Running head: EDUC 525 LT1 1

EDUC 525 LT1

Clark, McKee, Solari, Sveinson

10085677, 10138372, 10175555, 30004005

University of Calgary

Professor Holly Wong

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The Case

A first year grade six teacher, Mr. Philip Kapoor, began his school year at Stardust

Elementary School in Fort McMurray, Alberta. Mr. Kapoor was passionate about shaping the

minds of youth around issues related to social, political, economic and legal institutions in

relation to the well-being of society. Mr. Kapoor attempted to create a positive and safe learning

environment, however by expressing his personal opinions about war in the classroom he

encouraged students to protest and disturb the one minute of silence at the Remembrance Day

ceremony. The school board ordered Mr. Kapoor to apologize to the parents and students in his

class and admit to the wrongdoings of his actions. Upon his refusal, Mr. Kapoor has been

suspended from teaching until he complies.

According to section 2(b) of the Charter, Mr. Kapoor was merely exercising his right to

freedom of expression. However, because Mr. Kapoor holds a position of authority in society, as

a teacher, and must comply with the Education Act Part 7 s. 196(b), this infringement upon Mr.

Kapoor’s s. 2(b) freedom of expression is justified (section 196, School Act).

Arguments for

According to the Canadian Charter of Rights and Freedoms s. 2(b), every individual has

the fundamental freedom of “thought, belief, opinion and expression, including freedom of the

press and other media of communication” (section 2(b), Canadian Charter of rights and

freedoms). Moreover, this right should not only protect sentiments that are considered to reflect

societal values, but also those that challenge even the basic conceptions of our society and their

validity (R. v. Keegstra). In looking into s. 2(b) of the Charter, Mr. Kapoor was exercising his

right to freedom of expression in a justified manner. Also, under the Criminal Code of Canada s.
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319(3)(c), no person shall be convicted “if the statements were relevant to any subject of public

interest, the discussion of which was for the public benefit, and if on reasonable grounds he

believed them to be true” (section 319(3c), Criminal Code of Canada). Mr. Kapoor was

providing his students with a more diverse representation of the history and values of Canadian

society. Canada is a diverse and multicultural nation, and by offering different perspectives of

war and Canadian history Mr. Kapoor wanted to provide his students with a balanced

educational experience. According to the Charter s. 2(b), an infringement upon an individual's

right to freedom of expression is only justified when said expression is intimately connected to

violence (Wong, 2019). Therefore, the content of Mr. Kapoor’s views is not important because

he expressed himself using non-violent intentions (R. v. Keegstra).

Arguments against

According to Part 7 s. 196(b) of the Education Act, educators must teach the courses and

follow the program of studies that are prescribed, approved or authorized pursuant to this act

(section 196, School Act). Additionally, teachers “must be perceived to uphold the values,

beliefs, and knowledge sought to be transmitted by the school system” (Wong, 2019, p. 6). The

community outrage following the protests on Remembrance Day demonstrated that Mr.

Kapoor’s teachings did not align with the community and school values. The implications of this

are seen in previous cases, where it is stated that the moral standards of the community should be

reflected in the work teachers do inside their classrooms (R. v. Shewan). Furthermore, it is on the

“basis of the position of trust and influence that we hold the teacher to high standards both on

and off duty, and it is an erosion of these standards that may lead to a loss in the community of

confidence in the public school system” (R. v. Ross, para 45). By being in this described position

of authority over his students, Mr. Kapoor influenced his students to protest by urging them to be
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“socially active and use their voices to say that war is an evil that no one should ever participate

in no matter what the cost.” As outlined in the course materials, “with all legal powers come

legal responsibilities; it seems rightly the work of a professional to understand the nature of the

responsibilities they hold, and the consequences they too may suffer if neglected, inaccurately

employed, or over-extended” (Why law and policy matter, n.d., p. 1). It is our opinion that Mr.

Kapoor neglected his professional responsibilities. Therefore, individuals are not prohibited from

holding views that are controversial, but when they are a teacher their right to express these

views publicly becomes hindered when it is in a manner that impacts the school community (R.

v. Ross). Additionally, upon joining the Alberta Teachers’ Association (ATA), educators are

expected to uphold the values and standards of the Association. This requires teachers to “act in

a manner which maintains the honour and dignity of the profession” and “accept that service to

the Association is a professional responsibility” (section 18, ATA; section 22, ATA). Mr.

Kapoor’s actions went against these standards laid out in the ATA’s professional conduct.

Section 1 and the Oakes test

Upon reviewing the case, we determined that Mr. Kapoor’s right to s. 2(b) freedom of

expression was infringed (Ontario Justice Education Network (OJEN), 2013). Mr. Kapoor

presented his opinion, but believed he was presenting information for the students to think

critically about instead of passively accepting the information. Although, considering the context

the activity was found to have expressive content because it was meant to convey meaning to

students with the intention of changing their perspective on war (OJEN, 2013). The method or

location of this activity removed Mr. Kapoor’s protection, as he is a teacher in a public school

(OJEN, 2013). Although Mr. Kapoor may have believed that he was presenting this information

in a private setting to his students, ignorance is not a valid defense. The government action does
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infringe upon this protection in purpose or effect because Mr. Kapoor, as a teacher, is restricted

from sharing his biased views on war with his students (OJEN, 2013). Following these analyses,

a Charter infringement on Mr. Kapoor’s right was found.

Since we found a Charter infringement, we conducted the second part of the Oakes test to

determine whether this infringement is prescribed by law (OJEN, 2013). This infringement is

prescribed by law because Mr. Kapoor’s actions contradicted Part 7, s. 196(b) of the Education

Act (section 196, School Act). The purpose of the law is pressing and substantial, because Mr.

Kapoor holds an authoritative position over his students (OJEN, 2013). The law is rationally

connected to its purpose, because by prohibiting Mr. Kapoor’s s. 2(b) right to freedom of

expression the school board is abiding by the Education Act’s guidelines for protecting students’

impressionable minds (OJEN, 2013). The law minimally impairs Mr. Kapoor’s right, because it

only prevents Mr. Kapoor from presenting his one-sided views to his students (OJEN, 2013).

The positive effects of the law outweigh the negative effects of the infringement because Mr.

Kapoor’s responsibility to adhere to the Education Act, as a teacher, outweighs his right to

express his own beliefs and opinions about war (OJEN, 2013). After completing the Oakes test,

it was found that the infringement on Mr. Kapoor’s s. 2(b) right to freedom of expression is

justified (OJEN, 2013).

Conclusion

In our opinion, the infringement upon Mr. Kapoor’s s. 2(b) right to freedom of expression

is justifiable within the context of the Education Act, specifically Part 7, s. 196(b) (section 196,

School Act). While we found it important to note that Mr. Kapoor was not wrong in showing

alternate lenses of Canadian military history, he was not entitled to give his students such a
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biased and extreme perspective regarding war. Furthermore, Mr. Kapoor’s radical views about

war had no place within the context of a public school classroom. Moreover, because Mr.

Kapoor failed to recognize the significance of his role as a teacher with authority over his

students, he persuaded them to act upon his radical teachings. Mr. Kapoor abused his position of

power, therefore resulting in the justifiable limit placed by the government upon his s. 2(b) right

to freedom of expression.
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References

Alberta Teachers’ Association. (2018). Code of Professional Conduct. Retrieved from

https://www.teachers.ab.ca/TheTeachingProfession/ProfessionalConduct/Pages/CodeofPr

ofessionalConduct.aspx.

Charter of Rights and Freedoms, s 2, Part B of the Constitution Act, 1982, being Schedule B to

the Canada Act 1982 (UK). 1982, c 11.

Criminal Code of Canada, R.S.C., C-46 (1985). Retrieved from https://laws-

lois.justice.gc.ca/eng/acts/c-46/page-1.html

Ontario Justice Education Network. (2013). “Section 1 of the Charter and the Oakes Test.”

Retrieved from http://ojen.ca/wp-content/uploads/In-Brief_Section-1-Oakes_0.pdf

Ross v. New Brunswick School District No. 15, 1 SCR 825, Supreme Court of Canada. (1996).

Retrieved from http://canlii.ca/t/1frbr.

R. v. Keegstra (1990). 3 S.C.R. 697. Retrieved from https://scc-csc.lexum.com/scc-csc/scc-

csc/en/item/695/index.do.

School Act, Revised Statutes of Alberta (2000, c. S-3). Retrieved from http://canlii.ca/t/53j4d.

Shewan v. Board of School Trustees of School District #34 (Abbotsford), 1987 CanLII 159,

British Columbia Court of Appeal. (1987). Retrieved from http://canlii.ca/t/1p6pq.

Why law and policy matter. (n.d.). Retrieved from University of Calgary D2L site

https://d2l.ucalgary.ca/d2l/le/content/277365/viewContent/3627225/View.
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Wong, H. (2019, September 19). Rights and responsibilities of teachers. [PowerPoint slides].

Retrieved from University of Calgary D2L site: https://d2l.ucalgary.ca.