At the heart of this case is the balance that must be struck between the rights of a public servant to free political and religious expression in the public forum on the one hand, and the rights of strudents to be educated in a tolerant environment, free from discrimination, on the other.
Eight years ago, the Supreme Court of Canada in Ross v. New Brunswick School District No. 15 resolved that balance in favour of the students, upholding an order sanctioning a teacher for public statements of a racist character. The novel aspect of this case is that, unlike Ross, there is no evidence of a poisoned school environment.
The BCCLA says that discriminatory writings, when made in a made in a public forum and linked to the speaker’s professional capacity as a teacher and student counsellor, can constitute a harm even absent evidence of a poisoned environment. Words can in some circumstances present a real barrier to access with respect to vulnerable minorities. While not necessarily justifying infringement in all cases, this harm can be weighed in assessing the reasonableness of the infringement of the speech. In such a case an infringement of freedoms of religion and expression may be justified on the basis of that harm.