Running head: THE LAW ASSIGNMENT 1

EDUC 525 L01

The Law Assignment

Submitted on October 17, 2018

Greenhall, Melissa

Mayne, Courtney

Mangat, Daisy

Mckay, Emily

Slavik, Andra
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When examining Philip Kapoor’s right to freedom of speech under section 2(b) of the

Charter of Rights and Freedoms ​(Charter of Rights and Freedoms, 1982, s. 2(b)), it is

important to consider the events that took place from the start of his teaching career to the ones

that led up to the Remembrance Day incident. A critical part of our arguments for and against

Kapoor is a dissection of section 2(b) of the ​Charters of Rights and Freedoms ​(Charter of

Rights and Freedoms, 1982, s. 2(b)) and the application of the ​Oakes test​, that result in a better

understanding of the entirety of this case. Throughout this paper we will also consider the case

laws studied in class and their significance to the Kapoor case.

Philip Kapoor was a grade 6 teacher at Stardust Elementary in Fort McMurray. He was

described as warm, friendly and excited to shape the minds of his students. As a teacher,

Kapoor had a passion to teach his student's the influence of social, political and economic

systems and how we are able to create a collective well-being for all in our world. In his efforts

to offer his students a balanced perspective of war he offered a pacifist view where any parties

involved have some level of responsibility. Under section 2(b) of the ​Charter of Rights and

Freedoms (​ Charter of Rights and Freedoms, 1982, s.(b)), Kapoor is allowed to have the

“freedom of thought, belief, opinion and expression, including freedom of the press and other

media of communication” (Charter of Rights and Freedoms, 1982, s. 2(b)). This includes his

freedom to express his ideas and critique various events in history. Additionally, Kapoor did

not instruct his student's to protest the Remembrance Day Ceremony. He simply encouraged

his students to use their voices in order to incite social change however they see fit. The protest

at City Hall on Remembrance Day was the product of student activism and engagement which

was not planned by Mr. Kapoor. Under the ​Charter of Rights and Freedoms (​ Charter of Rights
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and Freedoms, 1982, s. 2 (b)), student's in Canadian schools have the right to Freedom of

Expression, and becauses the protest was neither violent or espoused hatred the students are

protected under 2C as stated “freedom of peaceful assembly” (​Charter of Right and Freedoms,

1982, s. 2(c)).

When examining the James Keegstra case, (R. v. Keegstra. EDUC 525, September 18

2018, 52- 55) he was charged under then section 319(2) under the ​Criminal Code (​ Charter of

Rights and Freedoms, 1982, s.2(b)) of Canada for inciting hatred through teaching. In contrast

to Keegstra’s case, it can be argued that Kapoor should not be considered for this charge

because he did not incite hatred. Furthermore, referring to the defenses presented in the

Keegstra case, Kapoor’s content in his lessons and speech were relevant to the subject students

were learning about and that he found this information beneficial to his students. Kapoor also

believed these statements to be true. Taken together, these defenses suggest that Kapoor cannot

be convicted under subsection 2 of the ​Criminal Code​ (Criminal code, 1985, s. 2)​ ​ and is still

maintains his ​Charter of Rights ​of section​ 2​ (B) (Charter of Rights and Freedoms, 1982, s.2(b)).

Therefore, the school board does not have a right to suspend Mr. Kapoor from his teaching

duties on the basis of inciting hatred.

Furthermore, in the case of Morin (Morin v. Regional Administration Unit #3(P.E.I.)

EDUC 525, September 18 2018, 94-97), the court appealed in his favor in regards to his

freedom of speech under his religious rights. Morin’s ​Charter Rights​ (Charter of Rights and

Freedoms,1982, s.2(b)) were upheld because as an educator, it was reasonable to share his

religious beliefs with his students. This is similar to Kapoor who shared his belief of pacifism

with his student's which he argued was relevant to the content being taught. As Morin was
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covered under section 2(b) of the charter, the same should be applied to Kapoor as he was also

restricted by school administrators. When comparing the Kapoor case to the Keegstra and

Morin case, it can be deduced that it was within Kapoor’s rights to express his ideological

leanings within the classroom setting. Additionally, his beliefs were relevant to the course

material and did not incite hatred in any way. Therefore, the school board infringed on

Kapoor’s second amendment rights by suspending him when he refused to apologize to the

parents and student's for his words.

Although there is evidence supporting Kapoor, there are many aspects that support

arguments against him. In order to determine whether Mr. Kapoor’s section rights from the

Charter of Rights and Freedoms​ have been violated we must apply the ​Oakes Test​. Section 1

of the ​Charter of Rights and Freedoms ​(Charter of Rights and Freedoms, 1982, s.2(b)) states

that while the rights and freedoms are guaranteed for people, it is subject to “reasonable limits

prescribed by law as can be demonstrably justified in a free and democratic society” (Charter

of Rights and Freedoms, 1982, s. 2(b)). We can conclude that Mr. Kapoor’s rights of freedom

of speech were infringed upon, however it does not hold up to the ​Oakes Test.​ The first

question of the ​Oakes Test​ asks if the action taken by the school board was reasonable. In the

case of Mr. Kapoor the school was justified in removing him from his teaching responsibilities

because of his refusal of apologize to both students and parents. The test also poses the

question of rational connection to the objective. In other words, is the punishment connected to

the violation committed by the person in question? The punishment of suspension is in

proportion to Kapoor’s violation and is directly connected to his actions. This is a rational and

logical punishment for both parties in light of the situation.

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The ​Oakes Test a​ sks if the school was justified in limiting Mr. Kapoor’s Charter Rights,

as he is still entitled to his opinion and right to free speech. As the school gave Mr. Kapoor an

opportunity to apologize for his actions, this does not infringe upon his rights to freedom of

thought or speech as he may believe what he likes on his own time. Alternately, as Mr. Kapoor

is in a position of power as a teacher, and given the age of his student's who are

impressionable, he must uphold a standard of moral character for his student's. As a result, the

school is justified to impair the right in question in order to achieve a reasonable objective; the

objective being students’ access to accurate, unbiased information. Lastly, the ​Oakes Test

challenges the validity of the punishment handed insofar as it infringes on an individual’s

rights. As explained above, Mr. Kapoor’s suspension can be revoked in exchange for an

apology for his actions, not for the abandonment of his personally justified beliefs. The school

is justified in requesting an apology for the persons affected in this incident.

In the case of Ross vs New Brunswick School District, (Ross v. New Brunswick School

District No. 15. EDUC 525, September 18th 2018, 56-82) it was argued that public school

teachers are in a position of trust and influence, and must appear impartial and tolerant. It is

also important to highlight that the school board has the duty to maintain a positive school

environment. It may be concluded, as it was in Ross’s case, that Kapoor did not fulfill his duty

as a teacher to appear impartial and tolerant. Furthermore, the school board acted appropriately

in suspending Kapoor to help maintain a positive environment at the school. It can be

concluded that Kapoor’s rights are subject to reasonable limits and can be infringed upon

because he did not fulfil his duties as a teacher, therefore influencing his students to take part
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in an event which infringed on the Charter rights of others who were at the Remembrance Day

ceremony.

Kapoor’s case emphasises the difficulty of navigating cases that involve the ​Charter of

Rights and Freedoms​ (Charter of Rights and Freedoms, 1982, s. 2(b)) due to their multifaceted

nature. It is difficult to reconcile opinions about when and how one’s rights may be infringed

upon, and to interpret the boundaries within which actions of “reasonable” people fit into. In

the previously mentioned cases, it is evident that both sides of each disagreement can make a

case by referencing the Charter as well as the rights of students, teachers, parents, and

administrators within a school setting. As teachers in the professional realm we must consider

the extent to which our opinions influence our students and must ensure that we are using our

authority responsibly. By recognising that ​The Charter of Rights and Freedoms (​ Charter of

Rights and Freedoms, 1982, s.2 (b)) was written as a live document which allows for fluidity of

limits and interpretations, a parallel can be drawn to our teaching practice. Just as society

places trust in the arbiters of law to deliver justice using their own knowledge and

interpretation of the limits of the Charter of Rights and Freedoms, educators are trusted to

deliver curriculum using our own methods and judgements. In conclusion, the ​Oakes t​ est was

applied appropriately when considering Kapoor’s actions as those that would have been

executed by a reasonable person in an authoritative position and Charter Rights were

maintained for Kapoor, his students and the persons at the Memorial Day service as fairly as

possible.
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References

Canadian Charter of Rights and Freedom​s,​ SC 1982, c. 11, s. 2

Criminal Code, ​ RSC 1985, c. C - 46, s. 2

Levy, D. (2018). Ethics and laws in education. ​Education 525 Ethics and the law powerpoint.

(September 13, 2018). University of Calgary. Canada. Retrieved from

https://d2l.ucalgary.ca/d2l/le/content/234353/viewContent/3157404/View