Shofar FTP Archive File: people/r/ross.malcolm/legal/ross.scc-1996
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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