Assignment 1: Law Assignment

Submitted by Alexander Basillis

Education 525: Law and Ethics

Rhiannon Jones

October 13, 2021

The situation before us concerns the conduct of a teacher, hereinafter

referred to as ‘Bill’, located in John Deer, Alberta. In August 2020, the Government of

Alberta published guidelines for schools regarding their reopening, all of which were

to be implemented and followed in the John Deer School District. These guidelines,

hereinafter referred to as the ‘Mask Policy’, mandated that all teachers and staff, as

well as all students in grades 4 through 12, wear non-medical masks while in school,

outside of the classroom, and on school buses where it is difficult to maintain

recommended physical distancing requirements. Bill complied with the Mask Policy

but did so with malicious compliance. On his public Twitter feed, Bill published a

tweet disclosing his opposition to the Mask Policy, and purchased masks to wear at

school with anti-mask slogans. It has been alleged that Bill’s remarks on his public

twitter, as well as his anti-mask slogans worn in the classroom, inspired a student's,

hereinafter referred to as Aidan, active protest against the legitimacy of the Mask

Policy. The John Deer School District advised Bill that he would be terminated if he

did not take down his tweet and wear a different mask that does not include anti-

mask sentiments. Bill did not comply and was terminated from his position.

Bill is now challenging the constitutionality of John Deer School Board’s action

to terminate his employment under section 2(b) the Charter of Rights and Freedoms

which states that every person has the fundamental right to freedom of “thought,

belief, opinion and expression, including freedom of press and other media

communication” (Government of Canada, 2021). The intent of this paper is to

investigate the legality of Bill’s claim as part of a review for the Alberta Court of

Queen’s Bench. For a thorough analysis, the arguments for and against Bill’s claims

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will be considered, while also taking section 1 of the Charter and the Oakes test into

consideration.

Rationale

Section 2(b)

Arguments in Favour of Bill’s Claim

In arguing for Bill’s actions, we must examine the extent of his freedom of

expression on both his private social media account and in the classroom. The first

question for analysis is where or not the activity in question qualifies as expressive

content, thereby invoking section 2(b) protection. As seen in R. v. Keegstra (1990),

“when an activity conveys or attempts to convey a meaning, through a non-violent

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

word "expression" as found in the guarantee.” Regardless of Aidan’s actions, we find

that both the tweet written by Bill, as well as the messages written on Bill’s masks

worn at school convey a non-violent form of expressive content and therefore qualify

as protected speech under section 2(b) of the Charter.

In order to address the validity of Bill’s claim, we must also investigate

whether the method or location of Bill’s expression compromises his Charter

protection. As stated above, there are two locations of expression: one of which is on

Twitter and the other is in the school as Bill wore the mask bearing anti-mask

statements. In terms of social media, it can be argued that social media, in

contemporary society, is an essential tool to criticize government, policy and action

and thus, is a pillar in the democratic process. Therefore, it is “merely another

avenue for freedom of expression which allows individuals to exercise free speech”

(BCCLA, 2019).

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 The precedent presented in Saskatchewan (Human Rights Commission) v.

Whatcott case (2013) is important here, as antagonistic language or factual accuracy

alone is not enough to limit one's freedom of expression. Bill’s remarks through

various mediums would not constitute hate speech, as there is no direct target or

identifiable group. Regardless of the truth behind Bill’s expressions, it could be

concluded that it is protected under section 2 (b) as it challenges government policy

and thus, is an essential pillar in our democratic society.

Arguments Against Bill’s Claim

While section 2(b) protects an important pillar to Canada’s democratic society,

that is freedom of expression, it is not absolute; it must be balanced against

competing values. To consider the arguments against Bill, we must consider

whether or not Bill is a public servant. If so, it must be considered whether or not

Bill’s actions impede his ability to be impartial and effective in his role.

As an employee of the John Deer School District in Alberta, Canada, Bill is a

public servant and held to a higher standard than a general Canadian citizen. The

Alberta Teachers Association (2021) stipulates conduct of its members, including

teachers in the public, separate, and francophone boards upholding the Code of

Professional Conduct.

The value of impartial and effective public service is an important one, as

seen in Fraser v. Public Service Staff Relations Board (1985). Here, it was founded

that a public servant should employ a degree of restraint in their expression of views

in opposition to Government policy. Any person employed in Public Service is

deemed to know they have an obligation to exercise restraint in what they say in

opposition to any policies implemented by the government, despite the fact this is not

a requirement for citizens who work in a less visible sector of society.

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 The policy in question here is the mask mandate for schools. While it is true

that Bill follows the policy as it is set out, Bill clearly communicates his disagreement

with the policy through the masks he wears to class and his public comments made

on Twitter. While it is Bill’s right to not personally agree with the policy, section 6(c)

of the Teaching Quality Standard (Alberta Education, 2020) states “[teachers should

be] recognizing that the professional practice of a teacher is bound by standards of

conduct expected of a caring, knowledgeable, and reasonable adult entrusted with

the custody, care or education of students”. Moreover, it is suggested that “[teachers

should be] engaging in practices consistent with policies and procedures established

by school authority”.

Lastly, we should note that the Supreme Court of Canada ruled in Ross v

New Brunswick School District No. 15 (1996) that the removal of an educator from

their position was justified, as educators must be held to a higher standard of

behaviour than the average citizen; “teachers are a significant part of the unofficial

curriculum because of their status as a ‘medium’. In a very significant way the

transmission of prescribed ‘messages’ depends on the fitness of the ‘medium’.”

Despite the fact that Bill never discussed the content of his Tweets or masks with his

students, his actions jeopardized public trust in the education system as Adians

parents brought their concerns forward to the school board. As summarized by

Jones (2021), teaching is a “societal role, not a normal job” which suggests that

there should be limits to an educator's right to controversial and disruptive speech (p.

11).

Section 1

The Oakes Test

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 Section (1) of the Charter is only engaged after it has been proven that an

individual's rights and freedoms have been infringed upon. Once that is done, the

governing body must prove it was necessary and reasonable as a means to balance

individual liberties with the interest of greater society (Ontario Justice Education

Network, 2013, p. 2). To do so, one must employ the two-part legal test, known as

the Oakes test.

The first part addresses whether or not the limitations are “prescribed by law”,

meaning it “must be legal, and be part of a law, statute or regulation that is within the

jurisdiction of the level of government that passed it” (Ontario Justice Education

Network, 2013, p. 13). The governing Mask Policy that Bill has been accused of

challenging is protected under the Public Health Act. Given the communal public

responsibility to stop the spread of COVID-19, the public interest of wearing a mask

outweighs any individual’s infringing liberty in not wanting to wear a mask

(Holmstorm and Rossell, 2020). The second part of the Oakes test is to evaluate

whether or not the actions to restrict Bill’s speech were justified in this context. The

first step to do so is to determine whether the actions were “pressing and substantial”

(Ontario Justice Education Network, 2013, p. 13). Simply, the law must have an

imperative role in society. As stated above, the Mask Policy could be considered

pressing and substantial, given the critical need to stop or decrease the spread of

COVID-19.

Next, we must evaluate whether the government was justified in their actions

to limit one's rights. In other words, the government has to find reasonable ways to

achieve or implement its legislation. To do so, they must prove proportionality,

rationality, and minimal impairment. After the incidents in question, the school board

requested that Bill delete his Tweets and wear different masks while at school.

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However, Bill refused and was subsequently terminated from his position. Here, the

school board was attempting to restrict Bill’s expression while in his role as an

educator. Given the contagion factors considered in the development and

implementation of the Mask Policy, we could argue that there was a rational

connection between limiting Bill’s expression in order to maintain a reasonable level

of safety in schools.

In terms of whether the negative effects of the limitation being proportional to

the positive effects of the government action and the importance of the objective, we

refer back to Bill’s public role as a teacher and the influence he wields on students,

such as Aiden, in arguing that the infringement on his rights of freedom of expression

as laid out in section 2(b) of the charter is justified. However, the negative effect of

him losing his job is not proportional to the objective. We would argue that there is

another course of action that can be taken by the school board. In particular, Bill may

be convinced to make his Twitter account private, thus negating public access to his

expressions, and that would remove the tweet from section 2(b) jurisdiction. As we

saw in Ross v New Brunswick School District No. 15 (1996), the conditions of the

accused's continued employment included limitations on controversial publications

(as cited in Jones, 2021). Therefore, we feel as though that is an option worth

exploring in this case, to ensure minimal impairment. The Mask Policy, on the other

hand, may be expanded to require that no masks may carry slogans of any sort. If

Bill were to abide by those conditions, the School Board would need to reconsider

the termination of his employment.

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 References

Alberta Education (2020). Teaching quality standard. Edmonton: Alberta

Government. [Link]

52c05000b4de/resource/afc2aa25-ea83-4d23-a105-

d1d45af9ffad/download/[Link]

Alberta Teachers Association (ATA). 2021. Code of professional conduct.

[Link]

es/[Link]

British Columbia Civil Liberties Association. (2019, February). Freedom of

expression: Social media platforms . Retrieved October 13, 2021, from

[Link]

Fraser v. Public Service Staff Relations Board, [1985] 2 SCR 455 [Link]

[Link]/scc-csc/scc-csc/en/item/96/[Link]

The Government of Canada. (2021). Section 2(b) - Freedom of expression.

Charterpedia. [Link]

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Holmstrom, E. & Rossall, J. (2020). Unmasking the law: The legal structure behind

mandatory masks. Alberta Doctors’ Digest.

[Link]

Jones, R. (2021). 4B - Issues of misconduct (PowerPoint). D2L.

[Link]

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Ontario Justice Education Network. (2013). Section 1 of the Charter and the Oakes

test. Retrieved October 10, 2021 from [Link]

Brief_Section-1-and- Oakes_0.pdf

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

[Link]/scc-csc/scc-csc/en/item/1367/[Link]

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

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Saskatchewan (Human Rights Commission) v. Whatcott, 2013 SCC 11, [2013] 1

S.C.R. 467 [Link]