This case concerns a school teacher, Richard Morin, who showed a film called "Thy Kingdom Come, Thy Will be Done" to his grade 9 class. He was then prohibited from showing the film to other classes or continuing with the related project by the school principal. Morin appealed this decision internally and was partially successful but was then placed on involuntary leave for the rest of the year and not rehired for the following year. Morin sued the school board for breach of freedom of expression under the Charter, wrongful dismissal, and defamation. The trial judge dismissed all of Morin's claims. Morin has now appealed the trial judge's decision.

1. Case Name:
Morin v. Prince Edward Island Regional
Administrative Unit No.
3 School Board
Between
Richard W.O. Morin, appellant, and
Board of Trustees of Regional Administration Unit #3,
respondent
[2002] P.E.I.J. No. 36
2002 PESCAD 9
Docket: AD-0856
Prince Edward Island Supreme Court - Appeal Division
McQuaid, Webber and Carruthers JJ.A.
Heard: June 11 and 12, and September 24-28, 2001.
Judgment: May 1, 2002.
(265 paras.)
Civil rights — Freedom of speech or expression — Expression, what constitutes —
Freedom of expression, scope of — Limitations on — Education — Education authorities
— School commissions or boards — Powers respecting school courses or programs —
Teachers — Employment — Dismissal.
Appeal by Morin from dismissal of his action for damages for breach of his right to
freedom of expression under the Canadian Charter of Rights and Freedoms, breach of his
right to life, liberty and security of the person, wrongful dismissal and
defamation. Morin, a schoolteacher, showed a film entitled Thy Kingdom Come, Thy
Will Be Done to his grade nine class as part of a related project. The next day he was
prohibited by the vice principal and later the principal from showing the film again or
doing the project. The reasons given for the prohibition included some parental
opposition to the film because it dealt with religious fundamentalists, inappropriateness
for the age group, not being part of the approved curriculum, and there not having been
sufficient preparation for the project. An internal appeal resulted in the teacher being told
that while the project was appropriate for the age group and within the curriculum, he
could only show the film and do the project if his preparation met the approval of the
principal and school superintendent. He went on a sick leave a few days after the
controversy began, and on his return to the school many students boycotted his classes.
He was then granted a temporary leave of absence with pay until the end of the school
year. He was not rehired for the following school year.

2. HELD: Appeal allowed in part solely with regard to the claim for breath of freedom
of expression. Morin was attempting to convey a meaning when he showed the film. It
was expressive of his beliefs in what was an appropriate topic for his teaching
activities. He was dealing with religion as an important element of society, and was
teaching in a manner consistent with the approved curriculum. This was expression as
defined by the Charter. The students also had a right to hear this expression and benefit
from it. The Board's later decision allowing the project subject to the approval of the
principal and the superintendent was also a limitation on Morin's expression. These
limits clearly breached section 2(b) of the Charter and were not saved under section
1. There was evidence to support the trial judge's finding that there was no collateral
contract requiring the school board to rehire Morin the following school year. There was
also evidence to support the trial judge's dismissal of Morin's defamation claim.
Statutes, Regulations and Rules Cited:
Canadian Charter of Rights and Freedoms, 1982, ss. 1, 2, 2(b), 6, 7, 24(1).
Criminal Code, ss. 195.1(1), 195.1(1)(c), 319(2).
Public Accounting and Auditing Act, R.S.P.E.I. 1988, C.p-28, s-s.14(1).
School Act R.S.P.E.I. 1988 Cap. S-2, s.42, s.43.
Supreme Court Act, R.S.P.E.I. 1988, S-10, s-s.56(4).
School Act Regulation, No. EC665/81, s.1.79, s.1.79(2), s.1.79(13).
Prince Edward Island Rules of Civil Procedure, Rule 26.01.
Cases cited:
Boring v. Buncombe County Board of Educational et al (1998), 136 F. 3d
364 (USA).
Committee for the Commonwealth of Canada v. Canada, [1991] 1 S.C.R.
139 (S.C.C.).
Crawford v. Cashin, [1999] P.E.I.J. No. 91 (Quicklaw) (P.E.I.S.C.T.D.).
Danson v. Ontario (A.G.), [1990] 2 S.C.R. 1086 (S.C.C.).
Dormuth v. Unetreiner, [1964] S.C.R. 122 (S.C.C.).
Edmonton Journal v. Alberta (Attorney General), [1989] 2 S.C.R. 1326
(S.C.C.).
Ford v. Quebec (Attorney General), [1988] 2 S.C.R. 712 (SCC).
Godbout v. Longueuil (City), [1997], 3 S.C.R. 844 (S.C.C.).
Hodgkinson v. Simms [1994] 3 S.C.R. 377 (S.C.C.).
Housen v. Nikolaison, [2002] S.C.J. No. 31, 2002 SCC 33.

3. Hunter v. Southam Inc., [1984] 2 S.C.R. 145 (S.C.C.).
Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927
(S.C.C.).
Johnston v. Murchison (1995) 127 Nfld. & P.E.I.R. 1 (P.E.I.S.C.A.D.).
Keefe v. Geanokos, 418 F. 2d 359 (1969) (U.S.C.A., 1st Circuit).
Keegstra v. The Board of Education of the County of Lacombe No. 14
(1983), 45 A.R. 348 (Bd. of Reference).
Morin v. Board of Education of Regional Administrative Unit No. 3
(1995), 125 Nfld. & P.E.I.R. 211 (P.E.I.S.C.A.D.), Leave to appeal denied,
(1995), 140 Nflld. & P.E.I.R. 90 (S.C.C.).
Munro-Glasgow v. Glasgow 1983 Carswell 83, para. 9 (N.S.C.A.).
Noye Enterprises Inc. v. Grady (1999), 172 Nfld. & P.E.I.R. 80
(P.E.I.S.C.-A.D.).
Palmer v. R., [1980] 1 S.C.R. 759, at 775 (S.C.C.).
Parducci v. Ruthland, 316 F. Supp. 352 (1970) (U.S. District Court).
Pickering v. Board of Education, 391 U.S. 563 (1968), (U.S.S.C.).
R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295 (S.C.C.).
R. v. Guignard, [2002] S.C.J. No. 16, 2002 SCC 14 (SCC).
R. v. Keegstra, [1990] 3 S.C.R. 697 (SCC).
R. v. Keegstra, [1990] 3 S.C.R. 295 (S.C.C.).
R. v. Oakes, [1986] 1 S.C.R. 103 (S.C.C.).
R. v. Stolar, [1988] 1 S.C.R. 480 at 486 (S.C.C.).
R. v. Zundel, [1992] 2 S.C.R. 731 (S.C.C.).
Re: Sullivan (2000), 193 Nfld. & P.E.I.R. 190
(P.E.I.S.C.-A.D.)
Reference re ss. 193 and 195.1(1)(c) of the Criminal Code (Man.), [1990] 1
S.C.R. 1123 (SCC).
Ross v. New Brunswick School District No. 15, [1996] 1
S.C.R. 825 (S.C.C.), [1996] S.C.J. No. 40.
Ross v. New Brunswick School District No. 15, [1996] 1 S.C.R. 40
(S.C.C.).
RWDSU v. Dolphin Delivery Ltd., [1986] 2 S.C.R. 573 (SCC).
Shumate v. Board of Education of County of Jackson 478 F. 2d 233 (1973)
(U.S.C.A. 4th Circuit).
Stein et al v. The Ship "Kathy K" et al 62 D.L.R. (3d) 1 (S.C.C.).
Toneguzzo - Norvell (Guardian ad litem of ) v. Burnaby Hospital, [1994] 1
S.C.R. 377 (S.C.C.).
Varette v. Sainsbury, [1928] S.C.R. 72 (S.C.C.).
Walker v. Prince Edward Island (1993), 107 D.L.R. (4th) 69 (P.E.I.S.C.-

4. A.D.), affirmed by the Supreme Court of Canada [1995] 2 S.C.R. 407.
Walker v. Prince Edward Island, [1995] 2 S.C.R. 407 (S.C.C.).
Weber v. Ontario Hydro (1992), 98 D.L.R. (4th) 32 (Ont.C.A.).
Weber v. Ontario Hydro (1995), 125 D.L.R. (4th) 583 (S.C.C.).
Text cited:
Sopinka and Gelowitz: The Conduct of an Appeal 2nd ed. (Butterworths).
Articles cited:
Emerson, Professor Thomas I.: Toward a General Theory of the First
Amendment (1963), 72 Yale L.J. 877.
Reyes, Allison: Freedom of Expression and Public School Teachers
(1995), 4 Dal. J. Leg. Stud. 35.
Counsel:
Richard W.O. Morin, the appellant, on his own behalf.
Roger B. Langille, Q.C., for the respondent.
Reasons for judgment were delivered by: Webber J.A., concurred in by Carruthers
J.A. Dissenting reasons were delivered by McQuaid J.A.
WEBBER J.A.:—
BACKGROUND
¶1 The appellant Richard W.O. Morin is a school teacher who showed a film entitled
"Thy Kingdom Come, Thy Will be Done", to a grade nine Language Arts class. He was
subsequently prevented from showing it to any other class or from carrying out the
project to which it related - What Religion Means to Different People. At the time the
appellant was in his second year as a probationary teacher at the school. He appealed the
order of his principal not to show the film and was partially successful in his appeal
through the school system but was placed by the respondent board on an involuntary
leave of absence for the rest of the school year and not rehired for the following year.
¶2 The first statement of claim in this matter was filed on April 21, 1989. Various
court proceedings and amendments to the statement of claim followed, resulting in a trial
in June of 1999. The decision from that trial ([1999] P.E.I.J. No. 76, [1999] 2 P.E.I.R.
220), dismissing all claims, is what is now appealed. The issues raised at trial can be
summarized as follows:
(1) breach of the appellant's right of freedom of expression under s.2(b)
of the Canadian Charter of Rights and Freedoms;
(2) breach of s.7 of the Charter;

5. (3) wrongful dismissal; and
(4) defamation.
In addition to appealing the trial judge's findings on these issues, the appellant alleges
procedural errors and made a motion to this court for the introduction of new evidence.
¶3 The trial judge summarized the evidence with respect to this matter as follows:
[9] Sometime in 1986 the plaintiff, who had applied for a teaching
position in this province, was contacted by Linda Lowther who was
then Coordinator of French with Regional School Unit 3 ("Unit
3"). One of her tasks was to assist with the recruitment and selection
of French teachers. As a result of the contact, the plaintiff came to
Prince Edward Island to meet with Ms. Lowther. Subsequently, by
letter dated June 27, 1986, he was offered a full-time teaching
position in Unit 3 for the 1986-87 school year. He signed a Contract
for Teachers - Form A, which included the clause:
This contract may be extended by written mutual consent, by
both parties, but in any event shall not extend beyond June 30,
1987.
[10] By letter dated June 25, 1987 the plaintiff again was offered a full-
time teaching position in Unit 3 for the 1987-88 school
year. Another Contract for Teachers - Form A was duly signed by
both parties. This contract included the clause:
This contract may be extended by written mutual consent, by
both parties, but in any event shall not extend beyond June 30,
1988.
[11] During both school years in question the plaintiff was employed as
an untenured teacher at Birchwood Junior High School
("Birchwood") in this City. He was assigned to the French
Immersion program at the grade nine level. At this time the
Principal of Birchwood was George A. MacDonald.
[12] The plaintiff's first year at Birchwood seems to have passed with no
major difficulties. On June 25, 1987 the Principal provided the
following written evaluation of the plaintiff's first year performance:
Mr. Richard Morin is a first year untenured teacher at
Birchwood Junior High School. Mr. Morin is assigned to the
French Immersion program at the grade nine level.
Classroom observations indicate that Mr. Morin is a
conscientious hard working teacher who wants to do well. He

6. demonstrates that he is enthusiastic and sincere and reveals
empathy for his students. He shows respect for other people
and their ideas and is considerate of each student's self image.
There are however some concerns which I have discussed with
Mr. Morin in June 1, 1987 when I informed him that I would
be recommending him for a teaching position for the
1987-1988 school year.
These concerns are in the area of classroom management, poise
and neatness. If he is willing to work on the above concerns, I
believe classroom discipline will improve, the classroom
atmosphere will improve and Mr. Morin will gain greater
respect from his students and parents.
I trust Mr. Morin will find my evaluation fair and constructive.
[13] Unfortunately, the plaintiff's second year at Birchwood did not go as
smoothly as the first. There is evidence that a meeting was held on
March 7, 1988 with the Principal, Linda Lowther, Debbie Pineau,
the then Core French Coordinator for Unit 3, and John MacDonald,
who was then Superintendent for Administration for Unit 3, in
attendance. This meeting was called to consider the plaintiff's future
at Birchwood.
[14] The plaintiff has argued in his post-trial brief that the March 7
meeting did not occur despite the testimony of George MacDonald,
John MacDonald and Debbie Pineau that it did. There is also in
evidence as Exhibit P-1, Tab 10, short hand-written minutes of the
meeting prepared by John MacDonald. I am satisfied from the
evidence that this meeting did take place. Debbie Pineau testified
she recalled the meeting had been called to discuss the plaintiff's
future, but could not recall specifics of the discussions. She did
state, however, that she could not believe John MacDonald would
fabricate the minutes. Both John MacDonald and George
MacDonald were able to recall the meeting and confirmed that the
hand-written minutes accurately reflect the substance of the
discussion. Although Linda Lowther testified on behalf of the
plaintiff, she was not questioned about the March 7 meeting.
[15] According to the evidence, at the March 7 meeting George
MacDonald expressed concern about the plaintiff's future as a
teacher. He advised the group he felt the plaintiff could not remain
at Birchwood, but added the plaintiff had positive teacher attributes
that might be more suitable at the senior high school level.
[16] On Thursday, April 7, 1988 an event took place which led to a series
of confrontations and occurrences ultimately giving rise to this
litigation. It appears that during the evening of April 6 the plaintiff

7. viewed on the Public Broadcasting System a BBC documentary film
entitled "Thy Kingdom Come - Thy Will be Done" which described
the fundamentalist approach to religion in the United States. The
film made such a favourable impression on the plaintiff that he
determined to show it to his grade 9 Language Arts classes as the
basis for an assignment. The following morning the documentary,
which had been videotaped by the plaintiff's wife, was shown by the
plaintiff to another teacher's home room class during the Language
Arts period which the plaintiff taught.
[17] Apparently, some of the students to whom the documentary was
shown were not so favourably impressed. On Friday, April 8, the
Vice-Principal, Garnet Steele, learned that between 10 to 15 parents
had called the Principal's office to express concerns about their
children having been shown the documentary. The Principal was out
of the province for the day.
[18] The Vice-Principal, concerned the plaintiff might intend to show the
documentary to his own home room class that morning, proceed
[sic] to the plaintiff's class. The testimony of Garnet Steele and that
of the plaintiff differs somewhat as to what then
occurred. According to Steele, he asked the plaintiff if he could
speak to him whereupon the plaintiff stepped out of the classroom
into the corridor. The plaintiff says the conversation took place at
the classroom door. Both appear to agree that Steele informed the
plaintiff of the concerns expressed by the parents, and Steele
requested the plaintiff not to proceed further with the assignment
until he had discussed it with the Principal. Steele testified the
plaintiff questioned this decision, and asked what Steele would do if
he, the plaintiff, showed the documentary. Steele stated he replied
the plaintiff would be removed from the classroom. The plaintiff
says he was told he would be "dragged" from the classroom. In the
final analysis, there is no evidence anyone overheard this
conversation, whatever was said.
[19] The plaintiff did not show the documentary on Friday. At
approximately 1:30 in the afternoon the plaintiff attended at the
Vice-Principal's office to express concern about what he would do
with the students of the class who had viewed the documentary the
previous day, a class the plaintiff was due to teach during the last
period. The Vice-Principal arranged for a substitute for that period,
and also for Monday morning in order to provide the plaintiff the
time to meet with the Principal.
[20] George MacDonald first became aware of the events of April 7 and 8
on Sunday evening when he received a telephone call at his home

8. from the plaintiff who asked to meet with him. The Principal
telephoned the Vice-Principal who briefly described the events in
question. The Principal called the plaintiff and arranged to meet
with him the next morning. It appears the Vice-Principal did attend
at the Principal's home on Sunday evening to further brief him on the
concerns that had been expressed by the parents.
[21] By letter dated April 8, 1988 the Superintendent for Administration,
John MacDonald, advised the plaintiff as follows:
This letter is to advise you that your present teaching contract
will terminate effective June 30, 1988. This notice is being
given in accordance with Part III, Section 42 of the Prince
Edward Island School Act. We shall make every effort to place
you in a teaching position in Unit 3 for September, 1988.
You are invited to attend a meeting at Stonepark Junior High
School Lecture Theatre on Thursday, April 21, at 3:30 p.m. to
discuss possibilities for teaching assignments in Unit 3 for the
1988-1989 school year.
[22] This letter was in accordance with s. 42 of the School Act, R.S.P.E.I.
1988, c. S-2. There is no evidence as to whether or not the plaintiff
attended the meeting at Stonepark Junior High School.
[23] On Monday morning, April 11, the plaintiff and his wife met with
the Principal, George MacDonald in the latter's office. There is, of
course, a conflict between the testimony of the plaintiff and his wife
and that of George MacDonald as to exactly what was said at this
meeting. It is sufficient for the purposes of this overview to note the
plaintiff was provided with an opportunity to explain the project he
intended to pursue. He testified he "...went into as much detail as
possible". MacDonald testified the plaintiff spoke for 20 to 25
minutes uninterrupted. He stated the more the plaintiff spoke, the
more concerned he, MacDonald, became that the project as proposed
would cause great turmoil. According to MacDonald, his concerns
included how the project would affect those children of
fundamentalist parents in the school, whether the project was age
appropriate, and the apparent lack of detailed planning as to the
project itself. MacDonald informed the plaintiff the project would
not proceed, explaining to him his reasons. The plaintiff asked what
would happen if he went ahead anyway. He testified MacDonald
replied "I'll fire you". He also stated MacDonald said "If you appeal
my decision I'll consider it insubordination".
[24] MacDonald's evidence is quite different. His version is that when
the plaintiff asked what would happen if he did the project anyway,

9. he, MacDonald, responded he would consider it insubordination and
would recommend he be dismissed. MacDonald testified he told the
plaintiff that he, MacDonald, did not hire or fire. He also stated he
informed the plaintiff he could appeal the decision to the
Superintendent of Education of Unit 3, Rufus Reid.
[25] The next day, Tuesday April 12, 1988 the Principal provided to the
plaintiff a letter confirming his position. It states, in part:
Your assignment to the french immersion students in 9E on
April 7, 1988 is withdrawn and the British documentary used
will not form part of the language arts program at Birchwood
Junior High School.
[26] On that same day the plaintiff, accompanied by his wife and James
L. Blanchard, the General Secretary of the Prince Edward Island
Teacher's Federation, attended at the office of Rufus Reid. George
MacDonald was also in attendance. The plaintiff and Mr. Blanchard
explained to Mr. Reid what had occurred. The plaintiff described
the project, which he had entitled "What Religion Means to Different
People", and why he considered the grade 9 students capable of
doing it. On April 14, Mr. Reid informed the plaintiff in writing that
he had decided to uphold the decision reached by the Principal. His
letter contained the following paragraph:
In my opinion, Mr. MacDonald is well qualified to determine
what material and methodology is suitable for the students at
Birchwood Junior High School. I have confidence that his
experience with junior high students and his knowledge of the
community served by the school have enabled him to make the
right decision in this instance.
[27] The plaintiff was on sick leave supported by medical certificates
between April 11, 1988 and May 12, 1988. Two certificates were
issued to him by his physician; one on April 11, and a second on
April 29. During this period the plaintiff decided to hold a public
meeting where the documentary in question would be shown,
especially to concerned parents. Also during this period, the media
became interested in the on-going situation, and the plaintiff was
approached by the CBC to give his side of the events. On April 18,
recognizing the situation was now of interest to the media, the
Principal issued the following media release:
I made a decision that the assignment was not age
appropriate. I was not able to see the relevance of this
assignment to the grade nine language arts program and it

10. appeared to me that it was 'parachuted' into the program.
My clients are the students who attend this school and their
parents. This assignment caused much concern among students
and their parents. Students are a captive audience, I have a
responsibility to them and to their parents.
I feel that it may well be an appropriate assignment for a high
school or a university political science program. It is not one
that is appropriate for junior high school students, in my
opinion.
He was requested to withdraw the assignment. In my opinion,
his professional freedom was not compromised.
[28] On April 29, 1988 the Prince Edward Island Teachers' Federation
informed the Chairperson of Unit 3 that, at the plaintiff's request, it
had agreed to intervene to attempt to resolve the dispute between the
plaintiff and the Unit 3 administration. It requested a review of the
decision regarding the appropriateness of the assignment in question.
[29] In the interim the plaintiff's sick leave was to expire on May 12. He
informed the Principal on May 12 that he intended to return to the
class room next day, Friday, May 13. The Principal advised the
plaintiff he needed more time to prepare all concerned for his return
to the school. There is an indication in the evidence that a number of
staff members at Birchwood had found upsetting certain comments
the plaintiff was reported to have made.
[30] On Monday, May 16, 1988 the plaintiff returned to the school. The
evidence clearly established that some parents sent letters to the
school excusing their children from attending the plaintiff's class.
Other students attended, but left class before the period
concluded. There is evidence that during the plaintiff's first home
room period of the day seven students out of twenty-nine did not
attend the class. During the first period, eleven of thirty-three were
absent, and during the second period fifteen of twenty-nine were
absent initially, and eight more left during the course of the period.
During the fifth period, another home room period, the original
seven students did not attend. Finally, during the seventh period of
the day, Language Arts, six students of twenty-nine were absent at
the beginning, and during the period more students left until, at the
end of the period, only four students remained in class. On May 19,
1988 the Unit 3 School Board granted the plaintiff a temporary leave
of absence with pay in order that the events of May 16 could be
investigated. By letter of May 21 addressed to the Superintendent of
Education of Unit 3, Rufus Reid, the plaintiff agreed to the
temporary leave of absence until May 25 "...in order to give the Unit
3 School Board the necessary time to come to a decision about the

11. appropriateness of my project".
[31] On May 17 the Curriculum Committee agreed to meet to examine
the "appropriateness of the assignment in question as it pertains to
the grade nine Language Arts program in Birchwood Junior High
School". The Curriculum Committee requested that three members
of the provincial Junior High Language Arts Program be made
available to give advice on the question. The plaintiff was invited to
meet with the Curriculum Committee at 7:30 p.m. on May 17. This
meeting began at 5:30 p.m. and was adjourned at 12:15 a.m. During
the early part of the meeting the plaintiff, his wife and Mr. Blanchard
were present and the plaintiff fully described the project and
assignment he had intended for the grade 9 Language Arts
classes. He was questioned extensively by the members of the
Curriculum Committee and the three members of the provincial
Junior High Language Arts Committee who were present to provide
advice. When the plaintiff had completed his presentation, he, his
wife and Mr. Blanchard left the meeting, and George MacDonald,
who had not been present up to that point, joined the meeting.
[32] The Principal reported the events of April 11 as he had assessed
them, and responded to questions.
[33] At 12:15 a.m. the Committee, not having completed its evaluation,
adjourned and decided to reconvene the next day at 12:00 noon. The
meeting in fact was reconvened at 12:10 p.m. on Thursday, May 19,
1988 and after considerable further discussion adjourned having
agreed to meet again beginning at 7:00 p.m. that evening. The
formal committee meeting was reconvened at 8:30 p.m. after several
committee members had viewed the second part of the documentary
"Thy Kingdom Come - Thy Will be Done". The meeting finally
adjourned at 11:15 p.m. As a result of the recommendation of the
Curriculum Committee the Unit 3 School Board released the
following statement at the conclusion of a Special meeting held on
May 25, 1988:
'As provided in School Board Policy, the Curriculum
Committee examined the appeal by Mr. Morin of the
administration's decision to cancel a language arts assignment
entitled 'What religion means to different people'.
Three meetings were held during which the Curriculum
Committee examined the Statement of Appeal, examined the
grade nine curriculum, interviewed the participants, and
formulated a recommendation for the School Board. The
Curriculum Committee recognized the fact that different people
interpreted the assignment in different ways; therefore, all

12. evidence was accepted at face value.
The Curriculum Committee examined all aspects of the
assignment including the following: topic, objectives, skills,
content, materials, preparation, presentation, student activities,
and evaluation. The assistance of members of the provincial
Junior High School Language Arts Curriculum Committee was
valuable especially as it pertained to the relationship between
the assignment and the authorized provincial program.
In general, the committee reviewed the assignment keeping the
following in mind: (a) the provincial program entitled
'Contexts', (b) customary teaching practice, and (c) the
characteristics of the school and community. In summary, the
Curriculum Committee found the assignment:
- to be acceptable in terms of theme, topic, skills (viewing,
reading, writing), and learning materials;
- to be wanting in terms of preparation, review of
prerequisite skills, presentation, and evaluation; and
- to be questionable in terms of meeting the expectations of
students and parents with regard to the sensitivity of the
topic and the provision of an alternate assignment.
It is the School Board's opinion that correcting action in respect
to the assignment should take place as expressed in the
following decision:
The Board determines that the assignment was
appropriate in principle as a part of the authorized
Language Arts program, although it was inappropriate in
terms of preparation and presentation. Policy BDE
provides that an appealed decision may be
modified. Therefore, the assignment in question remains
cancelled until such time as its mode of presentation is
altered to the satisfaction of both teacher and principal,
with the concurrence of the Superintendent of Programs.'
[34] The Unit 3 School Board met on Saturday, May 28, 1988 to consider
whether the plaintiff could return to Birchwood for the balance of
the school year in a teaching capacity. There had been a meeting on
May 26 between the plaintiff, Mr. Blanchard and George
MacDonald, but no agreement had been reached. It appears parents
of some of the plaintiff's grade nine students were opposed to his
return to the class so late in the school year since he had been away
from the class for a considerable period of time. The Board adopted
a resolution that the plaintiff be placed on leave with pay for the
remainder of the 1987-88 school year. One member of the Board

13. voted against the resolution. George MacDonald did not attend this
meeting.
[35] By letter dated May 28, 1988 the plaintiff was informed of the
Board's decision. He was also provided with a copy of a public
statement released by the Board as it considered it desirable that the
school and the public in Unit 3 be informed of its decision. The
public statement read:
Following a Special Meeting of the Unit 3 School Board held
on Saturday, May 28, 1988, the Chairperson released the
following public statement:
'The Unit 3 School Board has determined that Rick
Morin, teacher at Birchwood Junior High School, be
placed on a leave with pay, effective immediately, as a
non-disciplinary measure, based on the paramount
concern for the best interests of students.
The decision was made in light of all the surrounding
circumstances, including the length of time Mr. Morin
was absent from school since the controversy first arose,
the anxiety of students, and the need for a settled climate
in the school just prior to exam time.
The Board emphasizes that this decision reflects the
Board's paramount concern for the interests of students
and the decision is not intended to be a reflection in any
way of Mr. Morin's suitability as a teacher.'
[36] On August 11, 1988 the plaintiff wrote to the Superintendent of
Personnel of Unit 3 seeking clarification of his situation. By letter
dated August 25 he was informed that teaching positions for the
1988-89 school year had been filled, and that his application would
remain on file for the remainder of the year for consideration if
additional positions became available.
¶4 The appellant takes issue with a number of aspects of this statement of facts. The
trial judge referred to this summary as a "broad outline only," dealing elsewhere in his
judgment with details relevant to specific issues. As a broad outline, it is a fair summary
of the sequence of events between the parties.
¶5 The trial judge dismissed the plaintiff's claim in its entirety.
¶6 The appellant argues errors of law on all issues and some errors of fact.
DISPOSITION

14. ¶7 I would allow the appeal with respect to the breach of the appellant's right of free
expression as set out in s.2(b) of the Charter of Rights and Freedoms. I would dismiss all
other grounds of appeal. The costs award would be varied accordingly. The matter of
damages should be remitted to the trial judge.
CHARTER OF RIGHTS
¶8 The trial judge assumed, without finding, that the appellant's activity had
expressive content and fell within the scope of s.2(b). He found that the purpose of the
decision of the principal and administration was not to restrict the plaintiff's freedom of
expression but rather was to create an effective learning environment for the students. He
took the position that administrators must have broad discretion to regulate what is taught
as part of the curriculum and a principal should be able to make such a decision, on
reasoned ground, without fear of lawsuits.
¶9 With all due respect I cannot agree with the trial judge's interpretation or
application of the law regarding freedom of expression in this case. I find that the
purpose of the principal's action was clearly to restrict the appellant's freedom of
expression, and there were no "reasoned grounds" for the decisions made.
¶ 10 Section 2 of the Charter states:
2. Everyone has the following fundamental freedoms:
(a) freedom of conscience and religion;
(b) freedom of thought, belief, opinion and expression, including
freedom of the press and other media of communication;
(c) freedom of peaceful assembly; and
(d) freedom of association.
¶ 11 The appellant argues that the decision to forbid him from showing the film he
wished to use as part of his teaching program, and thus from carrying out the project he
had chosen, violated his fundamental right of freedom of expression under s.2(b) of the
Charter.
¶ 12 The analytical framework for a s.2(b) analysis has been set out by the Supreme
Court of Canada through a number of key cases. In Ford v. Quebec (Attorney General),
[1988] 2 S.C.R. 712, at p.746, the Court referred to some of the principles underlying the
concept of freedom of expression. That case involved a challenge to a Quebec sign law
that restricted commercial signs to French only. The Court applied the freedom of
expression guarantee to commercial expression, given the underlying principles behind
such a freedom:
It is apparent to this Court that the guarantee of freedom of expression in
s.2(b) of the Canadian Charter and s.3 of the Quebec Charter cannot be
confined to political expression, important as that form of expression is in

15. a free and democratic society. The pre-Charter jurisprudence emphasized
the importance of political expression because it was a challenge to that
form of expression that most often arose under the division of powers and
the 'implied bill of rights,' where freedom of political expression could be
related to the maintenance and operation of the institutions of democratic
government. But political expression is only one form of the great range of
expression that is deserving of constitutional protection because it serves
individual and societal values in a free and democratic society.
¶ 13 The court in Ford went on to affirm the comments in RWDSU v. Dolphin
Delivery Ltd., [1986] 2 S.C.R. 573 by McIntyre J. at p.583 where he said about freedom
of expression: "It is one of the fundamental concepts that has formed the basis for the
historical development of the political, social and education institutions of western
society." [Emphasis added]
¶ 14 The following year the Supreme Court in Irwin Toy Ltd. v. Quebec (Attorney
General), [1989] 1 S.C.R. 927 developed these themes further, reaffirming the existence
of a protected right of free speech in relation to commercial expression. This case dealt
with Quebec-legislated restrictions on advertising to children. The Court found a
limitation on a protected right but there was a dissent as to whether or not a s.1
justification for a limitation of that right had been proven.
¶ 15 In Irwin Toy Chief Justice Dickson for the majority set out the analytical
framework for reviewing s.2(b) Charter challenges. The first step is to determine
whether the activity at issue may properly be characterized as expression within the
meaning of s.2(b) of the Charter. The Court found expression to consist of both content
and form; an activity is expressive if it attempts to convey meaning.
¶ 16 The Court cited with approval in Irwin Toy (at p.970) an excerpt from an article
by Professor Thomas I. Emerson entitled Toward a General Theory of the First
Amendment (1963), 72 Yale L.J. 877, at p.886:
... the theory of freedom of expression involves more than a technique for
arriving at better social judgments through democratic procedures. It
comprehends a vision of society, a faith and a whole way of life. The
theory grew out of an age that was awakened and invigorated by the idea
of a new society in which man's mind was free, his fate determined by his
own powers of reason, and his prospects of creating a rational and
enlightened civilization virtually unlimited. It is put forward as a
prescription for attaining a creative, progressive, exciting and intellectually
robust community. It contemplates a mode of life that, through
encouraging toleration, skepticism, reason and initiative, will allow man to
realize his full potentialities. It spurns the alternative of a society that is
tyrannical, conformist, irrational and stagnant.

16. ¶ 17 The Court then reaffirmed that the rights and freedoms guaranteed in the Charter
should be given a large and liberal interpretation. On that basis there was no reason to
exclude commercial expression from the protection of the Charter.
¶ 18 The second step in the required analysis is to determine whether the purpose or
effect of the government action in question was to restrict freedom of expression. The
Court noted that the importance of this query was set out in R. v. Big M Drug Mart Ltd.,
[1985] 1 S.C.R. 295 at pp.331-32 where Dickson C.J. said:
... In my view, both purpose and effect are relevant in determining
constitutionality; either an unconstitutional purpose or an unconstitutional
effect can invalidate legislation. All legislation is animated by an object
the legislature intends to achieve. This object is realized through the
impact produced by the operation and application of the
legislation. Purpose and effect respectively, in the sense of the legislation's
object and its ultimate impact, are clearly linked, if not
indivisible. Intended and actual effects have often been looked to for
guidance in assessing the legislation's object and thus, its validity.
¶ 19 With respect to "purpose," the Court in Irwin Toy noted that government can
almost always claim that its subjective purpose was to address some real or purported
social need, not to restrict expression. Elaborating upon how one must view the fact
situation to make this determination Dickson C.J. stated (at p.974):
If the government's purpose is to restrict the content of expression by
singling out particular meanings that are not to be conveyed, it necessarily
limits the guarantee of free expression. If the government's purpose is to
restrict a form of expression in order to control access by others to the
meaning being conveyed or to control the ability of the one conveying the
meaning to do so, it also limits the guarantee. On the other hand, where
the government aims to control only the physical consequences of certain
human activity, regardless of the meaning being conveyed, its purpose is
not to control expression.
¶ 20 He went on to caution (at p.975-976):
... Of course, rules can be framed to appear neutral as to content even if
their true purpose is to control attempts to convey a meaning. For
example, in Saumur v. City of Quebec, [1953] 2 S.C.R. 299, a municipal
by-law forbidding distribution of pamphlets without prior authorization
from the Chief of Police was a colourable attempt to restrict expression.
If the government is to assert successfully that its purpose was to control a
harmful consequence of the particular conduct in question, it must not have
aimed to avoid, in Thomas Scanlon's words ('A Theory of Freedom of
Expression', in Dworkin, ed., The Philosophy of Law (1977), at p.161):

17. a) harms to certain individuals which consist in their coming to
have false beliefs as a result of those acts of expression; b)
harmful consequences of acts performed as a result of those
acts of expression, where the connection between the acts of
expression and the subsequent harmful acts consists merely in
the fact that the act of expression led the agents to believe (or
increased their tendency to believe) these acts to be worth
performing.
In each of Scanlon's two categories, the government's purpose is to regulate
thoughts, opinions, beliefs or particular meanings. That is the mischief in
view. On the other hand, where the harm caused by the expression in issue
is direct, without the intervening element of thought, opinion, belief, or a
particular meaning, the regulation does aim at a harmful physical
consequence, not the content or form of expression.
In sum, the characterization of government purpose must proceed from the
standpoint of the guarantee in issue. With regard to freedom of expression,
if the government has aimed to control attempts to convey a meaning either
by directly restricting the content of expression or by restricting a form of
expression tied to content, its purpose trenches upon the guarantee. Where,
on the other hand, it aims only to control the physical consequences of
particular conduct, its purpose does not trench upon the guarantee. In
determining whether the government's purpose aims simply at harmful
physical consequences, the question becomes: does the mischief consist of
the meaning of the activity or the purported influence that meaning has on
the behaviour of others, or does it consist, rather, only in the direct physical
result of the activity.
¶ 21 If government's purpose is found not to be to control or restrict attempts to
convey a meaning, then one must determine whether or not, in any event, the
governmental action had that effect. For this part of the analysis, the burden of proof
falls upon the plaintiff.
¶ 22 Dickson C.J. stated in Irwin Toy that when considering the effect of government
action, the restrictive effect must be shown to have some connection with the principles
and values underlying the freedom in question. With respect to freedom of speech, the
court affirmed the values identified in Ford, summarizing them as follows (at p.976):
...
(1) seeking and attaining truth is an inherently good activity; (2)
participation in social and political decision-making is to be fostered
and encouraged; and (3) the diversity in forms of individual self-
fulfillment and human flourishing ought to be cultivated in an
essentially tolerant, indeed welcoming, environment not only for the
sake of those who convey a meaning, but also for the sake of those

18. to whom it is conveyed. In showing that the effect of the
government's action was to restrict her free expression, a plaintiff
must demonstrate that her activity promotes at least one of these
principles. It is not enough that shouting for example, has an
expressive element. If the plaintiff challenges the effect of
government action to control noise, presuming that action to have a
purpose neutral as to expression, she must show that her aim was to
convey a meaning reflective of the principles underlying freedom of
expression. The precise and complete articulation of what kinds of
activity promote these principles is, of course, a matter for judicial
appreciation to be developed on a case by case basis. But the
plaintiff must at least identify the meaning being conveyed and how
it relates to the pursuit of truth, participation in the community, or
individual self-fulfillment and human flourishing.
¶ 23 With respect to the specific problem before it in Irwin Toy the Court applied this
purposive test as follows (at p.977-979):
c. Sections 248 and 249
There is no question but that the purpose of ss.248 and 249 of the
Consumer Protection Act was to restrict both a particular range of
content and certain forms of expression in the name of protecting
children. Section 248 prohibits, subject to regulation, attempts to
communicate a commercial message to persons under thirteen years
of age. Section 249 identifies factors to be considered in deciding
whether the commercial message in fact has that prohibited
content. At first blush, the regulations exempting certain
advertisements transform the prohibition into a 'time, place or
manner' restriction aiming only at the form of
expression. According to ss. 88 to 90 of the Regulation respecting
the application of the Consumer Protection Act, an advertisement
can be aimed at children if: (1) it appears in certain magazines or
inserts directed at children; (2) it announces a programme or show
directed at children; or (3) it appears in or on a store window,
display, container, wrapping, or label. Yet, even if all advertising
aimed at children were permitted to appear in the manner specified,
the restriction would be tied to content because it aims to restrict
access to the particular message being conveyed. However, the
regulations in question do more than just restrict the manner in
which a particular content must be expressed. They also restrict
content directly. Section 91 provides that even where
advertisements directed at children are permitted, such
advertisements must not, for example 'use a superlative to describe
the characteristics of goods or services' or 'directly incite a child to
buy or to urge another person to buy goods or services or to seek

19. information about it.' Furthermore, it is clear from the substantial
body of material submitted by the Attorney General of Quebec as
well as by the intervener, Gilles Moreau, president of the Office de
la protection du consommateur, that the purported mischief at which
the Act and regulations were directed was the harm caused by the
message itself. In combination, therefore, the Act and the
regulations prohibit particular content of expression. Such a
prohibition can only be justified if it meets the test under s. 1 of the
Canadian Charter and s.9.1 of the Quebec Charter.
D. Summary and Conclusion
.....
In the instant case, the plaintiff's activity is not excluded from the
sphere of conduct protected by freedom of expression. The
government's purpose in enacting ss. 248 and 249 of the Consumer
Protection Act and in promulgating ss. 87 to 91 of the Regulation
respect the application of the Consumer Protection Act was to
prohibit particular content of expression in the name of protecting
children. These provisions therefore constitute limitations to s. 2(b)
of the Canadian Charter and s. 3 of the Quebec Charter. They fall to
be justified under s. 1 of the Canadian Charter and s. 9.1 of the
Quebec Charter.
¶ 24 All members of the Court in Irwin Toy agreed with this analysis and
outcome. There was a dissent with respect to whether or not these restrictions on
freedom of expression could be justified under s.1.
¶ 25 The reason for quoting at length from Irwin Toy is that it provides one of the
most expansive explanations by the Court of the analytical process to be used when
considering a s.2(b) challenge. And the framework set out in Irwin Toy has been used by
the Court in subsequent cases.
¶ 26 For example, Chief Justice Dickson in Reference re ss. 193 and 195.1(1)(c) of
the Criminal Code (Man.), [1990] 1 S.C.R. 1123, reiterated this principled approach to
interpreting the scope of the fundamental freedoms set out in Irwin Toy. All members of
the Court found that Criminal Code section 195.1(1)(c) (soliciting for the purposes of
prostitution) was inconsistent with the Charter right of freedom of expression. Writing
for the majority, Dickson C.J. found the restrictions of s.195.1(1) justified under s.1 of
the Charter.
¶ 27 In this Reference re ss. 193 and 195.1(1)(c) , Lamer J. expanded upon the
analytical framework developed by the Court to that point, saying that form and content
are in some cases inextricably linked, for example in the choice of language through

20. which one communicates, and in art, and that explains why art and language merit
protection under s.2(b) of the Charter.
¶ 28 Other forms of expression, however, can be kept distinct from the content they
seek to convey and thus excluded from the scope of s.2(b) of the Charter, e.g. threats or
acts of violence. This point was elaborated upon by Lamer J. in his concurring
decision. However, he went on to emphasize that activities are not excluded from the
protection of s.2(b) of the Charter simply because they have been made the subject of
criminal offences. On this point he concluded at p.1184:
Without settling the matter conclusively, I am of the view that at the very
least a law that makes it an offence to convey a meaning or message,
however distasteful or unpopular, through a traditional form of expression
like the written or spoken word or art must be viewed as a restriction on
freedom of expression, and must be justified, if possible, by s.1 of the
Charter. This method is consistent with the broad, inclusive approach to the
protected sphere of freedom of expression that this court has explicitly
adopted. ...
¶ 29 This is not to say that all expressive activity is protected. Lamer J. elaborated
upon this point at p. 1185:
...The unprotected forms involve direct acts of violence and often involve
direct attacks on the physical integrity and liberty of another. ...
criminalization is not the acid test of whether an activity is protected by
s.2(b). Where what has been criminalized is the conveyance of a message,
however distasteful or unpopular, which is conveyed in a non-violent form
of expression then it is protected by s.2(b), and the onus then shifts to the
state to justify the restriction on freedom of expression.
¶ 30 As for the actual method of analysis to be used in freedom of expression cases,
Lamer J. affirmed the approach set out above in Irwin Toy. Regarding the determination
of whether or not the purpose of government action was to restrict freedom of expression,
he stated at p.1187:
... If the government's purpose is to restrict a form of expression in order to
control access by others to the meaning being conveyed or to control the
ability of the one conveying the meaning to do so, it also limits freedom of
expression.
¶ 31 As for the merits of the case before him, in Reference re ss.193 and 195.1(1)(c),
Lamer J. referred to the impugned Code sections as specifically aimed at restricting
commercial expression "in perhaps its purest form," i.e. information relating to the
exchange of services for money. Therefore, s.195.1(1)(c) was found to restrict freedom of
expression as guaranteed by s.2(b) of the Charter. However, it was saved by satisfying
the requirements of s.1.

21. ¶ 32 R. v. Keegstra, [1990] 3 S.C.R. 697, contained the following factual background
at p.713:
Mr. James Keegstra was a high school teacher in Eckville, Alberta from
the early 1970's until his dismissal in 1982. In 1984 Mr. Keegstra was
charged under s.319(2) (then s.281.2(2)) of the Criminal Code with
unlawfully promoting hatred against an identifiable group by
communicating anti-Semitic statements to his students. He was convicted
by a jury in a trial before McKenzie J. of the Alberta Court of Queen's
Bench.
Mr. Keegstra's teachings attributed various evil qualities to Jews. He thus
described Jews to his pupils as 'treacherous,' 'subversive,' 'sadistic,' 'money-
loving,' 'power-hungry' and 'child killers.' 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. Mr. Keegstra expected his students to reproduce his teachings in class
and on exams. If they failed to do so, their marks suffered.
¶ 33 Mr. Keegstra argued that s.319(2) of the Criminal Code unjustifiably infringed
his freedom of expression as guaranteed by s.2(b) of the Charter.
¶ 34 The first step in the s.2(b) analysis set out by the court was the determination of
whether the activity of the litigant who alleged an infringement of the freedom of
expression fell within the protected s.2(b) sphere. At. p.729 Dickson C.J. for the majority
affirmed the following comments set out in Irwin Toy:
...'"Expression" has both a content and a form, and the two can be
inextricably connected. Activity is expressive if it attempts to convey
meaning. That meaning is its content. Freedom of expression was
entrenched in our Constitution and is guaranteed in the Quebec Charter so
as to ensure that everyone can manifest their thoughts, opinions, beliefs,
indeed all expressions of the heart and mind, however unpopular,
distasteful or contrary to the mainstream. Such protection is, in the words
of both the Canadian and Quebec Charters, 'fundamental' because in a free,
pluralistic and democratic society we prize a diversity of ideas and
opinions for their inherent value both to the community and to the
individual.'
¶ 35 Dickson C.J. then concluded at p.730:
.... It is enough that those who publicly and wilfully promote hatred convey
or attempt to convey a meaning, and it must therefore be concluded that the
first step of the Irwin Toy test is satisfied.
Moving to the second stage of the s.2(b) inquiry, one notes that the

22. prohibition in s.319(2) aims directly at words - in this appeal, Mr.
Keegstra's teachings - that have as their content and objective the
promotion of racial or religious hatred. The purpose of s.319(2) can
consequently be formulated as follows: to restrict the content of expression
by singling out particular meanings that are not to be conveyed. Section
319(2) therefore overtly seeks to prevent the communication of expression,
and hence meets the second requirement of the Irwin Toy test.
In my view, through s.319(2) Parliament seeks to prohibit communications
which convey meaning, namely, those communications which are intended
to promote hatred against identifiable groups. I thus find s.319(2) to
constitute an infringement of the freedom of expression guaranteed by
s.2(b) of the Charter. ...
¶ 36 At this point the Court entered into a s.1 analysis to determine whether or not the
restrictions imposed on freedom of expression by s.319(2) were justifiable in a free and
democratic society. By a majority of four to three, the Court upheld s.319(2) as
constitutional, justified under s.1 of the Charter. The three dissenting judges - La Forest,
Sopinka and McLachlin, JJ - were of the view that while the infringement of s.2(b) was
established, s.319(2) of the Code did not constitute a reasonable limit upon freedom of
expression, failing to meet the proportionality test.
¶ 37 Then in Committee for the Commonwealth of Canada v. Canada, [1991] 1 S.C.R.
139, the Court dealt with airport regulations which prohibited advertising or soliciting at
an airport and the actions of the airport manager who ordered the members of the
Committee for the Commonwealth of Canada to stop their activities. Those members had
gone to Montreal International Airport at Dorval with portable placards, leaflets, and
magazines to promote their political goals and recruit members. While some members of
the Court found the regulations in question did not violate freedom of expression, others
found that they did. All members of the Court found the actions of the airport manager to
violate the Committee members' freedom of expression and not to be justifiable under s.1
of the Charter.
¶ 38 That case involved a discussion about limitations of expression on public v.
private property, overall stating that historically one does not possess the right to use
another's private property as a forum for expression. Per McLachlin J. (as she then was)
at p. 228:
The matter is less clear where public property is involved. Since the
Charter applies to government action, the government must make its
property available as a forum for public expression in so far as the
guarantee of freedom of expression in s.2(b) of the Charter so
requires. This poses squarely the question of whether s.2(b) should be read
as guaranteeing access to some or all government property for use as a
forum for public expression. That is the issue at the heart of this case.

23. ¶ 39 In determining the answer to this question each member of the Court reviewed
what McLachlin J. termed "the shared values which have historically been associated
with the concept of freedom of expression" (p. 229). At the same time, however, she
applied the test set out in Irwin Toy, as discussed above, as did most members of the
Court, to determine the issue of constitutional protection of expression on a particular
state-owned property. In this case she reaffirms that if the purpose of the restriction on
expression is content-neutral then a further enquiry is needed to determine whether or not
the expression at issue, including its place, time, and manner, promotes one of the
purposes underlying the guarantee of freedom of speech. McLachlin J. determined that
where the restriction involves state-owned property, that examination will focus on
whether the forum's relationship with the particular expressive activity invokes any of the
values and principles underlying the guarantee.
¶ 40 The Supreme Court of Canada used the Commonwealth of Canada case to
articulate in a broader-than-usual fashion the values behind expression, focussing mostly,
but not entirely upon political expression. Some of those comments are relevant to the
issues in the instant case.
¶ 41 Lamer C.J. for himself and Sopinka J. stated at pp.157-158:
...
In my view, if the expression takes a form that contravenes or is
inconsistent with the function of the place where the attempt to
communicate is made, such a form of expression must be considered to fall
outside the sphere of s.2(b). For example, if a person tried to picket in the
middle of a busy highway or to set up barricades on a bridge, it might well
be concluded that such a form of expression in such a place is incompatible
with the principal function of the place, which is to provide for the smooth
flow of automobile traffic. In such a case, it could not be concluded that
freedom of expression had been restricted if a government representative
obliged the picketer to express himself elsewhere.
Accordingly, it is only after the complainant has proved that his form of
expression is compatible with the function of the place that the
justifications which may be put forward under s.1 of the Charter can be
analysed. While the state's main interest is to ensure the effective operation
of its property, that is not its only concern; there is, for example, the
maintenance of law and order, which is another government objective that
might justify certain limitations on s.2(b). For example, the person
presiding over a municipal assembly will generally be justified in limiting
the time each member has to speak in order to allow everyone a chance to
speak in an orderly manner. In my opinion, such a concern comes under
s.1 of the Charter, as do many others.
¶ 42 While concluding that there was a limitation in that case upon the respondents'
freedom of expression, Lamer C.J. determined that the difficulty lay not with the rules of

24. the airport but rather with the actions of the airport manager and thus no s.1 justification
was possible. At p.164 he stated:
In my opinion, the limitation imposed on the respondents' freedom of
expression arose from the action taken by the airport manager, a
government official, when he ordered the respondents to cease their
activities. Although this action was based on an established policy or
internal directive, I do not think it can be concluded from this that there
was in fact a 'law' which could be justified under s.1 of the Charter. The
government's internal directives or policies differ essentially from statutes
and regulations in that they are generally not published and so are not
known to the public. Moreover, they are binding only on government
officials and may be amended or cancelled at will. For these reasons, the
established policy of the government cannot be the subject of the test under
s.1 of the Charter.
3. Conclusion
In short, I conclude that the respondents' activities at the Dorval airport
benefit from the protection of s.2(b) of the Charter. The freedom of
expression enjoyed by the respondents was limited by the order of the
airport manager to cease the said activities. In the absence of a 'limit
prescribed by law,' this limitation cannot be justified under s.1 of the
Charter.
...
¶ 43 L'Heureux-Dubé J. viewed the issue in Commonwealth of Canada as a "'classic'
confrontation between the acknowledged value of political expression and legitimate
government interests in imposing certain restrictions on expression generally" (p.166). In
her review of scholastic and jurisprudential comment on free speech she stated at
pp.174-175:
Freedom of expression, like freedom of religion, serves to anchor the very
essence of our democratic political and societal structure. As expressed by
Jackson J. in West Virginia State Board of Education v. Barnette, 319 U.S.
624 (1943), at p.642, '[i]f there is any fixed star in our constitutional
constellation, it is that no official, high or petty, can prescribe what shall be
orthodox in politics, nationalism, religion, or other matters of opinion or
force citizens to confess by word or act their faith therein.' Robert J.
Sharpe explains the futility of basing this axiom merely upon some
yearning for ultimate truth, in 'Commercial Expression and the Charter'
(1987), 37 U.T.L.J. 229, at p.236:
The essence of the market-place of ideas argument is that control
and regulation of expression is intolerable because we can trust no

25. government to know the truth. Those who purport to legislate the
truth invariably turn out to be tyrants. The market-place of ideas
argument prescribes an open process precisely because we cannot
agree on what is the truth. [Emphasis added.]
¶ 44 And at p. 191:
If we examine the traditional standards implemented to evaluate the
reasonableness of time, place, and manner restrictions in other jurisdictions
(notably the United States), we find that generally the burden of proof lies
on the government and the criteria are remarkably similar to the s.1
language. In Canada, no other approach would be consistent with the
broad construction of s.2(b). If the government wants to impose time,
place, and manner limitations on the ambit of nonviolent expression, it
must bear the burden of justifying these encumbrances. Such interdiction
may be rational, but the government must substantiate its legitimacy.
¶ 45 She found the rules to be inconsistent with s.2(b) of the Charter and the
provisions not to be a reasonable limit under s.1. Gonthier and Cory JJ. agreed with this
outcome for slightly different reasons.
¶ 46 In her reasons, McLachlin J. stated at p. 230:
The jurisprudence supports the view that the state's property interest in a
forum does not give it the absolute right to control expression on that
forum. ...
¶ 47 In the Supreme Court's recent decision of R. v. Guignard, [2002] S.C.J. No. 16,
2002 SCC 14, the court unanimously found that a municipal by-law restricting signs
violated an individual's right of free expression in the circumstances of that case and was
not justified under s.1. Although acknowledging that the by-law was meant to control
sign clutter, the court again articulated the need to look behind the purported purpose to
determine whether or not the real purpose was to place a limit upon expression. Such a
limitation was found.
¶ 48 It is in the context of these comments about freedom of expression that the facts
in the instant case must be reviewed.
Application of law to facts
1. Protected Speech
¶ 49 The first aspect of the test set out in Irwin Toy is a determination of whether or
not the activity at issue may properly be characterized as expression within the meaning
of s.2(b) of the Charter. As noted above, expression consists of both content and form;
an activity is expressive if it attempts to convey meaning. The trial judge "assumed" that

26. the appellant's actions had expressive content without deciding the issue. The
respondent's position on appeal was that the appellant as a teacher had no right of free
expression protected by s.2(b) of the Charter.
¶ 50 The impugned acts in the instant case involve (1) the prohibition, by both the
vice-principal and the principal of the school where the appellant was teaching, of the
showing of the film, and, consequently, the carrying out of the proposed assignment, and
(2) the School Board's ultimate decision that the film could be shown and the project
carried out only if the appellant prepared it in a manner that was suitable to the principal
and the Superintendent of Programs.
¶ 51 No one attempted to argue that the actions of the principal, vice principal and
board were not governmental actions to which the Charter applies. Certainly, the
Commonwealth of Canada case indicates that persons acting for government - authorized
institutions, even if their actions go beyond carrying out government policy, can be found
to breach rights under s.2(b) of the Charter.
¶ 52 In Keegstra, the comments at issue were made by a teacher in a classroom to
students with the intention that they "learn" his views and repeat them back to him as the
correct answers on exams. This context for his hate propaganda - the classroom where he
is in control of students and responsible for their well-being - is never mentioned once in
the 155 pages of text of the decision, neither by the majority nor the dissenting judges,
except as factual background. Even though context is mentioned as relevant to the
analysis being done in the initial stages of the inquiry - whether this is protected speech
falling within s.(2)(b) of the Charter - the fact that Mr. Keegstra expressed these views in
carrying out his role as a teacher was never raised as a possible reason for denying him a
s.2(b) right.
¶ 53 There appears to have been no attempt to argue in that case that teachers do not
have a right of expression protected by s.2(b). The question dealt with was whether
s.319(2) of the Criminal Code unjustifiably infringed his freedom of expression as
guaranteed by s.2(b).
¶ 54 Keegstra, in my view, should be considered decisive on this issue. As stated by
Dickson C.J. in that case:
[32] ... It is enough that those who publicly and wilfully promote hatred
convey or attempt to convey a meaning, and it must therefore be
concluded that the first step of the Irwin Toy test is satisfied.
¶ 55 Surely this means, in the context of the case before me, that the appellant was
attempting to convey a meaning when he chose the film "Thy Kingdom Come, Thy will
be Done" as the catalyst and discussion point for his class project.
¶ 56 The appellant's desire to show the film and to use that film as a catalyst for a
project entitled "What Religion means to Different People" is clearly an attempt to

27. convey a meaning. It is activity that is expressive of the appellant's beliefs in what is an
appropriate topic and an appropriate vehicle for his teaching activity. The appellant was
attempting, through the film and assignment, to communicate certain information and
opinions that would stimulate discussion and challenge his students. To a certain extent,
the response to the film - why we are here today - affirms that the film had expressive
content. The content - both subject matter and presentation - were what concerned the
principal and vice-principal and caused them to prohibit the showing or discussion of the
film.
¶ 57 The broad and liberal interpretation of the Charter's freedoms is shown by the
great variety of forms of expression that have been held to be encompassed by s.2(b).
They include the solicitations of a prostitute (Reference re ss.193 and 195.1(1)(c) supra),
advertising to children (Irwin Toy), the language of signs in Quebec (Ford), the hate
propaganda of a teacher (Keegstra), airport regulations prohibiting soliciting on airport
premises (Commonwealth of Canada), and a municipal sign law (Guignard).
¶ 58 Surely teachers engaged in their profession of teaching can't be found to have no
right of free expression, while advertisers do have such a right, and even prostitutes
carrying out their profession have such a right.
¶ 59 The decision of this court in Walker v. Prince Edward Island (1993), 107 D.L.R.
(4th) 69, affirmed by the Supreme Court of Canada ([1995] 2 S.C.R. 407) does not limit
the overall breadth of these s.2(b) cases. In that case, certified general accountants
(CGAs) challenged a provision in the Public Accounting and Auditing Act, R.S.P.E.I.
1988, c.P-28, which limited the right to practice public accounting for compensation to
members of the Institute of Chartered Accountants. One basis for the challenge was an
argument that the provision violated the freedom of expression (s.2(b) of the Charter)
rights of the CGA's. This Court found that while the reporting functions of public
accounting and auditing may fall within the scope of s.2(b) as "expression," the purpose
was not to prohibit an expression of these views but rather to restrict the manner of that
expression, i.e. representing themselves as public accountants. The Court then went on to
show that in any event such a restriction was justified under s. 1 of the Charter.
¶ 60 The Supreme Court, without explanation, found no restriction to the ss. 2(b), 6
and 7 Charter rights in that case. Without an explanation from that court, it is difficult to
articulate the basis for this finding. It may be connected with the fact that a licensing
function was involved or that a specific type of profession sought protection. In any
event, this finding does not limit the breadth of the Supreme Court's s.2(b) findings
generally. Neither does it alter the decision in Keegstra which found a s.2(b) restriction
connected with a teacher's views expressed in the classroom.
¶ 61 The respondent on appeal attempted to argue that teachers have no free
expression rights and cited a recent U.S. authority. Clearly, U.S. and Canadian
constitutional principles are not identical and have developed different methods of
dealing with protected freedoms. The statements of the 7-6 majority in Boring v.
Buncombe County Board of Educational et al (1998), 136 F. 3d 364 (USA), cannot

28. detract from the large and liberal interpretation fostered by our Supreme Court in dealing
with these freedoms.
¶ 62 One obvious reason for the difference between the United States and Canadian
jurisprudence is the existence of s.1 of the Charter which enables a justification of a
limitation on our Charter freedoms:
1. The Canadian Charter of Rights and Freedoms guarantees the rights
and freedoms set out in it subject only to such reasonable limits
prescribed by law as can be demonstrably justified in a free and
democratic society.
The lack of any such ability to place a limit on a freedom in the U.S. has required a
completely different development of the law. In the U.S. the right must contain within it
any limitations that are considered socially justifiable, because there is no s.1 equivalent
to allow for a reasonable limitation on the right, once the right is found to exist.
¶ 63 With this in mind, it is interesting to note the cases brought forward by the
appellant from the U.S. regarding free speech and teachers: Shumate v. Board of
Education of County of Jackson 478 F. 2d 233 (1973) (U.S.C.A. 4th Circuit); Parducci v.
Ruthland, 316 F. Supp. 352 (1970) (U.S. District Court); Keefe v. Geanokos, 418 F. 2d
359 (1969) (U.S.C.A., 1st Circuit); and Pickering v. Board of Education, 391 U.S. 563
(1968), (U.S.S.C.). The latter case involved a teacher who was dismissed because of
publication of a letter criticizing the board of education and superintendent of
schools. Shumate involved an untenured teacher whose contract was not renewed,
apparently because of his controversial activities with an education association. Parducci
involved a teacher who was dismissed because of an assignment she gave to her class that
school officials disagreed with. Keefe relates to a tenured teacher whose employment
was threatened for use of what was termed an "offending word" in class. In Keefe and
Parducci the school officials took the position they knew best what was appropriate and
inappropriate in the classroom. Courts in all cases affirmed that teachers have both an
inherent right of free speech, a First Amendment right in the United States, as individuals
and a right of academic freedom derived from that right of free speech. In Keefe, Adrich
C.J. stated at pp.361-362:
Hence the question in this case is whether a teacher may, for demonstrated
educational purposes, quote a 'dirty' word currently used in order to give
special offense, or whether the shock is too great for high school seniors to
stand. If the answer were that the students must be protected from such
exposure, we would fear for their future. We do not question the good
faith of the defendants in believing that some parents have been
offended. With the greatest of respect to such parents, their sensibilities
are not the full measure of what is proper education.
¶ 64 He then went on to deplore the general chilling effect of rigorous censorship,
referring at p.362 to the following quotation:

29. 9. Such unwarranted inhibition upon the free spirit of teachers affects
not only those who, like the appellants, are immediately before the
court. It has an unmistakable tendency to chill that free play of the
spirit which all teachers ought especially to cultivate and practice ...
Frankfurter J. concurring, in Wieman v. Updegraff, 1952, 344 U.S.
183, 194, 195, 73 S.Ct. 215, 221, 97 L.Ed. 216.
¶ 65 In Parducci Johnson C.J. in the decision of the court states at pp.354-355:
[1] That teachers are entitled to First Amendment freedoms is an issue
no longer in dispute. 'It can hardly be argued that either students or
teachers shed their constitutional rights to freedom of speech or
expression at the schoolhouse gate.' Tinker v. Des Moines
Independent Community School District, 393 U.S. 503, 506, 89
S.Ct. 733, 736, 21 L.Ed. 2d 731 (1969); see Pickering v. Board of
Education, etc., 391 U.S. 563, 568, 88 S.Ct. 1731, 20 L.Ed. 2d 811
(1968); Pred v. Board of Public Instruction, etc., 415 F. 2d 851, 855
(5th Cir. 1969). These constitutional protections are unaffected by
the presence or absence of tenure under state law. McLaughlin v.
Tilendis, 398 F. 2d 287 (7th Cir. 1968); Johnson v. Branch, 369 F.
2d 177 (4th Cir. 1966), cert. denied, 385 U.S. 1003, 87 S.Ct. 706, 17
L.Ed. 2d 542 (1967).
[2] Although academic freedom is not one of the enumerated rights of
the First Amendment, the Supreme Court has on numerous occasions
emphasized that the right to teach, to inquire, to evaluate and to
study is fundamental to a democratic society. In holding a New
York loyalty oath statute unconstitutionally vague, the Court stressed
the need to expose students to a robust exchange of ideas in the
classroom:
Our nation is deeply committed to safeguarding academic
freedom, which is of transcendent value to all of us and not
merely to the teachers concerned. That freedom is therefore a
special concern of the First Amendment, which does not
tolerate laws that cast a pall of orthodoxy over the classroom.
* * * The classroom is peculiarly the 'marketplace of ideas.'
Furthermore, the safeguards of the First Amendment will quickly be
brought into play to protect the right of academic freedom because
any unwarranted invasion of this right will tend to have a chilling
effect on the exercise of the right by other teachers. Cf. Wieman v.
Updegraff, 344 U.S. at 194, 195, 73 S.Ct. 215 (Frankfurter J.
concurring); Pickering v. Board of Education, etc. supra 391 U.S. at
574, 88 S.Ct. 1731.

30. [3] The right to academic freedom, however, like all other constitutional
rights, is not absolute and must be balanced against the competing
interests of society. This Court is keenly aware of the state's vital
interest in protecting the impressionable minds of its young people
from any form of extreme propagandism in the classroom. ...
¶ 66 This last paragraph relates to that part of the analytical process analogous to the
Canadian s.1 Charter justification for a limitation of a guaranteed freedom. With little
change, most of these comments could be found applicable to the Canadian Charter right
of freedom of expression as it relates to teachers.
¶ 67 If part of the value behind freedom of expression as set out in s.2(b) includes a
consideration of the importance of that expression to those who are the recipients of the
content (see: Irwin Toy), then the school context raises special issues. This becomes
partially a right of students in a democratic society to have access to free expression by
their teachers - encouraging diversity, critical thinking and vigorous debate. While
Boring, supra does not take that same view, there are some factors to consider. First, the
majority decision refers to the case as the first one to deal with the issue of a teacher's
free speech right to participate in curriculum development. Second, the majority of 7
judges was opposed by a minority of 6 judges who felt there was such a free speech right
in teachers.
¶ 68 The fact that the appellant was not a tenured teacher has no relevance to this
analysis. The right of expression exists within each person who is attempting to convey
some meaning by his or her activity. The official status of such a person can have no
relevance at this stage of the analysis. The appellant attempts to argue that the failure to
renew his contract is evidence of breach of his right of freedom of expression. He bases
his view in part on comments in Shumate. There the court referred to a then-recent
Supreme Court decision and stated at p.234:
...As it was with Sindermann, the critical question here is whether the
board's decision not to renew Shumate's contract was made in retaliation
for his exercise of his free speech rights. The absence of any contractual or
tenure right does not affect Shumate's constitutional claims. ...
¶ 69 In Shumate there does appear to be a connection between the non-renewal of his
contract and the breach of his right of free expression; there was no other action taken by
the school officials that would constitute a limitation on Shumate's free speech
right. School officials did nothing immediately but then failed to renew his contract. The
Court found a cause of action in these circumstances: a violation of Shumate's
constitutional right of free expression.
¶ 70 In the instant case, however, the prohibition against showing the film and
carrying out the project was the limitation. The issue of whether or not the appellant's
failure to obtain employment with the Board the following year was in retaliation for his
defence of his free expression rights then becomes an issue relating to damages.

31. ¶ 71 The respondent's position that a teacher can have no right of free expression
because control of schools must rest in principals, whether they act reasonably or not, is
tenable neither in logic nor in law. The argument that if teachers are found to have such a
right there will be chaos in the school system, because all principals' decisions will end
up being decided by the courts, is also not tenable. Even the appellant acknowledged that
within the structure of the school system there must be rules and regulations, curriculum
and programming guidelines. What he was arguing for was a reasonable approach. If
these rules or regulations limited free expression, they would be justifiable under s.1 of
the Charter. Thus, only actions by school authorities that were alleged to go beyond any
s.1 justifiable limitations would be challengeable. This is a rational approach to the
balance between rights and limitations thereon.
¶ 72 The respondent's position, that there would be no resort to s.1 because to allow
for a right of free expression in teachers would totally disrupt the school system, is
extreme and an attempt to deny a Charter right out of fear that to acknowledge the right
would be to acknowledge the requirement that limitations on it must be reasonable and
cannot be arbitrary. This is not a basis for denying a clear Charter right of freedom of
expression. There is simply no foundation for an argument that because a teacher is under
the supervision and direction of a principal, he has no free expression rights - everything
he does is subject to control by the principal, whether reasonable or not. The Supreme
Court has found that even where laws are meant to "supervise" or "direct" or "limit"
actions of Canadians, those laws which limit rights of expression must be justified under
s.1. (See: Irwin Toy, Reference re ss. 193 and 195.1(1)(c) , Keegstra.) Surely principals
don't have authority greater than the law.
¶ 73 As well, nothing in Ross v. New Brunswick School District No. 15, [1996] 1
S.C.R. 825, [1996] S.C.J. No. 40, suggests that a teacher has no expressive rights in his or
her capacity as a teacher, or that restrictions on those rights don't need to be justified
pursuant to s.1 of the Charter. The facts of Ross, and the "poisoned" school environment
found in that case, are inapplicable to the case before me. As for the concerns in Ross
about the social values teachers are expected to impart, the facts of the instant case
suggest that the appellant was attempting to teach the critical thinking and analytical
skills essential to citizens in any democracy. His choice of religion as a subject for this
process was not in and of itself a discriminatory or negative act. He was not attempting
to teach any particular religious view. He was dealing with religion as an important
element in society, one representative of our society's diversity, and in doing so was
teaching in a manner consistent with the approved curriculum. As he noted, the story of
Anne Frank had been the subject of an earlier project and the subject of religion was in
fact found in the textbooks he was using. The textbook Les Maritimes: Trois Province á
Découvrir includes in Chapter Three a discussion about the role and influence of
religious institutions in the Maritimes. The text Maritimes: Tradition, Challenges &
Change includes as part of Chapter Three, "Our Changing Social Institutions: The Church
in Prince Edward Island."
¶ 74 The film the appellant sought to use as a catalyst for his project did focus upon
fundamentalist religious groups. It was illustrative of a number of social issues. The

32. three members of the provincial Junior High Language Arts Committee all agreed that
the assignment was appropriate for the appellant's class. They suggested there were some
concerns about the way it was presented but noted that different teachers handle matters
differently. As reported in the Minutes of the May 19, 1988 Curriculum Committee
meeting:
Mary Thomas provided comments as a member of the Junior High
Curriculum Committee, with regards to the assignment only, not the
video. She indicated her involvement based on presentations made by
Richard Morin and her understanding of the language arts curriculum for
junior high, and stated her feeling that the assignment was appropriate
based on the skills it asked the students to exercise - interview, research,
and critical thinking - as used in the Context and Bridges components of
the junior high program. It was Ms. Thomas's understanding that the
students didn't receive any explanatory comments at the time and that the
assignment was given verbally, and as she didn't hear from anyone who
actually heard the assignment, she would not make a judgement on
that. Ms. Thomas indicated that the methodology of the question itself
are[sic] things required of Grade 9 students in language arts. On the
question of whether it fit into the language arts curriculum, Ms. Thomas
stated that it was not offensive and neither made a judgement against any
one religion or promoted any one religion. She indicated that she could not
say whether the teacher went against or promoted any religion as she had
no evidence to base it on. The question did not ask the individual student
to express what they themselves felt about religion, it was a survey. Ms.
Thomas stated that the assignment did fit in with the language arts
curriculum, as it asked the students to use questioning skills and critical
thinking about issues, and to take comments and information to use as a
base for a written report. Ms. Thomas indicated that she did not address
her comments towards the video, people involved or how the situation
arose or was handled.
...
Ms. Steeves [another member of the provincial Junior High Language Arts
Curriculum Committee] felt the assignment was appropriate given the
topics discussed previously in the classroom. She also felt the assignment
was appropriate given the type of student in the Grade 9 class as the
average was 87.5%. She felt the assignment would be very suitable for
that type of student. She stated that the actual question of the assignment
was in no way a judgement statement, simply a question. Ms. Steeves
indicated that she did not know what the teacher said as introduction to the
video, but she regarded the video as complex. She felt there were no right
or wrong impressions of the video, it would depend on everyone's different
viewpoints. She indicated a need for the students to discuss the video from
their own point of view, and hear their peer questions, as well as their

33. teacher's questions on the video. She felt they were central to the video
and should have happened - it never should have been cut off. Ms. Steeves
understood the video was used as a catalyst, and having no discussion
would raise many questions. The fact that students were not allowed to ask
questions would only increase their questions.
...
With regards to planning, Ms. Steeves indicated that it is not a static thing.
You cannot judge someone on how quickly or slowly they plan.
¶ 75 The appellant produced case law and made extensive arguments about the need,
in a democratic society, to protect teachers' freedom to teach in a manner that stimulates
and encourages the exchange of opinions and ideas. Such values are inherently within the
rationale behind the Supreme Court's liberal approach to the interpretation of the
Charter's scope of protected speech, and are shown to a certain extent in the Supreme
Court's comments in the Commonwealth of Canada. However, those comments and
authorities are most relevant to a s.1 analysis and there is none in the case before me.
¶ 76 In conclusion, as in Irwin Toy, the plaintiff/appellant's activity is not excluded
from the sphere of conduct protected by freedom of expression.
2. Purpose or Effect
¶ 77 Where the activity at issue is classified as protected speech under the first part of
the test in Irwin Toy, the second part of the test requires a determination of whether or
not the purpose or effect of the impugned act was to restrict the appellant's freedom of
expression.
Purpose
¶ 78 As to whether or not the intent of the impugned actions was to restrict the
expression of the appellant, the respondent argues that the intent was rather to ensure that
the authorized teaching program was followed, and that planning, preparation, and
relevance objectives were met. An argument was also made that the principal has a
responsibility to "protect" the students, so control over content is essential.
¶ 79 If the latter argument is to prevail, then there is an implicit admission that the
direct purpose of the prohibition was to control the content the appellant wished to
express - simply justified by the need to protect students.
¶ 80 Again, I point out that the respondent's counsel on appeal made it unequivocally
clear to the court that the respondent's position did not in any way rely upon s.1. The
respondent stated that there was no need for a s.1 justification so none was being put
before the court. As a result, the analysis before the court is whether limitations were

34. placed upon the free expression rights of the appellant, not whether the limitations on his
freedom of expression were justified.
¶ 81 With respect, it appears that the respondent and to some extent the trial judge,
have misunderstood the Supreme Court's views on how one determines whether the
purpose of an impugned act was a restriction on expression. The Court has warned
against attempts to clothe the intent to control content in the garb of some higher
purpose. The Court has more than once noted that all governmental action will be said to
have a purpose other than restriction of expression. But if the primary purpose is in
reality a restriction on expressive activity, then the other "higher purpose" must be
viewed as part of a justification under s.1.
¶ 82 Once again I note the numerous and varied cases in which the Supreme Court has
found a purpose of restricting expression requiring a justification under s.1. While
restricting the rights of prostitutes to express themselves by offers of their services may
have many socially valuable purposes, the primary intent of legislation against
solicitation is to prevent prostitutes from making those offers, i.e. prevent them from
expressing their offers (Reference re ss. 193 and 195.1(1)(c)). The government could
justify the restriction under s.1 but could not establish those social values as the primary
purpose of the law. With respect to commercial free speech - also protected under s.2(b)
- in Irwin Toy the argument that the protection of children was the purpose of the laws
did not prevail. From an analytical perspective, the Court found the purpose was to
restrict what the advertisers wished to express. The reasons behind that restriction were
appropriate for a s.1 analysis, not a determination of the purpose. The same analysis
explains Keegstra. The purpose of the law was to prevent a person from expressing the
views he expressed, i.e. limiting his right of free expression. The values behind - reasons
for - the law were part of the s.1 analysis.
¶ 83 There is a suggestion throughout the Board's presentation that an employee has
no freedom of expression rights, or that as long as an employer/supervisor takes the
position that he has some other reasons for limiting expression then the "purpose" of the
limitation is not a restriction on expression.
¶ 84 The case law in this area shows a very broad and liberal interpretation of the free
expression right. While the "secondary" purpose of a rule/act may often be of a more
general nature, an act or rule that tries to limit what can be expressed has as its primary
purpose a restriction on what can be expressed and so is in breach of s.2(b).
¶ 85 The rationale for this view of the law is clear. Because of the existence of a
mechanism for justification in s.1 of the Charter, there is no good policy reason to refer to
the justification for a limitation on expression in the first part of the analysis. If what you
want to do or say has expressive content and the rule/act in opposition is intended to
prevent or limit your ability to do or say what you want, then this is a free expression
restriction no matter what the "higher justification." The "higher justification" may save
the rule/act from being a breach of your s.2(b) right if it meets the requirements of s.1.

35. ¶ 86 That the purpose and intent of the principal and vice-principal in the instant case
was to limit the content of what was expressed by the appellant in the classroom is clear
from this analysis. Various comments in the evidence produced at trial reaffirm that
purpose. For example, the notes of the Curriculum Committee meeting of May 17, 1988,
report in detail the principal's (George MacDonald's) view of the incident approximately
five weeks after it had occurred:
Mr. MacDonald questioned the purpose of the assignment and whether Mr.
Morin could justify the assignment ...
Mr. MacDonald informed Mr. Morin that he was not satisfied and did not
feel the assignment was age appropriate and that the topic was personal,
concerning the parents, the students and their God, not Mr. Morin.
...
...The assignment caused anxiety in students and parents, and two students
went home in tears. Mr. MacDonald felt the assignment was sensitive in
nature and a number of parents registered their concerns. Parents did not
wish alien influences outside the authorized course of studies imposed on
the students.
...
Mr. MacDonald stated that he had seen the video and had nothing personal
against it but the students didn't appear to understand it. People across the
community and children of fundamentalists were offended by the film. ...
...
In response to a question, Mr. MacDonald indicated that Mr. Morin teaches
language arts to 61 students, and letters were received from 8 parents [two
in support]. Mrs. Duffy asked whether the curriculum and assignments in a
school should reflect the values in the community and Mr. MacDonald
agreed that parents have a role and a right in terms of what is being
taught. He considers the school community to include the students and the
parents. His initial reaction was that the parents wanted the assignment
withdrawn.
...
Mrs. Scott stated that in the program, teachers are recommended to use
other outside services. Mr. MacDonald indicated he understood this, but
he thought the series authorization given [sic] teachers ample opportunity.
Mr. MacDonald felt that Mr. Morin went beyond the parameter of the
program in terms of research skills.