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oss  v.  New Brunswick School District No. 15, [1996]  1
S.C.R. 825

David                                               Attis
Appellant

v.

The   Board   of  School  Trustees,  District    No.   15
Respondent

and

The Human Rights Commission of New Brunswick,
Malcolm Ross, the Department of Education of
New Brunswick, the New Brunswick Teachers'
Federation,    and    the   Canadian   Jewish    Congress
Respondents

and

Brian Bruce, Brian Bruce Consultants Ltd.,
the Human Rights Board of Inquiry, and the
Minister of Labour of New Brunswick          Respondents

and between

The Human Rights Commission of New Brunswick Appellant

v.

The   Board   of  School  Trustees,  District    No.   15
Respondent

and

David                                               Attis
Respondent

and

Malcolm Ross, the Department of Education of
New Brunswick, the New Brunswick Teachers'
Federation,    and    the   Canadian   Jewish    Congress
Respondents

and

Brian Bruce, Brian Bruce Consultants Ltd.,
the Human Rights Board of Inquiry, and the
Minister of Labour of New Brunswick          Respondents

and between

The Canadian Jewish Congress                 Appellant

v.

The   Board   of  School  Trustees,  District    No.   15
Respondent

and

Malcolm                                              Ross
Respondent

and

David                                               Attis
Respondent

and

The Human Rights Commission of New Brunswick,
the Department of Education of New Brunswick,
and    the    New    Brunswick    Teachers'    Federation
Respondents

and

Brian Bruce, Brian Bruce Consultants Ltd.,
the Human Rights Board of Inquiry, and
the Minister of Labour of New Brunswick      Respondents

and

The Attorney General of British Columbia,
the League for Human Rights of B'Nai Brith Canada,
the Canadian Civil Liberties Association, and
the Canadian Association of Statutory Human
Rights                                           Agencies
Interveners

Indexed as:  Ross v. New Brunswick School District No. 15

File No.:  24002.

1995:  October 31; 1996:  April 3.

Present:   Lamer  C.J.  and  La  Forest,  L'Heureux-Dubé,
Sopinka,   Gonthier,  Cory,  McLachlin,   Iacobucci   and
Major JJ.

on appeal from the court of appeal for new brunswick

        Civil rights -- Discrimination -- Services to the
public   --   Teacher   publicly  making   discriminatory
statements  in his off-duty time -- Whether school  board
which  employs  teacher discriminating  with  respect  to
services  it  offers  to  public  --  Human  Rights  Act,
R.S.N.B. 1973, c. H-11, s. 5(1).

         Judicial review -- Standard of review  --  Human
rights tribunal -- Issues raised involving constitutional
and  administrative law components -- Different standards
of    review    applicable   --   Relationship    between
administrative  law standard of review and constitutional
standard  of review under Canadian Charter of Rights  and
Freedoms.

         Administrative law -- Human rights  tribunal  --
Jurisdiction  --  Teacher publicly making  discriminatory
statements in his off-duty time -- Human rights board  of
inquiry  making finding of discrimination against  school
board  which employs teacher -- School board  ordered  to
remove  teacher  from  his  teaching  position,  and   to
terminate   his  employment  immediately  if   he   wrote
anti-Semitic  materials or sold his previous publications
--  Whether Board's finding of discrimination  and  order
beyond  its  jurisdiction -- Human Rights  Act,  R.S.N.B.
1973, c. H-11, ss. 20(1), (6.2), 21(1).

         Constitutional  law  --  Charter  of  Rights  --
Freedom   of   expression  --  Teacher  publicly   making
discriminatory statements in his off-duty time  --  Human
rights  board of inquiry ordering school board to  remove
teacher from his teaching position, and to terminate  his
employment immediately if he wrote anti-Semitic materials
or  sold  his  previous  publications  --  Whether  order
infringes  on teacher's freedom of expression --  If  so,
whether  infringement justified --  Canadian  Charter  of
Rights and Freedoms, ss. 1, 2(b).

         Constitutional  law  --  Charter  of  Rights  --
Freedom   of   religion   --  Teacher   publicly   making
discriminatory statements in his off-duty time  --  Human
rights  board of inquiry ordering school board to  remove
teacher from his teaching position, and to terminate  his
employment immediately if he wrote anti-Semitic materials
or  sold  his  previous  publications  --  Whether  order
infringes  on  teacher's freedom of religion  --  If  so,
whether  infringement justified --  Canadian  Charter  of
Rights and Freedoms, ss. 1, 2(a).

         For  several years, R, a teacher, publicly  made
racist  and  discriminatory comments against Jews  during
his   off-duty   time.   R's  writings   and   statements
communicating his anti-Semitic views include  four  books
or  pamphlets, letters to a local newspaper, and a  local
television interview.  A Jewish parent filed a  complaint
with  the New Brunswick Human Rights Commission, alleging
that  the  School Board, which employed R as  a  teacher,
violated   s.   5(1)   of  the  Human   Rights   Act   by
discriminating  against  him  and  his  children  in  the
provision of accommodation, services or facilities on the
basis  of  religion and ancestry.  The Board  of  Inquiry
(the "Board") found that R's off-duty comments denigrated
the  faith  and belief of Jews.  The Board further  found
that   the  School  Board  was  in  breach  of  s.  5(1),
concluding that it discriminated by failing to discipline
R   meaningfully  in  that,  by  its  almost  indifferent
response   to  the  complaints  and  by  continuing   his
employment, it endorsed his out-of-school activities  and
writings.  The Board directed the School Board to  comply
with  the following, in clause 2: (a) place R on a  leave
of  absence  without  pay  for a  period  of  18  months;
(b) appoint him to a non-teaching position, if one became
available   during   that  period;  (c)   terminate   his
employment at the end of that period if, in the  interim,
he  had  not  been  offered and accepted  a  non-teaching
position;  and  (d)  terminate his  employment  with  the
School  Board  immediately  if  he  published  or   wrote
anti-Semitic  materials or sold his previous publications
any  time  during the leave of absence period or  at  any
time  during  his employment in a non-teaching  position.
The  Court  of Queen's Bench allowed R's application  for
judicial review in part, ordering that clause 2(d) of the
order  be quashed on the ground that it was in excess  of
jurisdiction.  The court also concluded that paragraph  2
of  the  order violated ss. 2(a) and 2(b) of the Canadian
Charter  of  Rights  and  Freedoms  but  that,  with  the
exception of clause 2(d), it could be saved by  s.  1  of
the  Charter.  The Court of Appeal dismissed  the  cross-
appeals  with  respect  to clause 2(d)  and  allowed  R's
appeal,  holding that clauses 2(a), (b) and  (c)  of  the
order  infringed R's freedom of expression and freedom of
religion and could not be justified under s. 1.

         Held:   The appeal should be allowed and clauses
2(a), (b) and (c) of the order restored.

(1)  Standards of Review

        This appeal raises two general issues in relation
to the standard of judicial review.  The first relates to
the administrative law issue of the standard of deference
to  be  applied  to the Board's finding of discrimination
and  its  remedial  order.  The  second  relates  to  the
standard  of constitutional review to be applied  to  the
Board's  order.   With respect to the administrative  law
issue,  the superior expertise of a human rights tribunal
is  confined to fact-finding and adjudication in a  human
rights  context, and the standard of review on the  basis
of  reasonableness is applicable to these  matters.   For
general  questions of law, a standard of  correctness  is
appropriate.    In   the  process   of   performing   its
adjudicative  function, a human rights  tribunal  applies
general  legal  reasoning  and statutory  interpretation,
matters which are ultimately within the province  of  the
judiciary.    Human  rights  tribunals,   however,   have
relative  fact-finding expertise and should  be  accorded
deference  by the courts in this function.  This  may  be
reinforced in this case by s. 21(1) of the Act which  may
import   some   privative  effect.    This   fact-finding
expertise  of  human  rights  tribunals  should  not   be
restrictively  interpreted,  and  it  must  be   assessed
against  the  backdrop  of  the particular  decision  the
tribunal  is called upon to make.  Here, the  Court  must
decide whether the Board's finding of discrimination  was
beyond  its  jurisdiction.   The  Board's  authority   to
determine  the  issue  of  discrimination  is  found   in
s.  20(1)  of the Act.  Since a finding of discrimination
is  impregnated with facts, and given the  complexity  of
the  evidentiary inferences made on the  basis  of  these
facts  before the Board, it is appropriate to exercise  a
relative   degree  of  deference  to   the   finding   of
discrimination,   in  light  of  the   Board's   superior
expertise  in  fact-finding -- a conclusion supported  by
the  existence  of  words importing a  limited  privative
effect  into  the constituent legislation.   As  for  the
order,  the  Board's  discretionary power  set  forth  in
s.  20(6.2)  of the Act is in such broad terms  that  the
order  cannot  be said to fall outside its  jurisdiction.
Here  too  the tribunal is entitled to the same deference
in fact finding.

          This   case   also  involves  a  constitutional
challenge   to  the  Board's  order.   An  administrative
tribunal acting pursuant to its delegated powers  exceeds
its  jurisdiction if it makes an order that infringes the
Charter.  The Charter standard and the administrative law
standard, however, must not be conflated into one.  Where
the  issues  involved are untouched by the  Charter,  the
appropriate  administrative  law  standard  is   properly
applied  as the standard of review; but when, as in  this
case,  the  values  invoked are  Charter  values,  it  is
necessary to subject the decision to a s. 1 analysis.  In
such  a case, there is no need for an administrative  law
review  of the values that have been dealt with  pursuant
to  Charter  examination under s. 1.  If the decision  is
found to be constitutional, it is difficult to see how it
could  be patently unreasonable.  A review of these  same
values  on  an  administrative law  standard  should  not
impose a more onerous standard upon government than under
the  Charter  review.  Conversely,  if  the  decision  is
unconstitutional, then its acceptability according to  an
administrative law standard is no longer relevant, as the
decision  is  invalid  and  in  excess  of  the   Board's
jurisdiction.

(2)  Discrimination

         The  Board  was  correct  in  finding  that  R's
continued    employment   as   a   teacher    constituted
discrimination under s. 5(1) of the Act, with respect  to
educational  services available to the  public.   On  the
basis of the factual evidence disclosing the substance of
R's  writings  and statements, and the notoriety  of  his
anti-Semitic  comments in the community and  beyond,  the
Board  properly  concluded  that  R's  off-duty  comments
undermined  his ability to fulfil his teaching  position.
The   evidence   establishes  a  "poisoned"   educational
environment  characterized by  a  lack  of  equality  and
tolerance.    Although  there  is  no   direct   evidence
establishing an impact upon the school district caused by
R's   off-duty   conduct,  a  reasonable   inference   is
sufficient  in  this case to support a finding  that  R's
continued employment impaired the educational environment
generally  in  creating the "poisoned" environment.   R's
off-duty    conduct   impacted   upon   the   educational
environment  in which he taught.  Public school  teachers
assume  a  position  of influence and  trust  over  their
students  and must be seen to be impartial and  tolerant.
By   their   conduct,  teachers,  as  "medium"   of   the
educational  message (the values, beliefs  and  knowledge
sought  to be transmitted by the school system), must  be
perceived as upholding that message.  A teacher's conduct
is  evaluated on the basis of his or her position, rather
than  whether  the conduct occurs within or  outside  the
classroom.   A  school board has a  duty  to  maintain  a
positive school environment for all persons served by  it
and  it  must  be  ever vigilant of anything  that  might
interfere  with  this duty.  It is not sufficient  for  a
school  board  to take a passive role.  Here,  the  Board
found that the School Board failed to maintain a positive
environment  and  concluded that  the  School  Board  had
discriminated in its failure to take a proactive approach
to  the  controversy surrounding R, thus  suggesting  the
acceptance of R's views and of a discriminatory  learning
environment.  There is no error in the Board's finding of
discrimination against the School Board.

(3)  Sections 2(a) and 2(b) of the Charter

         The  Board's  order  infringes  R's  freedom  of
expression.   R's writings and statements clearly  convey
meaning and are protected by s. 2(b) of the Charter.  The
truth or popularity of their contents is not relevant  to
this determination.  The order is intended to remedy  the
discrimination with respect to services available to  the
public, by preventing R from publicly espousing his views
while he is employed as a public school teacher.  On  its
face,  its  purpose  and  effect  are  to  restrict   R's
expression.  The order therefore violates s. 2(b) of  the
Charter.   The  order  also  infringes  R's  freedom   of
religion.   This  freedom ensures that  every  individual
must  be  free  to  hold  and to manifest  without  state
interference those beliefs and opinions dictated by one's
conscience.   Assuming the sincerity of the  beliefs  and
opinions, it is not open to the courts to question  their
validity.  Both ss. 2(a) and 2(b) must be given  a  broad
interpretation, generally leaving competing rights to  be
reconciled  under  the s. 1 analysis.  In  certain  cases
this  can be done in a relatively peremptory manner,  but
in   this   case,  where  R's  claim  is  to  a   serious
infringement of his rights in circumstances  requiring  a
detailed   contextual  analysis,  the   detailed   s.   1
analytical   approach  provides  a  more  practical   and
comprehensive mechanism to assess competing interests.

(4)  Section 1 of the Charter

         The Oakes test should be applied flexibly, so as
to achieve a proper balance between individual rights and
community  needs.  In undertaking this task, courts  must
take  into account both the nature of the infringed right
and  the  specific values the state relies on to  justify
the  infringement.   This involves a close  attention  to
context.    Here,   the  educational  context   must   be
considered   when   balancing   R's   freedom   to   make
discriminatory  statements  against  the  right  of   the
children  in the School Board to be educated in a  school
system that is free from bias, prejudice and intolerance;
relevant  to this particular context is the vulnerability
of young children to messages conveyed by their teachers.
The  employment context is also relevant  to  the  extent
that  the  state, as employer, has a duty to ensure  that
the  fulfilment  of public functions is undertaken  in  a
manner   that  does  not  undermine  public   trust   and
confidence.   Teachers  are also employees  of  a  school
board  and a teacher's freedoms must be balanced  against
the  school board's right to operate according to its own
mandate.  The anti-Semitism context is relevant  as  well
because  the  Board's  order  was  made  to  remedy   the
discrimination  within  the  public  school  system  that
targeted  Jews.   In  its order, the Board  balanced  R's
freedoms  against  the ability of  the  School  Board  to
provide a discrimination-free environment and against the
interests  of  Jewish  students;  it  may  therefore   be
entitled  to greater deference.  An attenuated  level  of
s.  1  justification is appropriate in this case in light
of  the  nature of the rights allegedly infringed by  the
order.  The expression sought to be protected is at  best
tenuously  connected  to the core values  of  freedom  of
expression.   R's religious belief, which denigrates  and
defames the religious beliefs of others, erodes the  very
basis  of  the guarantee in s. 2(a) of the Charter.   R's
religious  views serve to deny Jews respect  for  dignity
and equality.

          The   Board's  order  aims  at  remedying   the
discrimination  found  to have poisoned  the  educational
environment  in  the  School Board.   This  objective  is
clearly of sufficient importance to warrant overriding  a
constitutional  freedom.   There  is  also   a   rational
connection  between the order and its  objective.   While
the  evidence did not establish a direct link between the
poisoned  educational  environment and  R's  anti-Semitic
views,   it  is  sufficient  that  the  Board  found   it
"reasonable  to  anticipate"  that  there  was  a  causal
relationship  between R's conduct and the  harm.   It  is
possible   to   "reasonably   anticipate"   the    causal
relationship  in  this case because  of  the  significant
influence  teachers  exert  on  their  students  and  the
stature  associated  with the role  of  a  teacher.   R's
removal from his teaching position was thus necessary  to
ensure  that no influence of this kind is exerted by  him
upon  his  students  and to ensure that  the  educational
services  are discrimination-free.  Accordingly,  clauses
2(a),  (b)  and  (c) of the order, which  deal  with  R's
removal   from  his  teaching  position,  are  rationally
connected  to  the  order's objective.   They  were  also
carefully  tailored  to  accomplish  this  objective  and
minimally   impair  R's  constitutional  freedoms.    The
deleterious  effects of these clauses upon  R's  freedoms
are limited to the extent necessary to the attainment  of
their  purpose.   R is free to exercise  his  fundamental
freedoms  in  a manner unrestricted by this  order,  upon
leaving  his  teaching position, and he is not  prevented
from  holding  a position within the School  Board  if  a
non-teaching position becomes available.  The  objectives
of  preventing  and remedying the discrimination  in  the
provision of educational services to the public  outweigh
any  negative  effects on R produced  by  these  clauses.
Clauses  2(a),  (b)  and (c) of the order  are  justified
under  s.  1  and were properly made within  the  Board's
jurisdiction.

          Clause   2(d),  however,  fails   the   minimal
impairment branch of the s. 1 analysis.  It may  be  that
R's  continued presence in the School Board would produce
a  residual  effect  even after he  was  removed  from  a
teaching position, which may be what the clause sought to
address.  However,  the evidence  does  not  support  the
conclusion that the residual poisoned effect would remain
indefinitely. For that reason, clause 2(d), which imposes
a  permanent  ban,  does not meet the minimal  impairment
test.   Clause 2(d) should be severed from the  remainder
of  the order on the basis that it does not constitute  a
justifiable infringement of the Charter and is  therefore
in excess of the Board's jurisdiction.

Cases Cited

          Applied:    Fraser  v.  Public  Service   Staff
Relations Board, [1985] 2 S.C.R. 455; R. v. Oakes, [1986]
1 S.C.R. 103; referred to:  R. v. Zundel, [1992] 2 S.C.R.
731;   Pezim  v.  British  Columbia  (Superintendent   of
Brokers), [1994] 2 S.C.R. 557; Canada (Attorney  General)
v.  Mossop, [1993] 1 S.C.R. 554; Dayco (Canada)  Ltd.  v.
CAW-Canada,  [1993] 2 S.C.R. 230; Slaight  Communications
Inc.  v.  Davidson, [1989] 1 S.C.R. 1038; Re  Cromer  and
British  Columbia Teachers' Federation (1986), 29  D.L.R.
(4th)  641; Abbotsford School District 34 Board of School
Trustees v. Shewan (1987), 21 B.C.L.R. (2d) 93; Irwin Toy
Ltd.  v. Quebec (Attorney General), [1989] 1 S.C.R.  927;
Edmonton Journal v. Alberta (Attorney General), [1989]  2
S.C.R. 1326; R. v. Keegstra, [1990] 3 S.C.R. 697;  R.  v.
Jones,  [1986] 2 S.C.R. 284; R. v. Big M Drug Mart  Ltd.,
[1985] 1 S.C.R. 295; B. (R.) v. Children's Aid Society of
Metropolitan  Toronto,  [1995] 1  S.C.R.  315;  Young  v.
Young,  [1993] 4 S.C.R. 3; RJR-MacDonald Inc.  v.  Canada
(Attorney General), [1995] 3 S.C.R. 199; Rocket v.  Royal
College  of Dental Surgeons of Ontario, [1990]  2  S.C.R.
232; Brown v. Board of Education of Topeka, 347 U.S.  483
(1954); R. v. Edwards Books and Art Ltd., [1986] 2 S.C.R.
713; Canada (Human Rights Commission) v. Taylor, [1990] 3
S.C.R. 892; R. v. Butler, [1992] 1 S.C.R. 452.

Statutes and Regulations Cited

Canadian  Charter  of Rights and Freedoms, ss.  1,  2(a),
    (b), 15.

Human  Rights  Act,  R.S.N.B. 1973,  c.  H-11,  ss.  5(1)
    [rep.  & sub. 1985, c. 30, s. 7; am. 1992, c. 30,  s.
    5(a)], 20(1) [rep. & sub. 1985, c. 30, s. 13(a);  am.
    1987,  c. 6, s. 41], 20(4.1)(d) [ad. 1985, c. 30,  s.
    13(d)], 20(6.2) [idem, s. 13(g)], 21(1) [rep. &  sub.
    idem, s. 14].

Authors Cited

Reyes, Allison.  "Freedom of Expression and Public School
    Teachers" (1995), 4 Dal. J. Leg. Stud. 35.

        APPEAL from a judgment of the New Brunswick Court
of  Appeal (1993), 142 N.B.R. (2d) 1, 364 A.P.R.  1,  110
D.L.R.  (4th) 241, 19 C.H.R.R. D/173, allowing an  appeal
and   dismissing  cross-appeals  from   a   judgment   of
Creaghan J. (1991), 121 N.B.R. (2d) 361, 304 A.P.R.  361,
86  D.L.R. (4th) 749, 16 C.H.R.R. D/250, which allowed in
part an application for judicial review of a decision  of
a  human rights board of inquiry (1991), 121 N.B.R.  (2d)
1, 304 A.P.R. 1, 15 C.H.R.R. D/339.  Appeal allowed.

         Neil  Finkelstein, George Vegh, Joseph Weir  and
Janice Spencer, for the appellant Attis.

         Thomas  S.  Kuttner, Charles Ferris  and  Irving
Cotler, for the appellant the Human Rights Commission  of
New Brunswick.

         Joel  Richler and Keith Landy, for the appellant
the Canadian Jewish Congress.

        Douglas H. Christie, for the respondent Ross.

         Frank A. Falzon, for the intervener the Attorney
General of British Columbia.

         David  Matas, Marvin Kurz and Jacquie Chic,  for
the intervener the League for Human Rights of B'Nai Brith
Canada.

        Edward L. Greenspan, Q.C., for the intervener the
Canadian Civil Liberties Association.

         Written  submissions only by  Joseph  J.  Arvay,
Q.C.,  for  the  intervener the Canadian  Association  of
Statutory Human Rights Agencies.

        The judgment of the Court was delivered by

1     La Forest J. -- This appeal concerns the obligation
imposed upon a public school board pursuant to provincial
human  rights  legislation to provide discrimination-free
educational   services.    It   further   involves    the
fundamental freedom of an individual teacher to  publicly
express  his views and to exercise his religious  beliefs
during his off-duty time.  The main issues raised by this
appeal  are  whether  a  school board,  which  employs  a
teacher  who  publicly  makes invidiously  discriminatory
statements,  discriminates with respect  to  services  it
offers  to  the  public pursuant to s. 5(1)  of  the  New
Brunswick  Human Rights Act, R.S.N.B. 1973, c. H-11,  and
whether  an  order  to rectify the discrimination,  which
seeks  to  remove the teacher from his teaching position,
infringes  upon  the teacher's freedom of expression  and
freedom of religion guaranteed under ss. 2(a) and 2(b) of
the Canadian Charter of Rights and Freedoms.

I. Facts

2     The factual context within which these issues arise
is  as  follows.  On April 21, 1988, the appellant  Attis
filed a complaint with the Human Rights Commission of New
Brunswick,  alleging that the Board of  School  Trustees,
District No. 15, violated s. 5 of the Human Rights Act by
discriminating  against  him  and  his  children  in  the
provision of accommodation, services or facilities on the
basis  of  religion  and ancestry.  The  appellant  Attis
alleged  that  the  School  Board,  by  failing  to  take
appropriate action against the respondent Ross, a teacher
working  for  the School Board who publicly made  racist,
discriminatory and bigoted statements, condoned his anti-
Jewish   views  and  breached  s.  5  of   the   Act   by
discriminating against Jewish and other minority students
within the educational system served by the School Board.

3     On  September  1,  1988, a human  rights  board  of
inquiry was established to investigate the complaint.  In
the  complaint, the appellant Attis, a Moncton  resident,
described  himself  as  a  Jew.   He  alleged  that   the
discriminatory conduct by the School Board occurred  from
March  29, 1977 to April 21, 1988, and arose out  of  the
actions  of  the respondent Ross, a teacher  at  Magnetic
Hill  School.   The latter made racist and discriminatory
statements  in  published writings and in appearances  on
public  television.   In  his published  writings,  which
consist of four books or pamphlets published from 1978 to
1989, and three letters to New Brunswick newspapers, Ross
(whom   I  shall  hereafter  refer  to  simply   as   the
respondent) argued that Christian civilization was  being
undermined  and  destroyed  by  an  international  Jewish
conspiracy.

4     At  the  time of the hearing before  the  Board  of
Inquiry,  the  respondent did not have a homeroom  class,
but  was  a  modified  resource  teacher.   He  had  been
employed  at the school since September 1976, and  before
that  as  a  teacher at the Birchmount School.   Concerns
about   the  respondent's  writings  had  been  expressed
publicly  since  1978,  when the Chairman  of  the  Human
Rights  Commission had sent a letter to the School  Board
requesting  that his classroom performance be supervised.
By  1987,  the School Board's response to the controversy
had become a public issue and the Department of Education
of New Brunswick became involved.

5     In  1988,  the School Board instituted disciplinary
action against the respondent.  On March 16, 1988, he was
reprimanded  and warned that continued public  discussion
of  his  views could lead to further disciplinary action,
including  dismissal.   He was  also  informed  that  the
warning  was  applicable to his out-of-school activities.
The reprimand remained in force until September 20, 1989.
On  November 21, 1989, the respondent made the television
appearance previously mentioned and was again reprimanded
by the School Board on November 30, 1989.

6     The Board of Inquiry found there was no evidence of
any  direct classroom activity by the respondent on which
to  base a complaint under s. 5 of the Human Rights  Act.
However,   it  also  found  that  his  off-duty  comments
denigrated  the faith and belief of Jews.   It  concluded
that  his  actions violated s. 5(1) of the Act  and  that
there   was   no   reasonable  excuse  to   justify   the
discriminatory effect of those actions.  It further found
that the School Board was liable for any breaches of s. 5
of the Act by its teachers and, as such, the School Board
was  also  in  breach  of s. 5 of  the  Act.   The  Board
concluded that the School Board discriminated by  failing
to discipline the respondent meaningfully in that, by its
almost  indifferent  response to the  complaints  and  by
continuing  his employment, it endorsed his out-of-school
activities and writings.  This, it held, resulted  in  an
atmosphere  where anti-Jewish sentiments  flourished  and
where   Jewish  students  were  subject  to  a  "poisoned
environment"  within  the  School  District  "which   has
greatly   interfered   with  the   educational   services
provided"  to  the  appellant  Attis  and  his  children:
(1991),  121  N.B.R. (2d) 1, 304 A.P.R.  1,  15  C.H.R.R.
D/339 (hereinafter cited to N.B.R.).

7     The  Board of Inquiry made an order (at pp. 90-90B)
dealing  with the matter, which gives rise to the  issues
dealt  with in this appeal.  Paragraph (1) of  the  order
requiring the Department of Education to take a number of
steps   aimed  at  encouraging  policies  for  preventing
discriminatory  treatment  was  held  by  the  judge   on
judicial  review  to be outside the jurisdiction  of  the
Commission,  an issue not taken up on appeal.   Paragraph
(2) of the order, however, is central to this appeal, and
I therefore set it forth at length:

        (2) That the School Board:

            (a) immediately place Malcolm Ross on a leave
          of   absence  without  pay  for  a  period   of
          eighteen months;

            (b)  appoint  Malcolm Ross to a  non-teaching
          position  if,  within the period of  time  that
          Malcolm  Ross  is  on leave of absence  without
          pay,  a non-teaching position becomes available
          in  School  District 15 for which Malcolm  Ross
          is  qualified.  The position shall  be  offered
          to  him  on  terms  and at a salary  consistent
          with  the  position.  At such time  as  Malcolm
          Ross   accepts  employment  in  a  non-teaching
          position  his  leave  of  absence  without  pay
          shall end.

            (c) terminate Malcolm Ross' employment at the
          end  of  the  eighteen month leave  of  absence
          without  pay  if, in the interim,  he  has  not
          been   offered   and  accepted  a  non-teaching
          position.

            (d)  terminate Malcolm Ross' employment  with
          the  School Board immediately if, at  any  time
          during  the eighteen month leave of absence  or
          if  at any time during his employment in a non-
          teaching position, he:

                                                      (i)
            publishes  or  writes  for  the  purpose   of
            publication, anything that mentions a  Jewish
            or  Zionist conspiracy, or attacks  followers
            of the Jewish religion, or

                                                     (ii)
            publishes,  sells or distributes any  of  the
            following    publications,    directly     or
            indirectly:

                                              -   Web  of
            Deceit

                                             -  The  Real
            Holocaust (The Attack on Unborn Children  and
            Life Itself)

              - Spectre of Power

               - Christianity vs. Judeo-Christianity (The
          Battle for Truth)

8      The   respondent  applied  for   judicial   review
requesting  that  the order of the Board  of  Inquiry  be
removed  and quashed.  On December 31, 1991, Creaghan  J.
of  the Court of Queen's Bench allowed the application in
part,  ordering that clauses 1 and 2(d) of the  order  be
removed  and  quashed on the ground  that  they  were  in
excess of jurisdiction.  Creaghan J. also concluded  that
clause  2(d) of the order violated ss. 2(a) and  2(b)  of
the  Charter  and  could not be saved  by  s.  1  of  the
Charter:  (1991), 121 N.B.R. (2d) 361, 304 A.P.R. 361, 86
D.L.R.  (4th)  749,  16 C.H.R.R. D/250.   The  respondent
appealed  to the Court of Appeal for New Brunswick  which
allowed  the  appeal, Ryan J.A. dissenting:  (1993),  142
N.B.R.  (2d)  1, 364 A.P.R. 1, 110 D.L.R. (4th)  241,  19
C.H.R.R. D/173.  The appellants, Attis, the Human  Rights
Commission and the Canadian Jewish Congress sought  leave
to  appeal to this Court, seeking to have clause 2 of the
Board's order upheld; no appeal was taken in relation  to
clause 1 of the order.

II.     Decisions   BelowI.                     Decisions
        Below

A.  Court of Queen's Bench (1991), 121 N.B.R. (2d) 361

9     Creaghan J. found that the Board of Inquiry had the
right,  under s. 20(4.1)(d) of the Human Rights  Act,  to
determine that the Department of Education should be  one
of  the  parties to the inquiry.  He also found  that  s.
20(6.2)  of  the Act provides that "where  the  Board  of
Inquiry  finds,  on  a balance of probabilities,  that  a
violation of the Act has occurred, it may order any party
found  to  have  violated the Act to  do  certain  things
designed  to  rectify the violation"  (p.  368).   Basing
himself  on that provision, he concluded with respect  to
clause 1 of the order that (at p. 368):

           In  this instance, there was no claim that the
        Department  of Education violated the Act;  there
        was no investigation as to whether the Department
        of  Education violated the Act; and there was  no
        finding that the Department of Education violated
        the Act.

           There  was  no jurisdiction in  the  Board  of
        Inquiry to make an order requiring compliance  by
        the Department of Education simply because it was
        designated as a party to the inquiry.

10    He  thus  quashed clause 1 of the  order  as  being
beyond the jurisdiction of the Board.  He found there was
no  claim  other than that the School Board had  violated
the  Act  by  continuing to employ the  respondent  as  a
teacher   in  the  classroom.   He  specified  that   the
investigation centred on whether there was a violation of
the   Act   resulting  from  continuing  to  employ   the
respondent, and concluded (at p. 370):

           There  was  no jurisdiction in  the  Board  of
        Inquiry  to  make  an  order [clause  2(d)]  that
        directed  the  School Board to place restrictions
        on Malcolm Ross' activities outside the classroom
        in  the  event he was no longer employed  by  the
        School Board as a teacher in the classroom.

11    Creaghan  J. stated that the principal  ground  for
alleging  that the decision of the Board of  Inquiry  and
the  resulting order were patently unreasonable was  that
the  Board  had  no evidence on which it could  make  the
findings  necessary to support its order.  He noted  that
the  Board  of Inquiry found that there was  evidence  to
support its conclusion.  He reviewed the findings of  the
Board  and stated that the function of a court on  review
is  not  to  measure the findings against a  standard  of
correctness.   There  was some evidence  to  support  the
conclusions of the Board, and he found that clauses 2(a),
(b), and (c) of the order were not patently unreasonable.

12    Creaghan J. then undertook a Charter analysis.   He
concluded that the respondent's rights under ss. 2(a) and
2(b) of the Charter had been infringed and then, applying
the  Oakes test, concluded that clauses 2(a), (b) and (c)
of  the order were saved as a reasonable limit prescribed
by  law that can be demonstrably justified in a free  and
democratic  society under s. 1 of the  Charter.   Despite
his  finding with respect to lack of jurisdiction in  the
Board  to  make clause 2(d) of the order,  he  stated  he
would  not have applied s. 1 of the Charter to  save  it.
He  was  not  satisfied that the clause  would  meet  the
proportionality test, as the rational connection  to  the
objective of s. 5 of the Act was tenuous.

B.  Court of Appeal (1993), 142 N.B.R. (2d) 1

        (1)  Hoyt C.J.N.B. (for the majority)

13    In  the  Court of Appeal, Hoyt C.J.N.B. (with  whom
Angers  J.A. concurred) held that clauses 2(a),  (b)  and
(c)  of the order offended the respondent's rights  under
ss.  2(a)  and 2(b) of the Charter because they penalized
him by preventing him from continuing to teach because of
his  publicly  expressing his sincerely held  views.   He
defined the issue in the following manner (at p. 16):

        The  issue is whether an individual's freedom  of
        expression  can  prevail against  the  fear  that
        there  will be a public perception that Mr. Ross'
        discriminatory   remarks   directed   against   a
        religious  or ethnic minority are being condoned.
        The discrimination here is aggravated because the
        minority   is  one  that  has  been  historically
        targeted  for  discrimination  and  because   the
        author  of  the discrimination is a teacher,  who
        might be considered a role model to students.

14   Hoyt C.J.N.B. stated that there was "no doubt that a
teacher  may be disciplined for off-duty activities"  (p.
17).  He referred to the decision of this Court in R.  v.
Zundel,  [1992] 2 S.C.R. 731, and stated that the purpose
of the order, removing the respondent from the classroom,
must    be   pressing   and   substantial   before    his
constitutional guarantee of freedom of expression can  be
overridden  by  s.  1  of the Charter.   Viewed  in  that
context  and considering the evidence, he concluded  that
the order could not stand.  He emphasized that it was the
respondent's activities outside the school that attracted
the  complaint.  In such circumstances, he did  not  find
the  remedy  met  a  "specific purpose  so  pressing  and
substantial"    as    to   override   the    respondent's
constitutional  guarantee of freedom of  expression.   To
find otherwise "would, in [his] view, have the effect  of
condoning   the  suppression  of  views  that   are   not
politically popular any given time" (p. 20).  The  denial
of  an  individual's  freedom of  expression  should,  he
stated,  be restricted to the clearest of cases  and  the
evidence in this case did not meet that test.

        (2)  Ryan J.A. (dissenting)

15    The  dissenting judge, Ryan J.A.,  stated  that  "a
teacher  cannot discriminate, in the sense of show  bias,
inside  the  classroom or publicly, in such an  important
area  as  is this target in the Human Rights Act of  this
province" (pp. 27-28).  He added that anti-discrimination
was a "laudable goal", an "important provincial aim", and
stated (at p. 29):

          The right to be free from discrimination is not
        rooted  merely  in  provincial  legislation.   It
        might  be said to be quasi-constitutional from  a
        provincial perspective but it is aided  by  s.  2
        itself  of  the  Charter....   Inherent  in   the
        evilness of discrimination is an outright  attack
        on the freedoms of others protected under s. 2 by
        persons urging their own freedoms as though there
        were no consequences to the exercise of them.

          Therefore, . . . both values must be weighed.

16    Ryan J.A. would have applied s. 1 of the Charter to
save  clause  2(d) of the order.  In his  view,  severing
that  part  of  the  order "from the classroom  situation
simply  does not answer the problem in a meaningful  way"
because  it  "falls too short of the mark" (p.  31).   He
emphasized   that   the  wrong  was  in   the   continued
discrimination the respondent, a public servant and  role
model to children, publicly promoted.  He added that  the
respondent  was  known  as a teacher  whether  within  or
outside  the classroom, and that in this age of pervasive
mass communication, we cannot underestimate the effect on
young people of statements and writings made outside  the
classroom.

17    Ryan J.A. expressed the view that the objective  of
the order, ensuring a discriminatory free environment  in
the  school, was sufficient to limit a Charter  right  or
freedom, and that the order was rationally connected with
that  purpose.  The Human Rights Act was conciliatory  in
nature and, as such, well suited to remedy discriminatory
conduct.

18   Ryan J.A. found that "the redeployment order coupled
with  the  restraint order tempers the  harshness  of  an
otherwise   appropriate  order  of  outright   dismissal"
(p.  35).   A  balance  had  to  be  struck  between  the
respondent's  freedoms,  the  victims'  freedoms  and  an
educational system that is based on impartiality and does
not espouse prejudice, bigotry or bias.  He concluded (at
p. 35):

        A  teacher teaches.  He is a role model.  He also
        teaches  by example.  Children learn by  example.
        Malcolm  Ross teaches by example.  He is  a  role
        model who publishes and promotes prejudice.  This
        is wrong.

          In any event, the Board of Inquiry acted within
        its  mandate and determined, in the balancing  of
        conflicting interests, to protect and improve the
        conditions and interests of the disadvantaged and
        disempowered.

19    The  rights and freedoms guaranteed by the Charter,
he  continued, had to be measured against the  underlying
values  and  principles of a free and democratic  society
such  as  "the  inherent  dignity  of  the  human  being,
commitment to social justice and equality and respect for
cultural  and  group identity" (p. 36).   To  affirm  the
respondent's  unrestrained freedom of expression  and  of
religion  would,  in his view, be to trample  upon  these
underlying  values and principles, which themselves  have
been  entrenched  under the Charter and in  international
law  (at  p. 36).  The respondent, he noted, was free  to
leave  his public employment and exercise his freedom  of
expression and of religion without restraint.   He  added
that  the restriction placed on his freedoms by the order
is  not  absolute, and concluded that  the  order  was  a
justified infringement, the primary goal of which was  to
remedy the effects of discrimination.

III.  Issues

20    Two  broad issues are raised in this  appeal.   The
first  concerns  whether the Board of  Inquiry  erred  in
finding  that the School Board, in continuing  to  employ
the  respondent as a teacher, discriminated under s. 5(1)
of  the  Act.  The second issue is whether the  Board  of
Inquiry's  order directing that the School  Board  remove
the  respondent  from a teaching position  infringes  ss.
2(a) and 2(b)  of the Charter and whether it is saved  by
s.  1 thereof.  Before proceeding to an analysis of these
issues,  however, I propose to dispose  of  a  number  of
issues  raised  by  the parties having  to  do  with  the
appropriate standard of review this Court should adopt in
these proceedings.

A.   Judicial  Review:  Administrative Law  Standard  and
Charter Standard

21    The  appellant Attis' submissions  in  this  appeal
focused  almost  exclusively on the constitutionality  of
the Board's order.  The Human Rights Commission, however,
further  submitted  that the Court  of  Appeal  erred  in
leaving  undisturbed the judgment of the court  of  first
instance  quashing clause 2(d) of the order as in  excess
of  jurisdiction.   This submission is founded  upon  the
standard  of  curial  review  appropriate  for  a   court
reviewing a tribunal's findings in the administrative law
context.

22   The respondent's submissions on this point involve a
constitutional and an administrative law component.  With
respect to the administrative law component, he submitted
that there was insufficient evidence upon which to base a
finding  of  discrimination under s. 5 of  the  Act,  and
thereby urged this Court to review the Board of Inquiry's
finding  on  this point.  He further submitted  that  the
order  granted  to  remedy the alleged discrimination  is
unconstitutional.  Thus, this appeal raises  two  general
issues  in  relation to the standard of judicial  review.
The  first relates to the administrative law issue of the
standard  of  deference to be applied to findings  of  an
administrative tribunal, in this case the Board's finding
of  discrimination  and its remedial order.   The  second
issue relates to the standard of constitutional review to
be  applied  to  the  Board's order.   I  have  found  it
appropriate to bifurcate the analysis according to  these
two   general  questions,  in  light  of  the   different
standards   of   appellate   review   mandated   in   the
administrative law, and in the constitutional context.

23    In  the administrative law context, I am guided  by
this  Court's  unanimous decision  in  Pezim  v.  British
Columbia  (Superintendent of Brokers),  [1994]  2  S.C.R.
557.   In that case, Iacobucci J. stated that the central
question  to  be  asked in ascertaining  the  appropriate
standard  of  review  is  "to determine  the  legislative
intent  in  conferring jurisdiction on the administrative
tribunal"  (pp. 589-90).  In answering this question,  he
found that courts have looked at a whole host of factors,
including  the tribunal's role or function, the existence
of  a  privative clause and whether the question goes  to
the  jurisdiction  of  the  tribunal.   He  identified  a
spectrum  of  applicable  standards  of  review  in   the
following passage, at pp. 590-91:

           Having  regard to the large number of  factors
        relevant  in determining the applicable  standard
        of  review, the courts have developed a  spectrum
        that  ranges  from the standard of reasonableness
        to   that  of  correctness.   Courts  have   also
        enunciated a principle of deference that  applies
        not  just  to the facts as found by the tribunal,
        but  also  to  the  legal  questions  before  the
        tribunal  in the light of its role and expertise.
        At  the reasonableness end of the spectrum, where
        deference  is  at  its highest, are  those  cases
        where  a  tribunal protected by a true  privative
        clause,   is   deciding  a  matter   within   its
        jurisdiction  and  where there  is  no  statutory
        right  of  appeal.  See Canadian Union of  Public
        Employees,  Local  963  v. New  Brunswick  Liquor
        Corp., [1979] 2 S.C.R. 227; U.E.S., Local 298  v.
        Bibeault,  [1988]  2  S.C.R.  1048,  at  p.  1089
        (Bibeault), and Domtar Inc. v. Quebec (Commission
        d'appel  en matière de lésions professionnelles),
        [1993] 2 S.C.R. 756.

           At  the correctness end of the spectrum, where
        deference in terms of legal questions is  at  its
        lowest,  are those cases where the issues concern
        the  interpretation of a provision  limiting  the
        tribunal's jurisdiction (jurisdictional error) or
        where  there is a statutory right of appeal which
        allows  the  reviewing court  to  substitute  its
        opinion  for that of the tribunal and  where  the
        tribunal has no greater expertise than the  court
        on  the issue in question, as for example in  the
        area  of  human  rights.  See for example  Zurich
        Insurance   Co.   v.   Ontario   (Human    Rights
        Commission),   [1992]  2   S.C.R.   321;   Canada
        (Attorney  General) v. Mossop,  [1993]  1  S.C.R.
        554,  and University of British Columbia v. Berg,
        [1993] 2 S.C.R. 353.

24    The  Court in Pezim concluded that the  case  there
fell  somewhere between these two extremes.  In the  area
of  human  rights, however, Iacobucci J. noted  that  the
degree  of deference to be accorded was at the lower  end
of  the  spectrum.  This had earlier been established  by
the  cases  there  cited.  Canada (Attorney  General)  v.
Mossop,  [1993]  1 S.C.R. 554, provides a clear  example.
There,  speaking  for  the  majority  on  this  point,  I
discussed  the  deference  the  courts  should  show   to
administrative  tribunals on the basis of their  relative
expertise.  In observing that human rights tribunals  are
not analogous to labour tribunals, I stated, at p. 585:

        A  labour arbitrator operates, under legislation,
        in  a  narrowly restricted field, and is selected
        by  the parties to arbitrate a difference between
        them  under  a collective agreement  the  parties
        have   voluntarily   entered.    As   well,   the
        arbitrator's  jurisdiction  under   the   statute
        extends to the determination of whether a  matter
        is  arbitrable.  This is entirely different  from
        the  situation of a human rights tribunal,  whose
        decision is imposed on the parties and has direct
        influence  on  society at large  in  relation  to
        basic social values.

On  the  basis  of this difference between  human  rights
tribunals  and labour tribunals, the Court  confined  the
superior  expertise of a human rights tribunal  to  fact-
finding and adjudication in a human rights context.   The
standard  of  review  on the basis of  reasonableness  is
applicable  to  these  matters.  In relation  to  general
questions  of  law,  courts  must  be  supposed   to   be
competent, and a standard of correctness is appropriate.

25    There  is  an  additional  element  in  this  case,
however,  owing to the fact that the Board of Inquiry  in
this appeal was constituted under the New Brunswick Human
Rights Act, s. 21(1) of which stipulates:

        21(1)   All  orders and decisions of a  Board  of
        Inquiry  are final and shall be made in  writing,
        together with a written statement of the  reasons
        therefor,   and  copies  of  all   such   orders,
        decisions and statements shall be provided to the
        parties and to the Minister.

Creaghan   J.  found  this  provision  to  constitute   a
privative  clause  and  held that a  standard  of  patent
unreasonableness was to be applied by a reviewing  court,
and this position is supported by the Commission.

26    I  had occasion in Mossop to discuss the effect  of
the  existence  of a privative clause in  the  tribunal's
constituent  legislation.  The presence  of  a  privative
clause  discloses the legislative intention  to  restrict
judicial  review  of  the administrative  tribunal.   The
jurisprudence   of   this  Court  has  established   that
privative  clauses indicate an intention on the  part  of
the  legislature to shield from review.   However,  there
are  privative  clauses and privative  clauses,  and  the
extent   to  which  the  legislature  intends  to  afford
protection  from review is a function of the language  of
the  clause,  the  nature  of  the  legislation  and  the
expertise of the tribunal in question.

27    The  foregoing can be illustrated by an examination
of  Dayco  (Canada) Ltd. v. CAW-Canada, [1993]  2  S.C.R.
230.   In  that case, the Court considered the  privative
effect  of  a  clause providing that the  decision  of  a
labour  arbitration tribunal was "final and binding  upon
the  parties".   That  case involved a  determination  of
whether  an arbitrator making an inquiry into  whether  a
matter  is  arbitrable  is permitted  to  be  wrong.   In
essence,  this  Court  sought to define  the  appropriate
standard  of review.  Adopting a pragmatic and functional
analysis,  the majority concluded that the provision  had
limited  privative effect, but on the  type  of  specific
issue  in question, which involved a general question  of
law,  the  arbitrator had to be correct.  More  important
than  the actual wording of the provision was the  degree
of  relative expertise possessed by the tribunal over the
particular   specialized  questions.   The   purpose   of
arbitration was a relevant factor in the analysis in that
case.   This  factor,  I identified  as  constituting  an
amalgamation  of other factors including the  purpose  of
the statute, the reason for the tribunal's existence, the
expertise  of its members, and the nature of the  problem
before it.

28    Applying a similar analysis to the present case,  I
find  that  s. 21(1) of the Act imports limited privative
effect  only.   The  driving considerations  for  such  a
determination  are the purpose of human rights  tribunals
and  their relative expertise.  As I noted in Mossop, the
purpose  of human rights commissions is multifaceted,  in
that  they  serve  a  general  educational  role  to  the
government, the public and the courts on matters of human
rights, provide for investigation and settlement of human
rights complaints and act in an adjudicative capacity  to
settle   particular  disputes.   The  expertise  of   the
tribunals appointed under their aegis is limited to fact-
finding and adjudication in human rights matters.  In the
process of performing its adjudicative function, a  human
rights tribunal will be called on to apply general  legal
reasoning and statutory interpretation, matters which are
ultimately within the province of the judiciary.

29    That  having  been said, I do not think  the  fact-
finding  expertise  of human rights tribunals  should  be
restrictively  interpreted,  and  it  must  be   assessed
against  the  backdrop  of  the particular  decision  the
tribunal is called upon to make.  Here, inquiry into  the
appropriate standard of review is largely governed by the
fact  that the administrative law issue raised calls upon
this   Court   to   consider  whether  the   finding   of
discrimination  by the Board of Inquiry  was  beyond  its
jurisdiction.  A finding of discrimination is impregnated
with  facts, facts which the Board of Inquiry is  in  the
best  position to evaluate.  The Board heard considerable
evidence relating to the allegation of discrimination and
was  required to assess the credibility of the witnesses'
evidence  and  draw inferences from the factual  evidence
presented  to  it  in making a determination  as  to  the
existence of discrimination.  Given the complexity of the
evidentiary  inferences made on the basis  of  the  facts
before  the  Board,  it  is  appropriate  to  exercise  a
relative   degree  of  deference  to   the   finding   of
discrimination,   in  light  of  the   Board's   superior
expertise in fact-finding, a conclusion supported by  the
existence  of words importing a limited privative  effect
into the constituent legislation.

30    The  administrative  law  issue  also  involves   a
challenge  to the order granted by the Board pursuant  to
its  finding of discrimination.  On strict administrative
law  considerations, the Board, by s. 20(6.2) of the  New
Brunswick Act, is granted very broad discretion  to  make
orders  pursuant to a finding of a violation of the  Act.
However, the issue is more complicated than that in  this
case.   In considering the applicable standard of  review
to  the Board's order, it is incumbent upon this Court to
examine  the relationship between the administrative  law
standard  and  the  standard  dictated  by  the  Charter,
recalling   that   the  respondent  has  challenged   the
constitutionality of the order.

31    The  precise relationship between the  standard  of
review in the administrative law context and that  to  be
applied  under the Charter was considered in this Court's
decision  in  Slaight Communications  Inc.  v.  Davidson,
[1989]  1  S.C.R. 1038.  Speaking for the Court  on  this
point,  Lamer J., as he then was, stated that it was  not
open  to  question  that the order of  an  administrative
tribunal  was subject to the application of the  Charter.
The  administrative  tribunal is a creature  of  statute,
appointed  pursuant  to  a  legislative  provision,   and
deriving    its   power   from   statute.    Where    the
administrative  tribunal  is  constituted   pursuant   to
legislation   conferring   discretion,   the   discretion
conferred  must  not include the power  to  infringe  the
Charter,  unless  that  power is expressly  conferred  or
necessarily  implied.  In the result,  an  administrative
tribunal acting pursuant to its delegated powers  exceeds
its  jurisdiction if it makes an order that infringes the
Charter.

32    In  Slaight Communications, Dickson  C.J.  did  not
enter  into  a  searching examination of the relationship
between the administrative law standard of review and the
new  constitutional standard of review under the Charter.
He  wisely  noted  that  the relationship  between  these
standards would need to be worked out in future cases and
simply  confined himself to a few comments.   From  these
comments,  it  is  evident that he saw  no  need  for  an
administrative law review of values that had  been  dealt
with  pursuant to a Charter examination under s.  1.   It
would  seem obvious that a review of these values  on  an
administrative  law standard should  not  impose  a  more
onerous  standard upon government than under the  Charter
review.  However, the administrative law standard and the
Charter  standard are not conflated into one.   When  the
issues  involved  are  untouched  by  the  Charter,   the
appropriate  administrative  law  standard  is   properly
applied  as  a standard of review.  In the present  case,
where the values invoked are Charter values, if the order
is  found  to  pass the s. 1 analysis, then  I  am  quite
unable  to  see how it could be patently unreasonable  on
the  basis of these same values.  Conversely, if  at  the
conclusion  of the value analysis under s.  1  the  Court
holds  the order unconstitutional, then its acceptability
according to an administrative law standard is no  longer
relevant,  the  Board's jurisdiction  having  necessarily
been   exceeded.   As  Dickson  C.J.  noted,   the   more
sophisticated  and structured analysis of  s.  1  is  the
proper  framework within which to review Charter  values.
I  shall  consider the constitutionality of  the  Board's
order later.

33    What requires examination at the administrative law
level  is  the  Board's decision regarding the  issue  of
discrimination  and  the statutory  jurisdiction  of  the
Board to make its order.  These reviews are untouched  by
the   Charter.   Rather,  they  must  be  determined   in
accordance  with the interpretation of the provisions  of
the   Act   governing  the  Board's  jurisdiction.    The
authority  of  the  Board  to  determine  the  issue   of
discrimination  is found in s. 20(1).  Its  findings  are
largely based on facts, about which this Court in  Mossop
has   stated,  human  rights  boards  have   a   relative
expertise, a consideration that may be strengthened by s.
21(1)  of the Act.  The issue of discrimination  will  be
given  attention  shortly.  So far as the  power  of  the
Board  to  make  the impugned order is concerned,  it  is
enough to say that the Board's discretionary power is set
forth  in s. 20(6.2) of the Act in such broad terms  that
it  cannot  be  said  to fall outside  its  jurisdiction.
Indeed, s. 20(6.2)(a) and (b) authorize the Board to make
any order to effect compliance with the Act or to rectify
the  harm  caused by a violation of the Act.   The  order
must, of course, be based on a full consideration of  the
facts.  Here again the Board is entitled to deference  in
respect  of its factual findings.  There can be no  doubt
that,  apart  from  the Charter issues,  and  assuming  a
violation   of  the  Act,  the  order  fell  within   the
jurisdiction  of  the  Board.  I shall  turn  then  to  a
detailed discussion of the issue of discrimination.

B.  Discrimination

34    In  light  of  the foregoing, it  is  important  to
approach with deference the findings of fact made by  the
Board  in  the  course of determining whether  there  was
discrimination on the part of the School Board.   Bearing
this  in  mind,  the argument of the appellant  Attis  is
essentially this:  the Board was correct in finding  that
the   respondent's  continued  employment  as  a  teacher
constituted  discrimination under  s.  5(1)  of  the  New
Brunswick    Human   Rights   Act.    The   finding    of
discrimination, he continues, was made in  light  of  the
respondent's   off-duty  conduct,  which   poisoned   the
educational  environment at the  school  and  created  an
environment  in  which  Jewish students  were  forced  to
confront  racist  sentiment.   His  continued  employment
signalled  the  School Board's toleration  of  his  anti-
Semitic  conduct and compromised its ability  to  provide
discrimination-free educational services.

35   Section 5(1)(b) of the Act provides:

        5(1)  No person, directly or indirectly, alone or
        with  another, by himself or by the interposition
        of another, shall

                         . . .

            (b)  discriminate against any person or class
          of  persons  with respect to any accommodation,
          services   or  facilities  available   to   the
          public,

        because   of  race,  colour,  religion,  national
        origin,  ancestry, place of origin, age, physical
        disability,  mental disability,  marital  status,
        sexual orientation or sex.

The   Board   of  Inquiry  found  that  s.  5  guarantees
individuals  freedom from discrimination  in  educational
services  available to the public.  In this respect,  the
Board stated (at p. 60):

        The   [educational]  services  provided   in   an
        educational  facility are there for  the  general
        purpose  of  educating  students.   Education  of
        students  must be viewed in the broad context  of
        including not only the formal curriculum but  the
        more  informal  aspects of  education  that  come
        through  interchange  and  participation  in  the
        whole  school  environment.   This  would  be  in
        keeping  with the broad purposive approach  taken
        to    the    interpretation   of   human   rights
        legislation.   Section  5  requires  that   these
        services  be  available to all  students  without
        discrimination  on  the  basis  of  religion  and
        ancestry, amongst other grounds.

36   Thus the Board found that s. 5 "attempts to create a
learning environment which is as free from discriminatory
effects as is reasonably possible given the influence  of
factors  beyond  the control of those  administering  the
educational system" (pp. 61-62).  It concluded  that  the
School  Board  had  discriminated against  the  appellant
Attis  contrary to s. 5(1) of the Act, on the basis  that
the  effect of its continued employment of the respondent
created  a  discriminatory effect, one that a  reasonable
person  would anticipate from the School Board's  failure
to  address the conduct of the respondent in a meaningful
way.

37   The respondent does not contest the Board's findings
in  relation to his off-duty conduct and publications, or
in  relation  to  anti-Semitic incidents  in  the  School
District.  His point is that there is no direct  evidence
linking  these two findings.  I am unable to  agree  with
this contention.  For the following reasons, I am of  the
view  that  the  finding  of discrimination  against  the
School Board must stand.

38   The Board of Inquiry heard evidence of the nature of
the  respondent's writings, publications and  statements,
which  include  a letter to the editor of  The  Miramichi
Leader,  a  local television program interview,  and  the
four  books or pamphlets listed in the order.  The  Board
found,   without  hesitation,  that  these   publications
contain   prima  facie  discriminatory  comments  against
persons  of Jewish faith and ancestry.  Their effect,  in
its  view, was to denigrate the faith and beliefs of Jews
and  to  incite in Christians contempt for those  of  the
Jewish  faith  by  their  assertion  that  they  seek  to
undermine  freedom, democracy and Christian  beliefs  and
values.   The  Board further found that the  respondent's
comments  speak of Jews as the synagogue  of  Satan,  and
accuse Judaism of teaching that ". . . Jesus Christ is  a
bastard, a lewd deceiver, a false prophet who is  burning
in  Hell"  and  that the Virgin Mary  is  a  whore.   The
respondent  was  also found to have continuously  alleged
that the Christian faith and way of life are under attack
as  a  result  of an international conspiracy  headed  by
Jews.   The  Board characterized his primary  purpose  as
being "to attack the truthfulness, integrity, dignity and
motives  of  Jewish persons" (p. 73).   It  also  made  a
finding of fact as to the respondent's notoriety  in  the
community  of Moncton, and that continued media  coverage
of  his  statements and writings over an extended  period
contributed to his views having gained notoriety  in  the
community  and  beyond.  Given that  these  findings  are
findings  of  fact  supported by the evidence,  they  are
entitled to deference by this Court upon review, in light
of the relative expertise of the Board in relation to the
art  of  fact-finding in a human rights  context,  and  I
accept them.

39    On the basis of the factual evidence disclosing the
substance of the respondent's off-duty conduct,  and  the
notoriety  of this conduct in the community  and  beyond,
the  Board considered how such conduct impacted upon  the
respondent's   teaching  ability.   In  concluding   that
conduct of the type evinced by the facts of this case may
undermine the capacity of a teacher to fulfil his or  her
position, the Board noted (at pp. 67-68):

        In the case of the teacher who has proclaimed the
        discriminatory  views  publicly  the  effect  may
        adversely impact on the school community.  It may
        raise  fears and concerns of potential misconduct
        by   the  teacher  in  the  classroom  and,  more
        importantly,  it  may be seen as  a  signal  that
        others   view   these   prejudicial   views    as
        acceptable.  It may lead to a loss of dignity and
        self-esteem  by  those  in the  school  community
        belonging to the minority group against whom  the
        teacher is prejudiced.

           The  Act  does  not  prohibit  a  person  from
        thinking or holding prejudicial views.  The  Act,
        however,  may affect the right of that person  to
        be  a  teacher  when  those  views  are  publicly
        expressed in a manner that impacts on the  school
        community   or  if  those  views  influence   the
        treatment  of  students in the classroom  by  the
        teacher.

40     Whether  the  respondent's  conduct  did  in  fact
adversely impact on the school community must be answered
on  the basis of the actual environment in the school  as
established  by  the evidence.  The Board heard  evidence
from  two students in the School Board, whom it found  to
be  credible witnesses.  The students described in detail
the  educational community in the school district.   They
gave evidence of repeated and continual harassment in the
form  of  derogatory  name calling  of  Jewish  students,
carving  of  swastikas by other students into  their  own
arms  and  into the desks of Jewish children, drawing  of
swastikas  on  blackboards, and general  intimidation  of
Jewish  students.  The appellant's daughter, Yona  Attis,
one  of  the  student  witnesses, gave  evidence  of  one
occasion   on  which  she  had  planned  to  attend   the
respondent's  school  to  watch a gymnastic  competition,
when  she was advised that she could not go to the school
because that was ". . . where the teacher who hates  Jews
works".   The teacher referred to was identified  as  the
respondent.   Yona  Attis stated that  she  attended  the
competition,  but that she felt scared while  there,  and
anxious  ". . . that someone was going to come up  behind
[her]  and  grab  [her] and beat [her] up or  something".
Further  evidence  of  taunting and intimidation  of  the
Jewish students was disclosed in her testimony, including
incidents  of  shouting  and  signalling  of  the  "Heil,
Hitler"  salute.   What  this  evidence  discloses  is  a
poisoned educational environment in which Jewish children
perceive  the potential for misconduct and are likely  to
feel  isolated  and suffer a loss of self-esteem  on  the
basis of their Judaism.

41   It is to be noted that the testimony of the students
did  not establish any direct evidence of an impact  upon
the  school district caused by the respondent's  off-duty
conduct.   Notwithstanding this lack of direct  evidence,
the Board concluded as follows (at p. 82):

        Although  there was no evidence that any  of  the
        students making anti-Jewish remarks were directly
        influenced  by  any of Malcolm  Ross'  teachings,
        given  the  high degree of publicity  surrounding
        Malcolm Ross' publications it would be reasonable
        to  anticipate  that his writings were  a  factor
        influencing  some discriminatory conduct  by  the
        students.  [Emphasis added.]

This  inference drawn on the basis of what is  reasonable
to  anticipate must be considered in light of whether, in
the  circumstances, it is reasonable to  anticipate  that
the   respondent's   off-duty  conduct   "poisoned"   the
educational  environment in the School Board and  whether
it  is sufficient to find discrimination according  to  a
standard  of  what  is reasonable to  anticipate  as  the
effect of the off-duty conduct.  I will consider each  of
these points in turn.

42   A school is a communication centre for a whole range
of  values and aspirations of a society.  In large  part,
it defines the values that transcend society  through the
educational  medium.   The school is  an  arena  for  the
exchange  of ideas and must, therefore, be premised  upon
principles  of  tolerance and impartiality  so  that  all
persons  within the school environment feel equally  free
to participate.  As the Board of Inquiry stated, a school
board   has   a  duty  to  maintain  a  positive   school
environment for all persons served by it.

43   Teachers are inextricably linked to the integrity of
the  school system.  Teachers occupy positions  of  trust
and  confidence,  and exert considerable  influence  over
their  students  as  a  result of their  positions.   The
conduct  of a teacher bears directly upon the community's
perception of the ability of the teacher to fulfil such a
position of trust and influence, and upon the community's
confidence  in  the  public school  system  as  a  whole.
Allison Reyes considers the importance of teachers in the
education process and the impact that they bear upon  the
system,  in  "Freedom  of Expression  and  Public  School
Teachers"  (1995), 4 Dal. J. Leg. Stud. 35.  She  states,
at p. 42:

            Teachers  are  a  significant  part  of   the
        unofficial curriculum because of their status  as
        "medium."    In  a  very  significant   way   the
        transmission  of  prescribed "messages"  (values,
        beliefs, knowledge) depends on the fitness of the
        "medium" (the teacher).

44    By  their  conduct, teachers as  "medium"  must  be
perceived  to  uphold the values, beliefs  and  knowledge
sought  to  be  transmitted by the  school  system.   The
conduct of a teacher is evaluated on the basis of his  or
her  position,  rather than whether  the  conduct  occurs
within the classroom or beyond.  Teachers are seen by the
community  to  be the medium for the educational  message
and  because of the community position they occupy,  they
are  not able to "choose which hat they will wear on what
occasion"  (see Re Cromer and British Columbia  Teachers'
Federation (1986), 29 D.L.R. (4th) 641 (B.C.C.A.), at  p.
660);  teachers  do not necessarily check their  teaching
hats  at the school yard gate and may be perceived to  be
wearing their teaching hats even off duty.  Reyes affirms
this point in her article, supra, at p. 37:

           The  integrity  of the education  system  also
        depends  to  a  great extent upon  the  perceived
        integrity of teachers.  It is to this extent that
        expression   outside   the   classroom    becomes
        relevant.   While  the  activities  of   teachers
        outside  the  classroom do  not  seem  to  impact
        directly  on  their ability to  teach,  they  may
        conflict  with  the  values which  the  education
        system perpetuates.  [Emphasis in original.]

I  find  the following passage from the British  Columbia
Court  of Appeal's decision in Abbotsford School District
34 Board of School Trustees v. Shewan (1987), 21 B.C.L.R.
(2d) 93, at p. 97, equally relevant in this regard:

           The  reason why off-the-job conduct may amount
        to  misconduct is that a teacher holds a position
        of  trust, confidence and responsibility.  If  he
        or  she  acts in an improper way, on or  off  the
        job, there may be a loss of public confidence  in
        the  teacher and in the public school  system,  a
        loss  of  respect  by students  for  the  teacher
        involved, and other teachers generally, and there
        may  be  controversy within the school and within
        the  community which disrupts the proper carrying
        on of the educational system.

45    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.  I do not wish to be understood
as  advocating an approach that subjects the entire lives
of  teachers to inordinate scrutiny on the basis of  more
onerous moral standards of behaviour.  This could lead to
a   substantial  invasion  of  the  privacy  rights   and
fundamental  freedoms  of  teachers.   However,  where  a
"poisoned"  environment  within  the  school  system   is
traceable  to the off-duty conduct of a teacher  that  is
likely  to produce a corresponding loss of confidence  in
the  teacher and the system as a whole, then the off-duty
conduct of the teacher is relevant.

46     The   next  question  is  whether  a  finding   of
discrimination  may be supported by an inference  on  the
basis of what is reasonable to anticipate as an effect of
the  off-duty conduct.  In Fraser v. Public Service Staff
Relations  Board, [1985] 2 S.C.R. 455, a  public  servant
was  discharged for publicly criticizing the  government.
Dickson   C.J.   observed  two   forms   of   impairment:
impairment to perform the specific job and impairment  in
a  wider sense.  With respect to impairment of the  first
kind,  the general rule, he stated, should be that direct
evidence  of  impairment is required.  He qualified  this
rule,  however, as not absolute and stated that when  the
nature of the occupation is important and sensitive,  and
when  the  substance, form and context of the  employee's
comments are extreme, an inference of impairment  may  be
sufficient.   In  that case, Dickson  C.J.  accepted  the
finding of the adjudicator that the public servant's off-
duty conduct "could or would give rise to public concern,
unease  and  distrust  of  his  ability  to  perform  his
employment duties" (pp. 472-73).

47    Similarly  in this case, the Board found  that  the
respondent's  off-duty comments impaired his  ability  to
fulfil his teaching position.  The teaching occupation is
uniquely important.  This, combined with the substance of
the  respondent's writings and statements and the  highly
public  media through which they were disseminated,  i.e.
television  and published works, supports the  conclusion
that this finding of the Board is correct.

48     Returning  to  Fraser,  supra,  with  respect   to
impairment  in the wider sense,  Dickson C.J. stated,  at
p. 473:

        It  is open to an adjudicator to infer impairment
        on the whole of the evidence if there is evidence
        of  a  pattern of behaviour which an  adjudicator
        could   reasonably  conclude  would  impair   the
        usefulness of the public servant.  Was there such
        evidence of behaviour in this case?  In order  to
        answer  that  question  it  becomes  relevant  to
        consider the substance, form and context of  [the
        impugned conduct].

In  the present case, I note that the Board was presented
with  evidence from Ernest Hodgson on the likely  effects
of  the  respondent's conduct.  He stated that the Jewish
students  having  a general knowledge of  the  respondent
could  be fearful of him.  Indeed, this is borne  out  in
Yona  Attis' testimony, and is supported by the pervasive
awareness  of  the  respondent's conduct  throughout  the
community.  Ernest Hodgson gave further evidence that  it
was  possible  that Jewish students would  be  negatively
influenced  by  the respondent and that  they  would  see
themselves  as  the  subject of suspicion,  distrust  and
isolation.    He  considered  that  there  might   be   a
reluctance  on  the  part  of Jewish  parents  to  become
involved  in  the  school system that might  deter  other
Jewish families from moving to Moncton.

49    Pursuant  to a television interview  given  by  the
respondent in 1989, the School Board itself characterized
the  effect produced by the respondent's conduct in  this
manner:

        .  .  .  the  climate created by this  aggressive
        approach  creates  hostility that  permeates  and
        interferes with the desired tolerance required by
        the  school system to show respect for the rights
        of  all  students and their families to  practice
        their religious faith.

As  to whether there is impairment on a broader scale,  I
conclude  on  the  authority of  Fraser,  supra,  that  a
reasonable  inference  is  sufficient  in  this  case  to
support  a finding that the continued employment  of  the
respondent impaired the educational environment generally
in  creating a "poisoned" environment characterized by  a
lack  of  equality and tolerance.  The respondent's  off-
duty  conduct  impaired his ability to be  impartial  and
impacted  upon the educational environment  in  which  he
taught.

50     The  Board  found  that  School  District  No.  15
discriminated contrary to s. 5 of the Act.  It found  the
School  Board  had  been reluctant to  take  disciplinary
action   against  the  respondent,  notwithstanding   the
publicity his conduct received and the awareness  on  the
part  of  the  School  Board  of  the  situation  in  the
community at large.  In effect, its passivity signalled a
silent  condonation of, and support for the  respondent's
views.   The Board found an obligation within the  school
community "to work towards the creation of an environment
in  which  students of all backgrounds will feel welcomed
and equal" (p. 83).  It stated (at p. 80):

        In  such  situations it is not sufficient  for  a
        school  board to take a passive role.   A  school
        board  has  a duty to maintain a positive  school
        environment for all persons served by it  and  it
        must  be  ever  vigilant of anything  that  might
        interfere with this duty.

I  am  in complete agreement with this statement,  and  I
refer  to the findings of the Board that the School Board
failed  to  maintain a positive environment.  The  School
Board, it found, was reluctant to become involved and was
slow to respond when complaints about the respondent were
first  raised.  The evidence discloses that as  early  as
1978,  letters  were  sent  to  the  Director  of  School
District No. 15 regarding concerns about the respondent's
continued employment, and requesting his dismissal.   The
position  of the School Board at that time was  expressed
by  Nancy  Humphrey, Chairperson of the School Board,  as
being that the respondent could do what he wanted on  his
own  time.  From 1979 through 1984, the respondent's  in-
class  teaching  was monitored; however, in  1983,  media
coverage of the respondent's activities was augmented.

51     By   1986-87,  the  School  Board  was   receiving
approximately  10  to  20 letters a week  concerning  the
respondent.   After he wrote an article in The  Miramichi
Leader  in  1986,  a  scheme directed  at  more  frequent
monitoring of his class was put into place.  By 1987, the
public  controversy surrounding the respondent had  grown
concerning  the level of the School Board's  involvement,
and  the  question as to whether the respondent would  be
charged  under  the  hate literature  provisions  of  the
Criminal Code was raised.  A committee was established by
the School Board in 1987 to review the possible impact of
the  issue  on the learning environment.  This committee,
however, was found by the Board of Inquiry to have failed
to address the questions it should have and to appreciate
the subtle forms discrimination may take.

52   According to the acting superintendent, Cheryl Reid,
in  1988  the respondent was "cautioned strongly  against
any  further publications regarding [his] views".  In the
same  year,  the  first  disciplinary  action  was  taken
against  the  respondent, at which time he  was  informed
that  any further publications, or public discussions  of
his  views  or works would result in greater disciplinary
action  and possible dismissal.  A reprimand in the  form
of  a  "gag  order"  was  placed on  his  personal  file.
Subsequent  to this, three complaints were filed  against
him.   The Human Rights Commission began an investigation
in  response to these complaints.  The Board of  Inquiry,
however,  found  that the School Board strongly  resisted
the  investigation.  The investigation  recommended  that
the Board of Inquiry be established in 1988.

53    In March 1989, the School Board adopted Policy  No.
5006,  intended  to ensure that students were  offered  a
positive  and  safe learning environment, in  which  they
were  taught respect for the rights and freedoms  of  the
individual.  In September 1989, the School Board  decided
to  remove  the  "gag order" from the respondent's  file.
Two  months  later, the respondent appeared on television
to  express  and  discuss his views.   The  School  Board
responded   by  ordering  a  severe  reprimand   to   the
respondent, by way of letter, requesting that he  refrain
from "publicly assailing" another religion.  The Board of
Inquiry  found it difficult to understand why the  School
Board  only gave the respondent a reprimand at this  time
as  opposed to terminating his employment, given that the
respondent  had been sent a strongly worded letter  along
with  a  copy of Policy No. 5006 making the intention  of
the new policy very clear to him.

54   A review of this chronology led the Board of Inquiry
to  conclude  that the School Board had discriminated  in
its   failure  to  take  a  proactive  approach  to   the
controversy  surrounding the respondent,  the  effect  of
which  was  to suggest the acceptance of the respondent's
views and of a discriminatory learning environment.   The
finding  of  discrimination against the School  Board  is
supported by the evidence and I accordingly see no  error
in this finding of the Board of Inquiry.

55    A  finding  of  discrimination  does  not  end  the
analysis, however.  The respondent also raises the  issue
of  the  validity  of the order.  As  I  have  previously
stated,  the  important  question  in  relation  to   the
validity  of  the order is whether it is constitutionally
sound.   The  respondent  submits  that  his  freedom  of
expression  and freedom of religion have been  infringed.
I turn now to these constitutional issues.

C.  Freedom of Expression

56   Section 2(b) of the Charter provides:

           2.   Everyone  has  the following  fundamental
freedoms:

                         . . .

            (b)  freedom of thought, belief, opinion  and
          expression, including freedom of the press  and
          other media of communication;

57    The  appellants, with the exception of the Canadian
Jewish Congress, concede that the respondent's freedom of
expression was infringed by the Board's order.  They were
right to concede this point.  The order does infringe the
respondent's freedom of expression, a conclusion that  is
supported  by the discourse surrounding s.  2(b)  of  the
Charter.

58    The  expression in question in this appeal concerns
the  respondent's writings, publications and  statements.
The  Board of Inquiry considered the four books set forth
in  the order, as well as the letter to the editor in The
Miramichi Leader, and the television interview  in  1989,
as  the  most  important.  The gist of  the  respondent's
message  is  that  Jews are heading a "conspiracy"  or  a
"great  Satanic movement" against Christians with a  view
to  destroying the Christian faith and civilization.  The
respondent attributes many of the "evils in our land"  to
the  fact that Christians have permitted "those `who hate
the  Lord'  to rule over (them)".  The Board referred  to
the   contents  of  the  letter  and  found   within   it
encouragement to others to condemn all Jews and to  throw
off   the   "yoke  of  Jewish  domination".   With   this
description  of the expression in issue, I  turn  to  the
jurisprudence surrounding s. 2(b).

59    Section  2(b)  must to be given a broad,  purposive
interpretation;  see Irwin Toy Ltd. v.  Quebec  (Attorney
General),  [1989]  1  S.C.R. 927.   The  purpose  of  the
guarantee  is  to  permit  free expression  in  order  to
promote  truth,  political and social participation,  and
self-fulfilment; see Zundel, supra.  As Cory J. put it in
Edmonton Journal v. Alberta (Attorney General), [1989]  2
S.C.R. 1326, at p. 1336, "[i]t is difficult to imagine  a
guaranteed right more important to a democratic society";
as  such, freedom of expression should only be restricted
in the clearest of circumstances.

60    Apart  from  those rare cases where  expression  is
communicated in a physically violent manner,  this  Court
has  held that so long as an activity conveys or attempts
to  convey a meaning, it has expressive content and prima
facie  falls within the scope of the guarantee of freedom
of  expression;  see Irwin Toy, supra, at  p.  969.   The
scope  of  constitutional protection  of  expression  is,
therefore,  very  broad.  It is not restricted  to  views
shared  or  accepted  by the majority,  nor  to  truthful
opinions.   Rather,  freedom  of  expression  serves   to
protect  the right of the minority to express  its  view,
however  unpopular such views may be; see Zundel,  supra,
at  p. 753.  The wide ambit of s. 2(b) is underscored  by
the following passage from McLachlin J.'s reasons in that
case, at pp. 752-53:

           The purpose of the guarantee is to permit free
        expression   to  the  end  of  promoting   truth,
        political  or  social  participation,  and  self-
        fulfilment.    That  purpose   extends   to   the
        protection of minority beliefs which the majority
        regard  as wrong or false:  Irwin Toy, supra,  at
        p.  968.   Tests  of  free expression  frequently
        involve  a contest between the majoritarian  view
        of  what  is  true  or  right  and  an  unpopular
        minority  view.  As Holmes J. stated  over  sixty
        years  ago, the fact that the particular  content
        of   a  person's  speech  might  "excite  popular
        prejudice" is no reason to deny it protection for
        "if  there  is  any principle of the Constitution
        that  more imperatively calls for attachment than
        any other it is the principle of free thought  --
        not  free thought for those who agree with us but
        freedom  for  the thought that we hate":   United
        States v. Schwimmer, 279 U.S. 644 (1929), at  pp.
        654-55.

61    In  Irwin Toy, supra, and more recently  in  R.  v.
Keegstra,  [1990] 3 S.C.R. 697, this Court has adopted  a
two-step  enquiry  to determine whether  an  individual's
freedom  of  expression  is infringed.   The  first  step
involves  determining  whether the individual's  activity
falls  within the freedom of expression protected by  the
Charter.   The  second step is to determine  whether  the
purpose or effect of the impugned government action is to
restrict that freedom.

62    There  can  be  no doubt that  the  first  step  is
satisfied.  The writings, publications and statements  of
Malcolm Ross constitute expression within the meaning  of
s.  2(b).   They clearly convey meaning.   The  truth  or
falsehood  of  their  contents is  not  a  matter  to  be
considered  in  the context of determining  whether  they
fall  within the guarantee of freedom of expression;  nor
is the unpopularity of the views espoused within them.

63    Further support for this position may be  found  in
this  Court's  decision  in Keegstra,  supra,  where  the
factual  similarity of the content of the  expression  in
that case with that of the respondent is striking.  There
the content of the expression in issue was as follows, at
p. 714:

           Mr.  Keegstra's  teachings attributed  various
        evil qualities to Jews....  He taught his classes
        that  Jewish  people seek to destroy Christianity
        and  are  responsible  for depressions,  anarchy,
        chaos,  wars  and revolution.  According  to  Mr.
        Keegstra,  Jews  "created the Holocaust  to  gain
        sympathy" and, in contrast to the open and honest
        Christians, were said to be deceptive,  secretive
        and inherently evil.

The  "hate  propaganda"  in that  case  was  held  to  be
protected by s. 2(b).  Dickson C.J. rejected the argument
that  hate propaganda was analogous to violence and found
that its repugnance stemmed from its content and not from
its  form.   It  was,  therefore, expression  within  the
meaning  of the provision, as is the expression  in  this
appeal.

64    This  brings  me to the second step  of  the  test,
determining whether the purpose or effect of the impugned
government action is to restrict the individual's freedom
of  expression.   In this case, it is the  order,  rather
than  its  constituent legislation,  that  is  called  in
question.   Consequently, it is the purpose of the  order
that must be considered.

65    Turning  to  this question, then,  this  Court  has
adopted  an approach which examines the "facial"  purpose
of  the legislative means chosen by Parliament to achieve
its ends.  In Zundel, supra, the constitutionality of the
"false   news"  provisions  of  the  Criminal  Code,   in
particular   s.  181,  was  in  issue.   The  intervener,
Canadian Jewish Congress, argued that the purpose of  the
provisions  was  to prevent the harmful  consequences  of
publications,   there   too  anti-Semitic   publications.
McLachlin  J. held that the intervener's argument  missed
the  point  noting  that  this  Court  has  examined  the
"facial"  purpose of a legislative technique  adopted  to
achieve a particular end.  She stated, at p. 759:

        First,  this  Court  has  never  focused  upon  a
        particular  consequence of a  proscribed  act  in
        assessing  the legislation's purpose;  the  Court
        examines   what  might  be  called  the  `facial'
        purpose  of the legislative technique adopted  by
        Parliament  to  achieve  its  ends:    see,   for
        example,   Irwin  Toy,  supra,  at  pp.   973-76.
        Second,  a  legislative provision may  have  many
        effects.   One demonstrated effect of s.  181  in
        the  case  at  bar is to subject  Mr.  Zundel  to
        criminal  conviction  and potential  imprisonment
        because  of words he published.  In the  face  of
        this  reality,  it  is undeniable  that  s.  181,
        whatever   its   purpose,  has  the   effect   of
        restricting freedom of expression.

66    In  the  present case, the purpose of  the  Board's
order,  while intended to remedy the discrimination  with
respect  to  services  available to  the  public,  is  to
prevent the respondent from publicly espousing his  views
while he is employed as a public school teacher.  On  its
face,  the  purpose  of  the order  is  to  restrict  the
respondent's  expression; it has a direct effect  on  the
respondent's  freedom of expression, and so  violates  s.
2(b) of the Charter.

D.  Freedom of Religion

67    The  respondent's expression in this case is  of  a
religious  nature.   He,  therefore,  submits  that   his
freedom  of  religion has also been infringed.   I  turn,
then, to this contention.

68   Section 2(a) of the Charter provides:

           2.   Everyone  has  the following  fundamental
freedoms:

           (a) freedom of conscience and religion;

69    The appellant Human Rights Commission concedes that
the  Board's order infringes the respondent's freedom  of
religion, as embodied in s. 2(a) of the Charter, and  the
appellant  Attis does not raise the issue.  The appellant
Canadian Jewish Congress, however, submits that the order
does not infringe the respondent's s. 2(a) freedoms.

70    In arguing that the order does infringe his freedom
of religion, the respondent submits that the Act is being
used  as  a  sword to punish individuals  for  expressing
their  discriminating  religious beliefs.   He  maintains
that  "[a]ll  of the invective and hyperbole about  anti-
Semitism  is  really  a  smoke  screen  for  imposing  an
officially  sanctioned religious belief on society  as  a
whole which is not the function of courts or Human Rights
Tribunals  in  a  free  society".   In  this  case,   the
respondent's  freedom of religion is  manifested  in  his
writings, statements and publications.  These, he argues,
constitute  "thoroughly  honest religious  statement[s]",
and  adds that it is not the role of this Court to decide
what any particular religion believes.

71    I  agree with his statement about the role  of  the
Court.   In  R. v. Jones, [1986] 2 S.C.R. 284,  I  stated
that,  assuming  the  sincerity of an asserted  religious
belief,  it  was  not open to the Court to  question  its
validity.   It  was sufficient to trigger  constitutional
scrutiny  if the effect of the impugned act or  provision
interfered  with an individual's religious activities  or
convictions.

72    The essence of freedom of religion was encapsulated
in  the following passage from Dickson J.'s reasons in R.
v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295, at p. 336:

            A   truly  free  society  is  one  which  can
        accommodate a wide variety of beliefs,  diversity
        of  tastes  and pursuits, customs  and  codes  of
        conduct.   A  free society is one which  aims  at
        equality   with  respect  to  the  enjoyment   of
        fundamental  freedoms and I say this without  any
        reliance upon s. 15 of the Charter.  Freedom must
        surely  be  founded in respect for  the  inherent
        dignity  and the inviolable rights of  the  human
        person.  The essence of the concept of freedom of
        religion is the right to entertain such religious
        beliefs as a person chooses, the right to declare
        religious  beliefs  openly and  without  fear  of
        hindrance or reprisal, and the right to  manifest
        religious  belief by worship and practice  or  by
        teaching and dissemination.

Indeed,  this Court has affirmed that freedom of religion
ensures that every individual must be free to hold and to
manifest  without  State interference those  beliefs  and
opinions  dictated by one's conscience.  This freedom  is
not unlimited, however, and is restricted by the right of
others  to  hold and to manifest beliefs and opinions  of
their  own, and to be free from injury from the  exercise
of  the  freedom  of  religion  of  others.   Freedom  of
religion  is subject to such limitations as are necessary
to protect public safety, order, health or morals and the
fundamental rights and freedoms of others.

73    This said, a broad interpretation of the right  has
been preferred, leaving competing rights to be reconciled
under the s. 1 analysis elaborated in R. v. Oakes, [1986]
1  S.C.R.  103, decided after Big M.  This  approach  was
adopted  by  the  majority in B. (R.) v.  Children's  Aid
Society  of  Metropolitan Toronto, [1995] 1  S.C.R.  315,
which  refused to formulate internal limits to the  scope
of  freedom  of religion.  Speaking for the  majority,  I
there stated, at pp. 383-84:

           This  Court  has consistently  refrained  from
        formulating  internal  limits  to  the  scope  of
        freedom   of   religion  in   cases   where   the
        constitutionality  of  a legislative  scheme  was
        raised;  it rather opted to balance the competing
        rights under s. 1 of the Charter; . . .

           In my view, it appears sounder to leave to the
        state  the  burden of justifying the restrictions
        it  has  chosen.   Any  ambiguity  or  hesitation
        should   be  resolved  in  favour  of  individual
        rights.   Not  only is this consistent  with  the
        broad   and  liberal  interpretation  of   rights
        favoured  by this Court, but s. 1 is a much  more
        flexible  tool  with which to  balance  competing
        rights  than s. 2(a).  As Dickson C.J. stated  in
        R.  v. Keegstra, supra, while it is not logically
        necessary  to rule out internal limits within  s.
        2, it is analytically practical to do so. . . .

74    This  mode  of approach is analytically  preferable
because  it gives the broadest possible scope to judicial
review  under  the Charter (see B.(R.), at p.  389),  and
provides  a  more comprehensive method of  assessing  the
relevant  conflicting  values.   It  is  right  to   say,
however,  that the first sentence in the above  quotation
may  appear  to be at odds with the approach  adopted  in
Young  v.  Young, [1993] 4 S.C.R. 3, where the Court  was
called upon to assess the application of the principle of
court orders given in the best interests of the child  as
they affected the religious views and practices of a non-
custodial  parent.  In that case, it  seems  to  me,  the
interference with the non-custodial parent's  rights  was
at  best  tangential.  Under the Divorce Act,  Parliament
has  set up a scheme intended to be in the best interests
of  a  child which gives the courts discretion to  assign
custody to one (or both) of the parents and to permit the
non-custodial  parent access to the child.   Exercise  of
these  discretionary powers are as noted based solely  on
the  best interests of the child and can be subjected  to
conditions  to ensure that end, including in  appropriate
circumstances  preventing  the  imposition  of  religious
views of the non-custodial parent on the child, which was
the  issue in Young.  Unless one is prepared to  question
the  entire scheme devised by Parliament, it is difficult
to  see how the proper exercise of the discretion can  be
attacked  on  the basis of visitation "rights"  that  are
granted solely on the basis of the best interests of  the
child.   It  is true that the judgments of L'Heureux-Dubé
and McLachlin JJ. also placed reliance on the factors set
forth  in  Big  M, but these are really  an  earlier  and
simpler formulation of values later incorporated  in  the
more complex s. 1 formulation devised in Oakes.  So while
there  may  be a difference in form, there is  really  no
conflict  between Young and B. (R.).  It  is  noteworthy,
however, that under B. (R.), consistently with Young,  it
may  not  always be necessary to have resort to the  full
panoply  of  tests elaborated in Oakes.  At page  385  of
that case, I stated:

            This   is   not  to  say  that  an  elaborate
        examination of the criteria established in R.  v.
        Oakes,  supra,  will always  be  necessary.   The
        effect  on  religious beliefs will  often  be  so
        insubstantial, having regard to the nature of the
        legislation, that Charter concerns will obviously
        be overridden.

75   What has to be kept in mind is that all rights under
the  Charter  are  guaranteed by  s.  1  subject  to  the
limitations there described.  The important thing is that
the  competing  values of a free and  democratic  society
have to be adequately weighed in the appropriate context.
I   need   not   further  explore  when  or  under   what
circumstances   a   more  peremptory   process   may   be
justifiable.  I do refer again to Dickson C.J.'s  remarks
in  Keegstra that while it is not logically necessary  to
rule  out  internal limits within s. 2 it is analytically
practical to do so.  That approach seems to me compelling
in the present case where the respondent's claim is to  a
serious infringement of his rights of expression  and  of
religion  in  a  context requiring a detailed  contextual
analysis.  In these circumstances, there can be no  doubt
that  the detailed s. 1 analytical approach developed  by
this  Court  provides a more practical and  comprehensive
mechanism,  involving review of a whole range of  factors
for   the  assessment  of  competing  interests  and  the
imposition  of  restrictions upon individual  rights  and
freedoms.

76   I conclude that the order infringes the respondent's
freedom  of expression and freedom of religion,  and  the
issue,  then, is whether this infringement is justifiable
under s. 1 of the Charter.

E.  Section 1 of the Charter

77   In Oakes, supra, at p. 136, Dickson C.J. stated that
in determining whether Charter rights and freedoms should
be limited,

        [t]he  Court  must be guided by  the  values  and
        principles  essential to a  free  and  democratic
        society  which I believe embody, to  name  but  a
        few,  respect  for the inherent  dignity  of  the
        human  person, commitment to social  justice  and
        equality,  accommodation of  a  wide  variety  of
        beliefs, respect for cultural and group identity,
        and  faith  in  social and political institutions
        which  enhance  the participation of  individuals
        and groups in society.  The underlying values and
        principles  of a free and democratic society  are
        the genesis of the rights and freedoms guaranteed
        by  the Charter and the ultimate standard against
        which  a  limit  on a right or  freedom  must  be
        shown,  despite its effect, to be reasonable  and
        demonstrably justified.

Ultimately, any attempt to determine whether the order is
a justifiable infringement of the respondent's freedom of
expression  and of religion must involve  a  weighing  of
these   essential  values  and  principles,  namely   the
accommodation  of a wide variety of beliefs  on  the  one
hand  and  respect for cultural and group  identity,  and
faith   in   social   institutions   that   enhance   the
participation of individuals and respect for the inherent
dignity of the human person on the other.

78    The factors to be considered in applying the  Oakes
test have frequently been reviewed, most recently in RJR-
MacDonald  Inc.  v. Canada (Attorney General),  [1995]  3
S.C.R.  199, where both the majority and minority  agreed
that   an   approach  involving  a  "formalistic   `test'
uniformly  applicable  in  all  circumstances"  must   be
eschewed.   Rather,  the  Oakes test  should  be  applied
flexibly,  so  as  to  achieve a proper  balance  between
individual  rights and community needs.   In  undertaking
this  task, courts must take into account both the nature
of  the infringed right and the specific values the state
relies  on to justify the infringement.  This involves  a
close  attention  to  context.   McLachlin  J.  in   RJR-
MacDonald, supra, reiterated her statement in  Rocket  v.
Royal  College  of Dental Surgeons of Ontario,  [1990]  2
S.C.R.  232, at pp. 246-47, that conflicting values  must
be  placed  in  their  factual and  social  context  when
undertaking a s. 1 analysis.

79     In   addressing  this  contextual  analysis,   the
appellant Human Rights Commission invited us to  consider
three  contexts it deemed relevant to such  an  analysis,
namely,  the educational context, the employment context,
and the anti-Semitism context.  I shall consider these in
turn.

80     In  relation  to  the  educational  context,   the
Commission  discussed  modern  educational  theory  which
stresses  "the  inculcation of those  fundamental  values
upon  which  a  democratic polity  rests"  as  a  central
function  of  a public school.  It also referred  to  the
Government of New Brunswick's Ministerial Statement,  the
guiding principles of which include the following:   that
every  individual has a right to be educated in a  school
system that is free from bias, prejudice and intolerance;
that any manifestation of discrimination on the basis  of
gender,  race,  ethnicity, culture  or  religion  by  any
persons  in  the public school system is not  acceptable;
and  that school programs and practices promote students'
self-esteem and assist in developing a pride in one's own
culture and heritage.

81    These  considerations  seem  to  me  to  be  highly
relevant.  In discussing the interest of the State in the
education of its citizens in Jones, supra, at p.  296,  I
stated  that  "[w]hether one views it from  an  economic,
social, cultural or civic point of view, the education of
the young is critically important in our society".  And I
adopted  at p. 297 much of what was said in the  American
case  of Brown v. Board of Education of Topeka, 347  U.S.
483 (1954), in the following passage, at p. 493:

           Today, education is perhaps the most important
        function of state and local governments.  .  .  .
        It  is  the  very foundation of good citizenship.
        Today  it  is a principal instrument in awakening
        the  child  to cultural values, in preparing  him
        for  later professional training, and in  helping
        him to adjust normally to his environment.

The  importance  of  the provision of  education  by  the
state,  and  the Government of New Brunswick's commitment
to eradicating discrimination in the public school system
must  inform  our  constitutional review  of  the  order,
which,   it  will  be  remembered,  was  made  to  remedy
practices in the provision of educational services  found
to be discriminatory.

82    There  can be no doubt that the attempt  to  foster
equality,   respect  and  tolerance   in   the   Canadian
educational   system  is  a  laudable  goal.    But   the
additional driving factor in this case is the  nature  of
the  educational services in question:   we  are  dealing
here  with  the education of young children.   While  the
importance  of education of all ages is acknowledged,  of
principal  importance is the education of the young.   As
stated in Brown, supra, education awakens children to the
values  a society hopes to foster and to nurture.   Young
children   are  especially  vulnerable  to  the  messages
conveyed by their teachers.  They are less likely to make
an  intellectual distinction between comments  a  teacher
makes  in the school and those the teacher makes  outside
the  school.   They are, therefore, more likely  to  feel
threatened  and isolated by a teacher who makes  comments
that  denigrate personal characteristics of  a  group  to
which  they  belong.  Furthermore, they are  unlikely  to
distinguish between falsehoods and truth and more  likely
to  accept  derogatory views espoused by a teacher.   The
importance  of ensuring an equal and discrimination  free
educational  environment, and the perception of  fairness
and  tolerance  in  the classroom are  paramount  in  the
education  of  young children.  This helps  foster  self-
respect and acceptance by others.

83    It  is  this  context that  must  be  invoked  when
balancing the respondent's freedom to make discriminatory
statements  against  the right of  the  children  in  the
School  Board "to be educated in a school system that  is
free  from bias, prejudice and intolerance", a right that
is underscored by s. 5(1) of the Act and entrenched in s.
15 of the Charter.

84    The  second  context,  the employment  context,  is
relevant to the extent that the State, as employer, has a
duty to ensure that the fulfilment of public functions is
undertaken  in  a  manner that does not undermine  public
trust  and confidence.  The appellant Commission  submits
that the "standard of behaviour which a teacher must meet
is greater than the minimum standard of conduct otherwise
tolerated,  given  the  public responsibilities  which  a
teacher  must  fulfil  and  the  expectations  which  the
community holds for the educational system".

85    More  than  being solely employees  of  the  State,
teachers are also employees of a particular school board.
As  such,  a teacher's freedoms must be balanced  against
the  right of school boards to operate according to their
own  mandates.   Recalling  New  Brunswick's  Ministerial
Statement,  this  means  that  the  interest  of   School
District  No.  15  to provide a school system  free  from
bias,  prejudice and intolerance must be balanced against
the  respondent's right to manifest his religious beliefs
and express his particular views.

86    The  final context the Commission has asked  us  to
consider is the anti-Semitism context.  The gist  of  its
submission is expounded in the following passage from its
factum:

        After  Auschwitz  it is simply  not  feasible  to
        consider the constitutional values of freedom  of
        expression  and freedom of religion  where  these
        are  proclaimed  to shield anti-Semitic  conduct,
        without  contemplating  the  centrality  of  that
        ideology  to the scourge of death and destruction
        which  swept across Europe during the era of  the
        Third Reich.

In  assessing this submission, it is helpful to refer  to
R.  v.  Edwards Books and Art Ltd., [1986] 2 S.C.R.  713,
where Dickson C.J. stated, at p. 779:

        In  interpreting  and  applying  the  Charter   I
        believe  that  the  courts must  be  cautious  to
        ensure   that  it  does  not  simply  become   an
        instrument of better situated individuals to roll
        back  legislation  which has as  its  object  the
        improvement  of the condition of less  advantaged
        persons.

This  direction is especially applicable in this  appeal.
The  order  rendered by the Board was made to remedy  the
discrimination it found to be manifest within the  public
school  system  of New Brunswick that targeted  Jews,  an
historically   disadvantaged  group  that   has   endured
persecution  on  the largest scale.  The respondent  must
not  be permitted to use the Charter as an instrument  to
"roll  back"  advances  made by  Jewish  persons  against
discrimination.

87    This  context relates to one further  consideration
that  must inform a contextual approach under s.  1.   It
must  be  recognized  that human  rights  tribunals  have
played  a leading role in the development of the  law  of
discrimination,   and   this   is   reflected   in    the
jurisprudence  of this Court both in the  area  of  human
rights  and under the Charter.  This Court should proceed
under  s. 1 with recognition of the sensitivity of  human
rights   tribunals  in  this  area,   and   permit   such
recognition to inform this Court's determination of  what
constitutes a justifiable infringement of the Charter.

88     In   RJR-MacDonald,  supra,  I  noted  that   "the
evidentiary   requirements   under   s.   1   will   vary
substantially  depending upon  both  the  nature  of  the
legislation  and the nature of the right  infringed"  (p.
272).   The  next  consideration under a s.  1  analysis,
then,  is  the  nature  of the  legislation  and  of  the
right(s)  infringed.  To this end, McLachlin J.  in  RJR-
MacDonald stated that "greater deference to Parliament or
the  Legislature  may  be  appropriate  if  the  law   is
concerned  with  the competing rights  between  different
sectors  of  society than if it is a contest between  the
individual and the state" (p. 331).  In this appeal,  the
Board's  order,  like  its  constituent  legislation,  is
concerned  with  the  competing  interests  of  different
individuals  and attempts to balance the  eradication  of
discrimination  against the rights of other  individuals.
In  fact,  in  making  the  order,  the  Board  carefully
considered  the effect on the respondent, and  determined
that  it was a necessary consequence in providing  relief
from  the discrimination.  In this appeal, the order made
pursuant  to the finding of discrimination reflects  that
balancing.  The Board balanced the respondent's  freedoms
against  the  ability of the School Board  to  provide  a
discrimination-free environment and against the interests
of Jewish students.

89   The nature of the rights allegedly infringed in this
case  is  of equal significance.  In my reasons  in  RJR-
MacDonald,  supra,  I stated that the  "core"  values  of
freedom  of expression include "the search for political,
artistic   and   scientific  truth,  the  protection   of
individual   autonomy  and  self-development,   and   the
promotion  of  public  participation  in  the  democratic
process" (p. 280).  This Court has subjected state action
limiting  such values to "a searching degree of scrutiny"
(p. 281).  This standard of scrutiny is not to be applied
in  all  cases, however, and when the form of  expression
allegedly impinged lies further from the "core" values of
freedom  of expression, a lower standard of justification
under s. 1 has been applied.

90     In  Keegstra,  supra,  at  p.  764,  Dickson  C.J.
recognized  that some forms of expression  can  undermine
our  commitment  to  democracy  and  found  that  "[h]ate
propaganda works in just such a way, arguing as  it  does
for  a  society  in  which  the  democratic  process   is
subverted and individuals are denied respect and  dignity
simply  because  of racial or religious characteristics".
Hate  propaganda, he held, strays some distance from  the
core  values  of freedom of expression and, consequently,
restrictions on expression of that kind might  be  easier
to   justify  than  other  infringements  on  freedom  of
expression.  He stated, at p. 765:

           I am very reluctant to attach anything but the
        highest  importance  to  expression  relevant  to
        political  matters.  But given  the  unparalleled
        vigour with which hate propaganda repudiates  and
        undermines  democratic values, and in  particular
        its  condemnation of the view that  all  citizens
        need be treated with equal respect and dignity so
        as to make participation in the political process
        meaningful, I am unable to see the protection  of
        such  expression  as integral to  the  democratic
        ideal so central to the s. 2(b) rationale.

Dickson C.J. concluded that expression that promotes  the
hatred of identifiable groups is of limited importance as
measured against freedom of expression values.

91    Similarly, any restrictions imposed  by  the  order
upon the respondent's freedom of expression should, in my
view,  attract a less "searching degree of scrutiny"  and
be  easier  to justify under s. 1.  The Board  determined
that  the  primary  purpose of the respondent's  form  of
expression  is  "to  attack the truthfulness,  integrity,
dignity  and  motives of Jewish persons" (p.  73).   This
Court  has  held  that there is very little  chance  that
expression  that promotes hatred against an  identifiable
group  is  true.  Such expression silences the  views  of
those  in  the target group and thereby hinders the  free
exchange of ideas feeding our search for political truth.
Ours  is  a  free  society built  upon  a  foundation  of
diversity  of views; it is also a society that  seeks  to
accommodate   this  diversity  to  the  greatest   extent
possible.   Such accommodation reflects an  adherence  to
the  principle  of equality, valuing all divergent  views
equally  and  recognizing the contribution  that  a  wide
range  of  beliefs  may  make in the  search  for  truth.
However,  to  give protection to views  that  attack  and
condemn the views, beliefs and practices of others is  to
undermine  the  principle that all  views  deserve  equal
protection and muzzles the voice of truth.

92   In relation to the protection of individual autonomy
and  self-development, a value said to underlie s.  2(b),
expression that incites contempt for Jewish people on the
basis of an "international Jewish conspiracy" hinders the
ability  of  Jewish people to develop a  sense  of  self-
identity  and belonging.  Again, I refer to the words  of
Dickson  C.J. in Keegstra, supra, who said of the message
of hate propaganda, at p. 763:

        The  extent to which the unhindered promotion  of
        this message furthers free expression values must
        therefore  be tempered in so far as it  advocates
        with   inordinate  vitriol  an  intolerance   and
        prejudice which view as execrable the process  of
        individual self-development and human flourishing
        among all members of society.

93    The  final "core" value said to underlie or justify
the  protection  accorded by s. 2(b) is participation  in
the  democratic process.  The respondent's expression  is
expression  that  undermines  democratic  values  in  its
condemnation  of Jews and the Jewish faith.   It  impedes
meaningful participation in social and political decision-
making  by  Jews,  an  end  wholly  antithetical  to  the
democratic   process.   The  expression  sought   to   be
protected  in this case is, in my view, at best tenuously
connected to freedom of expression values.

94    In  relation to freedom of religion, any  religious
belief  that denigrates and defames the religious beliefs
of  others erodes the very basis of the guarantee  in  s.
2(a) -- a basis that guarantees that every individual  is
free  to  hold  and to manifest the beliefs  dictated  by
one's conscience.  The respondent's religious views serve
to  deny Jews respect for dignity and equality said to be
among   the  fundamental  guiding  values  of   a   court
undertaking a s. 1 analysis.  Where the manifestations of
an  individual's  right or freedom are incompatible  with
the  very  values sought to be upheld in the  process  of
undertaking a s. 1 analysis, then, an attenuated level of
s. 1 justification is appropriate.

95   With this background, I turn to s. 1 of the Charter.
This  Court in Oakes, supra, developed an approach  under
s.  1  that  requires  two things  be  established:   the
impugned  state action must have an objective of pressing
and substantial concern in a free and democratic society;
and  there  must be proportionality between the objective
and the impugned measure.

96    I  have  already discussed the  end  sought  to  be
achieved  by  the order, that is to address the  specific
steps  to  be taken to remedy the discrimination  in  the
School  Board  created through the respondent's  writings
and  publications.   More generally, the  order  aims  at
remedying  the discrimination found to have poisoned  the
educational environment in the School Board.

97    In  Canada  (Human  Rights Commission)  v.  Taylor,
[1990]  3  S.C.R.  892,  Dickson  C.J.  found  that   the
objective  of  promoting equal opportunity unhindered  by
discriminatory  practices based on race or  religion  was
pressing and substantial.  In arriving at his conclusion,
he   reviewed  the  harms caused by messages  of  hatred,
including "substantial psychological distress",  pressure
to  renounce  cultural differences,  and  loss  of  self-
esteem.   As  well,  he noted that  the  result  of  such
messages  may  be  to increase discrimination.   He  then
referred  to the international community's commitment  to
the  eradication  of discrimination.   To  this  end,  he
reviewed the international conventions to which Canada is
a  signatory and concluded (at p. 920) that they  exhibit
that the commitment of the international community to the
eradication of discrimination extends to prohibiting  the
dissemination  of  ideas  based on  racial  or  religious
superiority.  Finally, he stated that ss. 15  and  27  of
the   Charter,  in  which  the  values  of  equality  and
multiculturalism   are   enshrined,    strengthen     the
"substantial  weight" to be given  to  the  objective  of
preventing  the  harmful  effects  associated  with  hate
propaganda.

98    In  my view, all the above factors are relevant  in
assessing the importance of the objective of the impugned
order.   In  the first place, they assert the fundamental
commitment   of  the  international  community   to   the
eradication of discrimination in general. Secondly,  they
acknowledge the pernicious effects associated  with  hate
propaganda, and more specifically, anti-Semitic messages,
that   undermine   basic  democratic   values   and   are
antithetical  to the "core" values of the  Charter.   The
Board's order asserts a commitment to the eradication  of
discrimination  in the provision of educational  services
to  the  public.  Based upon the jurisprudence,  Canada's
international obligations and the values constitutionally
entrenched,  the  objective  of  the  impugned  order  is
clearly "pressing and substantial".

99     The  second  part  of  the  s.  1  analysis,   the
"proportionality  test"  involves  three  determinations:
that  the measure adopted is rationally connected to  the
objective (rational connection); that the measure  impair
as  little  as possible the right or freedom in  question
(minimal  impairment); and that there be  proportionality
between the effects of the measure and the objective.

        (1)  Rational ConnectionRational Connection

100   As noted by Ryan J. in the Court of Appeal, the Act
in  question  is  conciliatory in  nature  and  makes  no
provision for criminal sanctions.  It is, therefore, well
suited  to  encourage reform of invidious discrimination.
The  Board  focused on providing relief in  crafting  its
order, and sought, as much as possible, to avoid punitive
effects.   The Board made a finding that s. 5(1)  of  the
Act  "guarantees individuals freedom from  discrimination
in  educational  services available to the  public".   In
order   to   ensure  a  discrimination-free   educational
environment, the school environment must be one where all
are  treated  equally  and all are  encouraged  to  fully
participate.   Teachers must ensure  that  their  conduct
transmits  this message of equality to the  community  at
large,  and are expected to maintain these high standards
both in and out of the classroom.

101   The  Board  held that the fact that the  respondent
publicly made anti-Semitic statements contributed to  the
"poisoned environment" in the school system, and that  it
was  reasonable  to  anticipate that his  statements  and
writings had influenced the anti-Semitic sentiment in the
schools.   As to the standard of proof required under  s.
1,  McLachlin  J., in RJR-MacDonald, supra,  stated  that
proof  to  the standard of science was not required,  and
accepted  the  civil standard of proof on  a  balance  of
probabilities.    In  order  to  establish   a   rational
connection   between  the  impugned   measure   and   its
objective,  scientific evidence need not be  established.
Similarly, in R. v. Butler, [1992] 1 S.C.R. 452,  Sopinka
J.  accepted that if it was "reasonable to presume"  that
there was a causal relationship between the harm and  the
expression in question, then this was sufficient where  a
direct  link could not be established.  In this  case,  I
think   it   is  sufficient  that  the  Board  found   it
"reasonable  to  anticipate"  that  there  was  a  causal
relationship  between the respondent's  conduct  and  the
harm  --  the  poisoned educational environment.   In  my
view,  this  finding  must depend upon  the  respondent's
maintaining a teaching position.  The reason that  it  is
possible   to   "reasonably   anticipate"   the    causal
relationship in this appeal is because of the significant
influence  teachers  exert  on  their  students  and  the
stature  associated with the role of a  teacher.   It  is
thus necessary to remove the respondent from his teaching
position  to  ensure that no influence of  this  kind  is
exerted  by him upon his students and to ensure that  the
educational services are discrimination-free.  The  order
seeks to remove the respondent from his teaching position
through  clauses  2(a), (b) and (c).  These  clauses  are
rationally connected to the objective of the order.

102  My concerns lie with clause 2(d) of the order, which
I reproduce below:

        (2)  That the School Board:

                         . . .

            (d)   terminate Malcolm Ross' employment with
          the  School Board immediately if, at  any  time
          during  the eighteen month leave of absence  or
          if  at any time during his employment in a non-
          teaching position, he:

                                                      (i)
            publishes  or  writes  for  the  purpose   of
            publication, anything that mentions a  Jewish
            or  Zionist conspiracy, or attacks  followers
            of the Jewish religion, or

                                                     (ii)
            publishes,  sells or distributes any  of  the
            following    publications,    directly     or
            indirectly:

                                              -   Web  of
            Deceit

                                             -  The  Real
            Holocaust (The Attack on Unborn Children  and
            Life   Itself)                              -
            The  Real  Holocaust (The  Attack  on  Unborn
            Children and Life Itself)

              - Spectre of Power

                                                        -
            Christianity   vs.  Judeo-Christianity   (The
            Battle for Truth)

I  will  deal with that part of the order under  "minimal
impairment".

        (2)  Minimal Impairment

103   In  RJR-MacDonald, supra, at p. 342,  McLachlin  J.
reasoned that an impairment must be minimal to the extent
that it impairs the right no more than is necessary.  She
stated:

        The tailoring process seldom admits of perfection
        and  the  courts must accord some leeway  to  the
        legislator.  If the law falls within a  range  of
        reasonable alternatives, the courts will not find
        it  overbroad merely because they can conceive of
        an   alternative   which  might   better   tailor
        objective to infringement. . . .

104   In arriving at its order, the Board considered  the
alternatives available to remedy the discrimination.   It
concluded  that  the removal of the respondent  from  the
classroom was "[t]he only viable solution" (p.  89).   In
the  course of examining alternative solutions, the Board
found  that the situation could not be corrected  through
an   apology  and  renunciation  of  his  views  by   the
respondent.  Nor could it be corrected through  continual
monitoring  of the respondent's classroom, as  the  Board
considered the influence of a teacher to be "so much more
complex  than  the formal content of any  subject  matter
taught  by the teacher" (p. 89).  The Board also rejected
the  exclusion  of Jewish children from the  respondent's
class   or   school,   emphasizing  the   importance   of
accessibility  to schools within a public school  system.
Finally,  it  concluded that the situation could  not  be
dealt  with  through monetary compensation to  Attis  for
pain and suffering.

105  In making its order, the Board stated (at p. 88):

           This  Board of Inquiry has carefully  reviewed
        the  writings and statements of Malcolm Ross  and
        his  reaction to directions from the School Board
        to  refrain  from such writings and publications.
        Malcolm  Ross'  commitment  to  his  beliefs  and
        intent to publicly proclaim these beliefs through
        his writings, even following clear direction from
        the School Board, is obvious.

The  order,  in clauses 2(a), (b) and (c), was  carefully
tailored  to accomplish its specific objective, i.e.  "to
remedy the discriminatory situation in School District 15
created  through the writings and publications of Malcolm
Ross" (p. 85).  Any punitive effect is merely incidental.
In  my  view, clauses 2(a), (b) and (c) minimally  impair
the  respondent's freedom of expression  and  freedom  of
religion.  In relation to clause 2(d), however, I  arrive
at a different conclusion.

106  The Board found (at p. 89) that:

        Section   5   [of   the  Act]   strives   for   a
        discrimination-free  environment  in  the  school
        system so that everyone within School District 15
        can   enjoy   the  public  educational   services
        provided    by    the   School   Board    without
        discrimination.

          Malcolm Ross, by his writings and his continued
        attacks,  has impaired his ability as  a  teacher
        and  cannot be allowed to remain in that position
        if a discrimination-free environment is to exist.

The  Board, on the basis of the evidence before it, found
that  the  respondent had to be moved out of his teaching
position:   by  occupying a position of great  influence,
his  presence contributed to a discriminatory educational
environment.    The   Board  did  not   find   that   the
respondent's  presence in a non-teaching  position  would
compromise  the ability of the School Board to  create  a
discrimination-free environment.  Indeed their order made
provision  for the possibility that the respondent  would
occupy a non-teaching position.

107   It  may  be  that  the continued  presence  of  the
respondent  in  the  School  Board  produces  a  residual
poisoned effect, even after he is removed from a teaching
position,  and  it may be that this is what  clause  2(d)
seeks  to  address.  Given the respondent's high  profile
and  long teaching career, I acknowledge that the problem
in  the  School  District could  remain  for  some  time.
However,  the  evidence does not support  the  conclusion
that the residual poisoned effect would last indefinitely
once  Ross  has been placed in a non-teaching role.   For
that  reason,  clause 2(d) which imposes a permanent  ban
does not minimally impair the respondent's constitutional
freedoms.   Clause  2(d)  is  not  justified   under   s.
1.inimally   impair   the   respondent's   constitutional
freedoms.  Clause 2(d) is not justified under s. 1.

         (3) Proportionality Between Effects of Order and
Objective

108  The deleterious effects of clauses 2(a), (b) and (c)
of  the order upon the respondent's freedom of expression
and  freedom  of  religion  are  limited  to  the  extent
necessary  to  the  attainment  of  their  purpose.   The
respondent  is free to exercise his fundamental  freedoms
in  a manner unrestricted by this order, upon leaving his
teaching  position.   These  clauses  only  restrict  the
respondent's  freedoms to the extent that  they  prohibit
the respondent from teaching, based upon the exercise  of
his  freedom of expression and freedom of religion.   The
respondent  is  not  prevented from  holding  a  position
within  the  School  Board  if  a  non-teaching  position
becomes available; furthermore, he is to be offered a non-
teaching position if it becomes available on terms and at
a  salary consistent with the position.  In my view,  the
objectives of preventing and remedying the discrimination
in  the  provision of educational services to the  public
outweigh  any negative effects on the respondent produced
by these clauses.

109   Given  my  conclusion that clause  2(d)  fails  the
minimal  impairment branch of the s. 1  analysis,  it  is
unnecessary  for  me to consider it in  relation  to  the
proportionality branch.  My conclusion, with  respect  to
s.  1, is that clauses 2(a), (b) and (c) of the order are
a  justified infringement upon the freedom of  expression
and the freedom of religion of the respondent.

110  With respect to clause 2(d) of the order, this is an
appropriate  case  in  which  to  apply  severance.   The
principle of severance may be applied to the order of  an
administrative  tribunal  on  the  same  basis  that  the
Charter applies to the order in the first place; any part
of  the  order that is inconsistent with the  Charter  is
beyond the jurisdiction of the Board and cannot stand.  I
would  note, however, that severance may not be available
in  every  case  involving  an administrative  tribunal's
order.  The degree of tailoring of a tribunal's order  to
the   individual  case  requires  that  it   be   clearly
established  that  the part of the  order  sought  to  be
severed  does  not  interfere with the operation  of  the
parts  that remain.  In this case, clause 2(d) is not  so
inextricably bound up with the valid clauses in 2(a), (b)
and (c) that what remains will not independently survive.
Thus,  clause 2(d) will be severed from the remainder  of
the  order  on  the basis that it does not  constitute  a
justifiable infringement of the Charter and is  therefore
in excess of the Board's jurisdiction.

IV-  Disposition

111   In  my  assessment, the evidence reveals  that  the
School Board discriminated within the meaning of s.  5(1)
of   the   Act,  with  respect  to  educational  services
available to the public.  The continued employment of the
respondent  contributed to an invidiously  discriminatory
or  "poisoned" educational environment, as established by
the   evidence  and  the  Board's  finding  that  it  was
"reasonable to anticipate" that the respondent's writings
and statements influenced the anti-Semitic sentiment.  In
my  opinion,  this finding is necessarily linked  to  the
finding  that  the  respondent's statements  are  "highly
public"  and that he is a notorious anti-Semite, as  well
as  the supported view that public school teachers assume
a position of influence and trust over their students and
must be seen to be impartial and tolerant.

112   I have concluded that clauses 2(a), (b) and (c)  of
the Board of Inquiry's order are properly made within the
Board's jurisdiction; any resulting infringement  of  the
respondent's freedom of expression or freedom of religion
is  a justifiable infringement.  Clause 2(d) of the order
is  not  a  justifiable infringement of the  respondent's
fundamental freedoms and is accordingly struck  from  the
remainder of the order.

113   I  would allow the appeal, reverse the judgment  of
the Court of Appeal and restore clauses 2(a), (b) and (c)
of the order, with costs to the appellant Attis.

        Appeal allowed with costs to the appellant Attis.

         Solicitors  for  the  appellant  Attis:   Blake,
Cassels & Graydon, Toronto; Joseph E. Weir, Moncton.

         Solicitor  for  the appellant the  Human  Rights
Commission:  Thomas S. Kuttner, Fredericton.

         Solicitors for the appellant the Canadian Jewish
Congress:  Blake, Cassels & Graydon, Toronto.

         Solicitor  for the respondent Ross:  Douglas  H.
Christie, Victoria.

        Solicitor for the intervener the Attorney General
of  British  Columbia:   The  Ministry  of  the  Attorney
General, Victoria.

         Solicitors  for the intervener  the  League  for
Human  Rights  of B'Nai Brith Canada:  Dale,  Streiman  &
Kurz, Brampton; David Matas, Winnipeg.

         Solicitors for the intervener the Canadian Civil
Liberties  Association:   Greenspan,  Rosenberg  &  Buhr,
Toronto.

          Solicitors  for  the  intervener  the  Canadian
Association  of Statutory Human Rights Agencies:   Arvay,
Finlay, Victoria.

--------------B8B7102E2B--



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