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	Professional Freedom of Expression Revisited
	by Bernard LeBlanc
	June 2006 - Vol 7 No 9

	Last month’s newsletter dealt with the question of limitations on professional freedom of speech in the context of practicing one’s profession. While most expect that professionals can be disciplined for what they say in the course of practicing, a recurring question is whether there are limits to what professionals can say outside of the workplace. A pair of cases affirms the principle that there are indeed limitations. In Kempling v. British Columbia College of Teachers, [2005] BC.J. No. 1288 (B.C.C.A.) (application for leave to appeal to S.C.C. denied), a teacher and secondary school councilor published an article and several letters to the editor in a local newspaper expressing his views about homosexuality and gay rights. In the article and the letters, Kempling associated homosexuals with immorality, abnormality, perversion and promiscuity. A Hearing Panel of the British Columbia College of Teachers found Kempling to have engaged in conduct unbecoming a member of the College and suspended his teaching certificate for one month. The Panel determined that his opinions were discriminatory and that Kempling failed to adhere to the core values of the education system. Kempling appealed to the British Columbia Supreme Court and later to the Court of Appeal, but both courts dismissed his appeals. Kempling argued that his rights under the Canadian Charter of Rights and Freedoms were infringed. Basically, he argued that his rights to freedom of association, expression and equality protected his right to speak out on these issues. Interestingly, while the Court of Appeal did find that the one month suspension of Kempling’s teacher’s certificate violated his right to freedom of expression, the violation was justified under section 1 of the Charter, which places a limit on constitutional rights if those limits can be “demonstrably justified in a free and democratic society”. The Hearing Panel quoted an earlier case that the Supreme Court of Canada had previously cited with approval: “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 education system.” In the second case, Whatcott v. Saskatchewan Association of Licensed Practical Nurses, [2006] S.J. No. 449 (currently under appeal), Whatcott, a licensed practical nurse was alleged to have engaged in professional misconduct for actions that took place outside Regina’s Planned Parenthood Sexual Health Centre. On two afternoons, Whatcott carried a sign that stated “Planned Parenthood Aborts Babies”. He also personally addressed the clients as they entered, calling them “fornicators”. In other instances, he stated directly to the clients that “planned parenthood would give you AIDS”, and that the clinic “is the world’s biggest baby killer”. Finally, while taking photographs of some of the protestors, Whatcott may have taken pictures of some of the clients as well. Both the Discipline Committee and the Saskatchewan Court of Queen’s Bench agreed that simple picketing will not generally attract sanctions from a regulator. However, even though Whatcott was off duty, his actions caused harm to the patients of the centre. The court cited the by-laws of the Association that require members to conduct themselves in an honourable and ethical manner. Further, the code of ethics stipulated that members shall respect the physical and emotional health of patients. The court found that Whatcott breached these provisions by his conduct outside of the centre. The court went on to find that while sanctioning Whatcott breached his constitutional right to freedom of expression, the limitation on the right was justified on the basis that lying and uttering defamatory comments should be discouraged. The court therefore upheld the decision of the Discipline Committee to discipline Whatcott. These cases demonstrate that, like purely professional communication, there are limits to what professionals can say even in their private lives. However, these cases also demonstrate that before a regulator can take steps against one of its members, the conduct in question must be relatively extreme and likely cause some harm, even if it is emotional or psychological harm, to others. [Professional Practice and Liability on the Net is a monthly Internet newsletter addressing issue of interest to a wide range of professionals. Please consult with a lawyer for specific legal advice. If you wish to be removed from the list of subscribers, please simply reply to this email. If you wish to reprint this article, please provide appropriate credit, and send a copy of the publication to, Steinecke Maciura LeBlanc, 393 University Avenue, Suite 2000, Toronto M5G 1E6. Or, call 599-2200, ext. 232, or email: bleblanc@sml-law.com. Visit our website at http://www.sml-law.com. Comments and suggestions are also welcome.]



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	Professional Practice and Liability on the Net is a monthly internet newsletter addressing issues of interest to a wide range of professionals. Please consult with a lawyer for specific legal advice. If you wish to be removed from the list of subscribers, please simply reply to this email. If you wish to reprint this article, please provide appropriate credit, and send a copy of the publication to, Steinecke Maciura LeBlanc, 401 Bay Street, Suite 2308, P.O. Box 23, Toronto, ON M5H 2Y4. Or, call 599-2200, ext. 232, or email bleblanc@sml-law.com. Comments and suggestions are also welcome.