Running head: THE LAW ASSIGNMENT

EDUC 525: Ethics and Law in Education

Hamnah Altaf, Guneet Bath (30002480), Erin R. Demers (30006770), Victoria E. Q. Kehler

University of Calgary

October 11, 2019

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Introduction

The Canadian Charter of Rights and Freedoms protects the basic rights that are

essential to keeping Canada a free and democratic society. On November 9, 2018, Philip

Kapoor, a first-year grade 6 teacher spoke at length about his anti-war beliefs and said that

“war [is] evil and no one should ever participate in no matter what the cost” (Donlevey, n.d.,

para 1). Mr. Kapoor encouraged his students to be socially active and use their freedom of

expression. In response to his lesson, Mr. Kapoor’s students engaged in a protest during the

Remembrance Day services held in city hall. This incident outraged the community, as it was

deemed disrespectful to the fallen soldiers. Mr. Kapoor refused to apologize to the parents

of the students in his class, and henceforth, was suspended from teaching. This essay will

argue for and against Mr. Kapoor’s right to freedom of expression under section 2 (b), taking

into account Section One of the Charter and the Oakes test, to examine his actions and

evaluate whether or not he was acting within his rights.

Section One of the Charter and the Oakes test

To fully examine Mr. Kapoor’s actions, it is essential to understand the laws and tests

that we are assessing this case under. The law that we are analysing this case through is s.

2(b) of the Charter of Rights and Freedoms which specifically states that everyone has the

“freedom of thought, belief, opinion and expression” (Canadian Charter, 1982 s.2(b)). In

other words, citizens are entitled to their ideas and opinions and have the right to express

themselves.

Section One of the Charter balances the rights and freedoms of an individual in the

interest of society and is only engaged after finding that a right or freedom has been

infringed (Wong, September 19, 2019). Additionally, the Oakes test can be applied “each
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time a Charter violation is found in order to determine if a law that infringes a Charter right

can be justified under s.1 of the Charter” (Ontario Justice Education Network [OJEC], 2013,

p. 2-3). Using the Oakes test to assess Mr. Kapoor’s actions, consideration must be given to

a few different aspects, namely: is freedom of expression under s. 2(b) infringed?; does the

activity in question have expression content, thereby bringing it within s. 2(b) protection?;

does the method or location of this expression remove that protection?; and finally, if the

expression is protected by s. 2(b), does the government action in question infringe on that

protection, either on purpose or in effect? (Wong, September 19, 2019).

Argument for his actions

In arguing for Mr. Kapoor’s actions, we can examine how he was practicing his

freedom of expression in his classroom, as allowed under s. 2 (b) of the Charter.

Subsequently, he inspired his students to understand and value their freedom of expression.

However, at that moment, he was attempting to show his students that one can create

change and provoke action by using their voice. In this instance, Mr. Kapoor’s actions may

be seen as commendable as he shapes a new generation into expressing their beliefs. As

seen in R. v. Keegstra (1990) case, “when an activity conveys... meaning, through a non-

violent form of expression, it has expressive content and thus falls within the scope of the

word "expression"...the type of meaning conveyed is irrelevant. Section 2 (b) protects all

content of expression” (p. 2). Mr. Kapoor’s actions convey meaning through a non-violent

form of expression, and hence, it could be said that he was well within his rights as

designated by the Charter.

Another explanation to Mr. Kapoor’s actions is that he was simply attempting

something new within his classroom by voicing his own opinions on war. Teachers are held
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to higher standard of conduct than the rest of society (Wong, September 19, 2019), but as a

new teacher, the biased preaching of his beliefs could be explained away as a misjudgement

or an error. An educator’s job is to remain unbiased and allow their students to learn from a

critical and insightful lens, looking at many different perspectives (Science Education

Resource Center [SERC], n.d, para 1), and it is clear that Mr. Kapoor failed in that

jurisdiction. Although, it can be argued that Mr. Kapoor was well within his right to freedom

of expression, as he was expressing his opinion, albeit a strong one, in his classroom. As

stated in R. v. Keegstra (1990) case, “section 2 (b) does not protect only justified or

meritorious expression” (p. 5), and while Mr. Kapoor’s expression may not be justified or

meritorious, it is still an expression.

Argument against his actions

In considering the argument against Mr. Kapoor’s actions, and as we have seen in R.

v. Keegstra (1990) case, while section 2(b) of the Charter guarantees the right of expression,

it does not entirely protect educators from spreading biases within classrooms. Mr. Kapoor’s

actions drew the conclusions he wished for his students to believe, rather than allowing

them to critically analyse the information that has been provided. Similarly, in R. v. Keegstra

(1990), the teacher forced his beliefs on the students via classroom propaganda and exams,

coercing students to believe his bias. While Mr. Kapoor’s case may not be as adverse, the

nature and timing of the protest during the Remembrance Day service deem this “peaceful

protest” societally inappropriate as it presented an unsafe environment for both the

students and those present. It is important to take note that while Mr. Kapoor and his

students were practicing their freedom of speech, their expression was infringing on

Remembrance Day’s minute of silence and conflicting with the participants’ freedom of

speech. Consequently, this becomes an issue of whose rights are more important.
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In considering the context behind what Mr. Kapoor was conveying to his students, it

was largely opinionated and had little factual evidence. In the end, he refused to apologize

for his part in leading the students to protest. While an apology may not have reversed the

effects, these events had on the students and the community, it may have moved towards

healing what had been done. However, his lack of apology is condemning as it is clear that

he had an intention that he stands by.

Utilizing the Oakes test

To determine if an individual's freedom of expression has been infringed under s.

2(b) of the Charter, we can use the Oakes test, beginning with the three questions that

determine whether an infringement is found. The first question asks whether the activity

has an expressive content, thereby bringing it within s. 2(b) protection. Mr. Kapoor

encouraged being active and standing up for one’s beliefs. His conduct did not include direct

threats of violence and according to section 2(b), it is part of protected expressions under

“expressing oneself in the language of choice in a non-threatening manner” (Wong,

September 19, 2019). It could be argued that he was well within his rights as designated by

the Charter. Furthermore, students that participated in the protests, while disruptive, were

not instigating violence.

The next question asked before the Oakes test analyses whether the medium or

location of Mr. Kapoor’s talk and students’ protests removes the protection of s. 2 (b). The

teacher’s medium in which he delivered his message in class was not violent in any way and

therefore, was protected under s. 2(b). However, a teacher’s conduct should be analysed on

his or her position in society, and not whether the conduct occurs within or outside the

classroom (Wong, September 19, 2019). The students’ protests were conducted at an
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inappropriate time, since they were not violent nor perceived as a threat to public safety,

they are still protected under s. 2(b) as freedom of expression.

The final stage of questions before the Oakes test determines whether the

government action in question infringes on the protection of expression or not. After the

incident, the school board asked Mr. Kapoor to apologize to the parents of the students for

his actions. However, the teacher refused to do so and hence was suspended from teaching.

The purpose of the school board’s action was to limit the ability of the teacher to participate

in expressing his views, thus infringing by purpose. The school board was correct to take

action to appease the community and maintain a standard for their educators, however, Mr.

Kapoor’s freedom of expression was still protected under s. 2(b) of the Charter because he

was still able to voice his opinion, just not in a classroom context until he apologized to the

parents.

Conclusion

As educators, it is our responsibility to provide students with an unbiased

educational environment, allowing students to think critically and guide them along the

path to making their inferences and conclusions (SERC, n.d, para 1). Mr. Kapoor went

outside his educational jurisdiction as a teacher by imposing his viewpoint on the students

and provoking their actions in the protest. This in itself can be seen as inappropriate,

because it led to the poor method and timing of the students’ freedom of expression

through protest. Mr. Kapoor made a lapse in judgment, however, his refusal to apologize for

his actions connotes that this was an intentional move that he still stands by.

In examining Mr. Kapoor’s actions under s. 2(b) of the Charter and the Oakes test,

we have found that the outcome resembles the R. v Keegstra (1990) case, in that while the

actions taken by Mr. Kapoor and his students may be seen as inappropriate and
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disrespectful, “if the guarantee of free expression is to be meaningful, it must protect

expression which challenges even the very basic conceptions about our society. A true

commitment to freedom of expression demands nothing less” (p. 5). While we may not

agree with the actions of Mr. Kapoor and his students during the Remembrance Day

celebration, we conclude that he was within his rights under s. 2(b) of the Charter. His

suspension was necessary to repair the harm done to his community. However, the

suspension does nothing in inhibiting his freedom of expression, and if he apologizes for his

actions, he can be reinstated in his position.

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References

Charter of Rights and Freedoms, s 1, Part of the Constitution Act, 1982, being Schedule B to

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

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

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

Donlevy, J.K. (n.d) Freedom of expression [Class handout]. Retrieved from University of

Calgary site: https://d2l.ucalgary.ca

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-and-

Oakes_0.pdf

R.v. Keegstra, [1990] 3 S.C.R. 697.

Science Education Resource Center (SERC) (n.d.). Pedagogy in action: Why teach

with an interdisciplinary approach? Retrieved from

https://serc.carleton.edu/sp/library/interdisciplinary/why.html

Wong, H. (2019, September 19) Rights and responsibilities of teachers [PowerPoint slides].

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