Understanding the Kempling ruling.
Kempling appealed the BCCT ruling on the grounds that it violated his rights to freedom of thought, belief, opinion and expression in section 2 of the Canadian Charter of Rights and Freedoms. On February, 3, 2004, Mr. Justice Ronald Holmes of the British Columbia Supreme Court rejected the appeal.
Holmes acknowledged in his ruling that Kempling "has been a BCCT member since 1980, with a long and unblemished teaching career, and a notable record of community service." Moreover, despite the controversy with the BCCT, the Ministry of Health appointed Kempling to serve as the voluntary head of the Quesnel Community Health Council.
What, then, could this model citizen and teacher have written in his local newspaper to warrant suspension of his teaching licence? Holmes explains: "The appellant consistently associated homosexuals with immorality, abnormality, perversion, and promiscuity. Examples of such statements include: Thus my main concern with giving same-sex couples legal rights in child-custody issues is due to the obvious instability and short term nature of gay relationships ... My second concern is how can children develop a concept of normal sexuality, when their prime care-givers have rejected the other gender entirely?"
On the basis of this and other similar statements, the BCCT convicted Kempling of professional misconduct for making "discriminatory and derogatory statements against homosexuals." In his defence, Kempling submitted that only discriminatory actions, not speech, can count as unprofessional conduct within the meaning of the law.
Holmes disagreed. He pointed out that, under the rubric of "discriminatory publication," section 7(1) of the British Columbia Human Rights Code bans the issuing of any statement that is likely to expose a group or class of persons to contempt because of their sexual orientation.
The BCCT cited no evidence of a "poisoned school environment" or specific complaints against Kempling. Nonetheless, Holmes concluded: "In my view, the appellant's published writings were harmful to the public school system ... because of their discriminatory content."
Note the general implications of this finding: Holmes implies that it is a human rights offence for anyone, not just teachers, to lament sexual promiscuity among homosexuals in a letter to the editor of a newspaper.
It mattered not to Holmes that homosexual promiscuity is a notorious fact and that Kempling harbours no ill will for homosexuals. In the 1990 Taylor case, former Chief Justice Brian Dickson of the Supreme Court of Canada held that neither truth nor benign intent is a defence against a charge of discrimination for uttering a statement that objectively conveys contempt for members of a favoured group singled out for protection in a human rights code.
In this same case, Dickson also declared that the ban on discriminatory statements in a human rights code is compatible with the Charter, notwithstanding the guarantee of freedom of thought, belief, opinion and expression in section two. Following this Taylor precedent, Holmes arrived at the conclusion that the Charter also does not protect Kempling's "right to express ... strictly personally-held, discriminatory views with the authority of or in the capacity of a public school teacher/counsellor."
Kempling is a Christian. What about his right under section 15 of the Charter to the equal protection of the law without discrimination on the basis of religion? Holmes dismissed this argument on the specious ground that all teachers, not just those who are Christians, are required by law not to discriminate against homosexuals.
Kempling plans a further appeal. But that's a forlorn hope. Former prime ministers Brian Mulroney and Jean Chretien have stacked the appeal courts with so many dogmatic gay-rights ideologues that an appellant in a case like Kempling's is exceedingly unlikely to get a fair hearing.
All other teachers in the public schools of Canada should take note: like Kempling, they, too, could lose their job for expressing with the best of intentions the truth about homosexuality. Even teachers in the Catholic schools must beware, lest they, too, come under similar judicial attack.
Editor's note: I don't think that Mr. Leishman's attempt here is to frighten teachers into silence. He is raising our awareness about the issue. No matter what the future brings, the truth must be taught at all times.
Rory Leishman is a national affairs columnist for The London Free Press in London, ON. Home page is www.roryleishman.com
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|Date:||Apr 1, 2004|
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