Maurice Green, LLB
Green & Chercover
August 19, 2009
Coming to the legal test and the way it's described for Section 1, the first hurdle to cross is that one has to show that there is a pressing and substantial goal. It's not exactly the words of the Charter and the courts, but it's a pressing and substantial purpose that the school board, in this case, has been trying to achieve its ends, which is a school system free from prejudice and hate. So when you say that a school board has policy which supports multiculturalism and tolerance and pluralism and all the things that we believe in Canada, it is next to impossible for anybody defending a teacher who is accused of hate to challenge that as a proper goal. So with Mr. Fromm's case, we said, obviously, there is a pressing and substantial need for a school system and an educational system to have the goal of supporting multiculturalism.
The next test is that there has to be a proportionality between the objective and the means used to curtail the freedom. To judge whether that has been done, you have to look at three aspects. The measure has to be rationally connected to the objective. Secondly, the means used must minimally impair the right. And three, there has to be a proportionality between the good and bad aspects of the means used and the effects of the measure and its objective. Now that sounds a lot of legalese and isn't the exact terms of the courts have used, but what it comes down practically is this: you look at what Mr. Fromm was accused of.
We know what he's accused of, engaging in hate speech, trying to defend people who engage in hate speech, and associating with characters you wouldn't want to have over for tea. So the school board terminates him. Was that a proportional response to his behaviour? Well, if he had been doing it for 23 years without any warning, there is a possibility, and I only say, a possibility that a court or an arbitration board would say without any warning, it was an overreaction. You should have warned him to stop and give him a chance to change his behaviour. And, of course, in Mr. Fromm's case, they had done that. They had done it already. So when it came to him continuing his behaviour and not listening to the employer's instructions and advice, of course, it was easy for the arbitration board to say the means used, i.e. terminating his employment, was proportional to the goal because we've tried everything else. In terms of having the measure minimally impair his rights, it was a little more complex. The fact is there was no other option for the school board but to terminate him.
A good example of where minimal impairment did not occur is the Ross case because one of the things that the Human Rights Tribunal ordered in Ross was that yes he be terminated as a teacher and there was a chance that he could be rehired as a non-teacher under certain conditions, but they also put a gag order on him. In other words they said to him you have to cease and desist from spreading your hatred in the community and the Supreme Court of Canada held that that went too far, that was not the minimum impairment, that overstepped the bounds. And that's probably a good example of a black and white line that is crossed that the court will allow freedom of speech even though that speech is hateful and is harmful to society, but we're not going to prevent people engaging in that speech. You're not going to be employed as a teacher anymore and you're going to have your licence taken away as a teacher, but if you really feel so strongly about those horrible views you can go wherever throughout Canada and spout them off. Whether people listen to you is another thing. That's minimal impairment. And lastly, there has to be a proportionality between the good and bad aspects of the means used and the effects of the measure to its objective. That basically engages a balancing of interests. Is it going to impose on society too many bad effects if you terminate the teacher? Well, when the teacher engages in hate language it's a non-argument. There's no balance there. It's obviously going to be accepted.
I think the type of case that we may end up seeing down the road, because, to this point in time, we've only seen extreme cases of extreme language and opinions, which is understandable, but what would happen, for instance, if a teacher, and I'm not suggesting teachers do this without checking with their principal and school board, but what happened if a teacher held a respectful discussion in the classroom over whether students and/or students' mothers should be permitted to wear the berka. It engages freedom of religion, women's rights, and equality rights. It's a debate, which is going around the world, sometimes respectfully, unfortunately many times not. But if the teacher was to allow that type of debate to go and had a view about it and support it from the point of view of women's equality that the berka should be outlawed, how would you then go through the Charter of Rights and Freedoms and say I have the right to freedom of speech and opinion and I expressed that fairly and respectfully. What happens when you go through the Section 1 analysis if the school board turns around to the teacher and say cease and desist. We can't have you discussing that type of topic in the classroom. Brings up a whole different set of arguments and a much more complex set of arguments, because if the debate is done respectfully then, hopefully, there is no hatred involved there. It's a genuine debate about a very difficult issue because many views have to be respected and the Charter of Rights when it deals with freedom of religion and freedom of speech, especially, creates a very difficult balancing act.
