Professional Conduct of Educators in British Columbia (available at www.bcct.ca), which provides that members have specified responsibilities both to the public and to the profession generally.

Kempling did not attend the first part of the disciplinary proceedings against him, but did attend the penalty phase of the hearing. In recognition of the serious nature of the professional misconduct involved, the panel hearing the case decided to impose a one-month suspension of Kempling’s teaching certificate.

Kempling appealed both the finding of professional misconduct and the penalty imposed on him by the Panel, to the Supreme Court of British Columbia on the grounds that the hearing was flawed by procedural unfairness, and that his Charter rights had been infringed. The B.C. Supreme Court dismissed the appeal, which Kempling then appealed to the British Columbia Court of Appeal.

The Court of Appeal upheld the lower court’s decision and dismissed the appeal. The Court stated that the conclusion that Kempling’s writings were discriminatory was “unassailable” as the writings contained statements that were based on stereotypical notions of homosexuality and a willingness to judge individuals on the basis of those stereotypes. The Court also confirmed that a teacher may be disciplined by his governing College for off-duty conduct when that conduct negatively impacts the school system or impugns the teacher’s ability to carry out his professional duties.

The Court stated that the finding of professional misconduct was reasonable. Furthermore, such a finding “may be justified on the basis that a teacher’s conduct caused harm to the educational system” and did not require a finding that any particular student or parent was harmed. According to the Court, when a teacher makes public statements espousing discriminatory views which are linked to his or her professional position as a teacher, harm to the integrity of the school system will result. In particular, the Court found that the following harm had occurred in this case:

• loss of public confidence in Kempling and the public school system;
• loss of respect by the students for Kempling and other teachers generally;
• controversy within the school system that would disrupt its proper functioning; and
• reluctance on the part of homosexual students to approach Kempling for counselling, thereby impairing his ability to carry out his professional duties.

With respect to Kempling’s Charter rights, the Court found no evidence in this case that the College’s decision infringed either his right to freedom of religion under s. 2(a) or his right to equality under s. 15 of the Charter. The Court did find that the one-month suspension of Kempling’s teaching certificate and the curtailment of his right to publish such comments was a violation of his right to free expression under s. 2(b), however, the Court found that the disciplinary action by the College was saved by s. 1 of the Charter as a “reasonable limit prescribed by law as can be demonstrably justified in a free and democratic society”.

In so finding, the Court held that Kempling:

...can remain a BCCT member and continue while off duty to express his views on homosexuality by way of reasoned discourse benefiting 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.

Kempling’s application to appeal the Court of Appeal’s decision was dismissed by the Supreme Court of Canada on January 19, 2006.

This case is a reminder that a professional regulatory body may find one of its members guilty of professional misconduct even if it involves “off duty” conduct.

In this case, the impugned conduct involved discriminatory comments made by a teacher in a public newspaper. The College and the Courts reviewing the College’s reasons found that the conduct at issue did not necessarily have to result in harm to any particular student or other individual in order to constitute professional misconduct under the governing statute.

Rather, it was found that discriminatory comments about homosexuality made by a practising teacher outside of his classroom cased general harm to the public educational system and affected the integrity of that system.

Finally, while a penalty imposed by a professional regulatory body for this type of comment may infringe a teacher’s Charter rights to freedom of speech, this infringement may well be justified.

While this particular case arose in British Columbia, teachers should be aware that similar provisions exist here in Ontario. Under Ontario Regulation 437/97 of the Ontario College of Teachers Act, section 1(19) defines “professional misconduct” as specifically including “conduct unbecoming a member”.