EDUC 525 – Learning Task 1
Remembrance Day Question
Caroline Bachmann
Taylor Opas
Lourie Scarcelli
Emily Stanford
University of Calgary
Introduction
The situation before us today concerns Mr. Kapoor's conduct at Stardust Elementary
School on November 9th, 2019. It is alleged that his comments during a social studies lesson on
war crimes and social activism inspired a group of grades six students to openly protest a Fort
MacMurray Remembrance Day ceremony. As a result, Kapoor was directed to
apologize to parent community and explain to his students that he was wrong to disrespect
Canada’s military service. Kapoor had refused both directions and faces suspension from
teaching until he complies with the school board directive. Such measures are an overt breach of
Kapoor's right to freedom of speech protected by Section 2(b) of the Charter and his claim to
“professional autonomy” upheld by the Alberta Teachers Association (2012). This paper will
argue whether such a breach is constitutional is saved by section 1 of the charter with specific
reference to the Oakes test, Alberta Teachers’ Association policy, and case studies reviewed in
class.
Rational
Arguments in Favor of Charter Section 2(b)
The first clause of the Oakes test states that there must be a rational connection between
the order and objective. The measures must not be “arbitrary, unfair, or based on irrational
considerations” (Donlevy, n.d.a). In this case, Kapoor’s mandated apology
and subsequent suspension when he refused to comply was intended to halt the promotion of
hatred/defamation and prevent a teacher from taking advantage of a position of trust to give rise
to student action. However, we hold that the disciplinary actions and limits placed on Kapoor’s
constitutional rights are based on irrational considerations and do not achieve the
intended objectives for two reasons as follow:
First, Kapoor’s comments do not classify as hate speech or defamation and therefore his
freedom of speech cannot rationally be restricted in the name of preventing hate
or discrimination. In his lesson, Kapoor made the comment that war was “an evil and no one
should ever participate in [one] no matter what” (Donlevy, n.d.b). While some perceived this
sentiment as disrespectful and offensive to fallen war heroes, it did not invite hatred or contempt
toward a protected group. From examining the Saskatchewan (Human
Rights Commission) v. Whatcott case (2013), we know that a feeling of offense or repugnance
is not enough to restrict an individual’s right to freedom of speech. The sentiment must be
restricted to the words described by “detestation” and “vilification” in order to qualify as hate
speech and erode the guarantee of section 2(a) in the charter (Lecture 3, n.d., 25:51). At best,
Kapoor demonstrated an attitude of disrespect toward the act of war and the lack of morality it
inspires, he did not espouse hate toward the entire population of soldiers and veterans.
Further, Kapoor’s comment that war is evil and should never be practiced cannot be said
to be defamatory as it did not cause financial injury to any involved party and it cannot be
proven false (Donlevy, n.d.c). While Kapoor’s comment may have been widely disputed, he
clearly stated the facts from which he drew his opinion including the horrors of the American My
Lai massacre, and the Canadian Somalia Affair, as well as the injustice at the Nuremburg trials.
His opinion could be reasonably drawn from these accurate historical events. The
comment is also protected by Kapoor’s right to opinion and fair comment privilege as he was not
trying damage a certain group’s reputation but bring awareness to a public
issue (Donlevy, n.d.c). Kapoor believed he was providing a public service by exposing the
dangers of war to protect future generations from harm.
Additionally, Kapoor could not reasonably foresee, nor did he intend, the
student’s harmful reaction and therefore the measures taken to restrict his freedom of speech are
not rationally connected to the objective of protecting vulnerable groups from manipulation. In
this case, it is not reasonable to “anticipate a causal relationship” between the conduct of the
individual and the harm produced (Lecture 3, n.d., 18:32). While Kapoor urged students to be
socially active citizens and use their voices to renounce future acts of war, he in no way implied
that it was appropriate to shame veterans or the honored dead as warmongers during a revered
ceremony or denounce Remembrance Day. In fact, Kapoor strongly advocated for active
remembrance of historical events to avoid past mistakes and create a brighter future. It is
overreaching to conclude Kapoor willfully and knowingly incited the students’ controversial
protest through a singular lesson exposing the pitfalls of war and establishing peaceful dialogue
as the precedent for conflict resolution. The protesting students acted on their
own volition outside of school hours and, along with their guardians, are the rationally
accountable party for any harm.
In the Myers v. Peel County Board of Education (1981) negligence case, Arnup J.A.
considered that a careful father would not have hesitated in allowing his son to go into an
exercise room given his age and circumstances without further supervision, yet a terrible incident
still occurred. That is to say, the reasonable man is not the perfect man. The same argument
should be applied in this case. Kapoor’s lesson was well intentioned to provide a balanced view
of war, accurate in historical content and in line with curricular competencies. It satisfied his
professional responsibility to provide value beyond school in introducing a topic that teaches
universal human values of fairness, tolerance, and respect for life (Kidder, n.d). While reasonable
and dutiful conduct does not guarantee perfection or mitigate all inherent risks of social
justice pedagogy, it does make said risks unforeseeable. It is impractical to assume Kapoor could
have anticipated the nature or severity of his student’s reaction given his ordinary degree of
reason, prudence, care, and intelligence.
The second clause of the Oak Test asserts that measures should impair “as little as
possible” the right or freedom in question (Donlevy, n.d.a). Considering that the “legal threshold
for professional misconduct is operative due to local communities' expectations” (Lecture 4, n.d.,
11:35), the school has reasonable grounds to ask that Kapoor restructure his lesson in order to
better communicate his vision of a balanced view of war and avoid future misinterpretation by
students. However, suspending him for refusing to publicly apologize for a valid opinion and
the unforeseeable actions of others fails the minimal impairment branch of section one. Given
that Kapoor’s comments were not discriminatory in nature and did not poison the
educational environment with a lack of equality (see Ross v. New Brunswick School District No.
15, 1996), the expression does have value to protect and is within the claim of professional
autonomy. Anything beyond reprimanding Kapoor for unprofessional conduct in
not appearing to remain unbiased is unfair and incongruous with the Oakes Test.
Lastly, the Oakes test states that there must be a proportionality between the effects of the
limiting measure and the objective must be significant. While preventing the espousal of hate
and protecting vulnerable sectors from manipulation are of high value in a free and democratic
society, we have previously established such objectives are not achieved by the measures taken
against Kapoor. Therefore, we find no further argument is necessary under clause three.
Arguments Restricting Charter Section 2(b)
Kapoor has the right to freedom of expression with the ability to share one’s beliefs and
opinions no matter how offensive or unpopular, this right is not absolute or without checks and
balances. Section 1 of the Charter clarifies that an individual’s freedoms are only guaranteed to
such reasonable limits prescribed by law (or policy set in schools empowered by the education
act) as can be demonstrably justified in a free and democratic society (Lecture 3, n.d., 14:56).
Given Kapoor’s position of authority and the educational context of the situation, it is both
necessary and constitutional to restrict Kapoor’s freedom of expression. The objectives of
protecting vulnerable sectors from coercion/hatred and maintaining public trust in the institution
of education are decidedly important and rationally connected to the measures taken
against Kapoor. Further, the measures taken were of minimal impairment and therefore the
Oakes test stands.
The Alberta program for social studies "emphasizes the importance of active and
responsible participation as the foundation of a democratic society" (Alberta Education, 2015,
p.1). While Kapoor’s goal may have been to incite positive social activism, on this day his
teaching practice lacked responsibility, respect, and was deficient in illustrating diverse and
balanced perspectives of historical events. The nature of Kapoor's social studies
lesson demonstrated expressive and bias content and encouraged a one-sided opinion of war to
an impressionable audience. He exposed his students to sensitive material about the American
My Lai massacre and the Canadian Somalia affair, two events that highlight troops involved in
mass murders and slaughtering innocent people. When choosing not to take part may have led to
greater calamity or loss of fundamental freedoms, Kapoor failed to include the importance of
military aid and intervention. As stated by the dissenting judge n Morin v. Board of School
Trustees of Regional Administrative Unit #3 “A public school, at the junior high level, is not a
marketplace for ideas where everyone has the right to freely and openly debate all issues.”
Kapoor clearly violated his professional responsibility to appear neutral and provide an
environment free of bias.
The education act states, "16(1) All courses or programs of study and instructional
materials used in a school must reflect the diverse nature and heritage of society in Alberta,
promote understanding and respect for others and honor and respect the shared values and beliefs
of Albertans" (2017, p. 28). Kapoor's teaching was made a public concern on Remembrance
Day, 2019, when the students protested the ceremony to memorialize those who lost their lives
with the intent to protect the innocent. Remembrance ceremonies are a revered and respected
tradition in Alberta, and these students showed a clear disrespect to soldiers and war veterans in
their protests, particularly during the sacred moment of silence. The student protest was a direct
response to Kapoor’s lesson that failed to teach students about collective values and responsible
dissent. He encouraged them to use their voices without affording them the tools or vocabulary
to do so effectively. Such carelessness cannot be tolerated as teachers are “are inextricably linked
to the integrity of the school system” (Ross v. New Brunswick School Dist. No. 15,
1996, p.857). Kapoor’s practice has jeopardized public confidence in the institution.
When Kapoor stated that war was “evil” and “no one should ever participate in [one] no
matter what”, he targeted a specific group of people whose rights are protected by law. The
Veterans Bill of Rights entitles all veterans and their families to be treated with “respect, dignity,
fairness, and courtesy” (Veterans Affairs Canada, 2019). Kapoor’s lesson did not then adhere to
negative liberty as it interfered with the rights of others (Donlevy, 2004). It actively operated
to vilify veterans by calling their actions evil and equating their profession to
humanitarian crimes. His sentiment exposed soldiers to derogatory labels such as “warmonger”
and caused student contempt making Kapoor’s social studies lesson qualify as hate
speech. Following the R.V Keegstra case (1990), we know that the value of social harmony far
outweighs the value of hateful expression towards an identifiable group, and Mr. Kapoor is no
longer guaranteed the right to section 2(b) of the charter in this situation.
Due to the extent of the harm felt by the Fort MacMurray community, the requirement of
a formal apology is reasonable. Kapoor was not fired, fined, demoted to a non-teaching position,
or permanently banned from speaking on the subject, he was merely asked to apologize for his
disrespectful remarks. The measure then passes the minimal impairment test fulfilling the final
criteria necessary to pass the Oakes balancing test.
Conclusion
When teaching the social studies unit that included Remembrance Day, Kapoor stated
that it was his intent to provide a balanced point of view. However, while he spoke in great
length of the atrocities of war, he failed to teach the other side that honors the great sacrifices
of Canadian war veterans. It is our strong belief that value pluralism is essential to educational
best practice. Students must be given the opportunity to examine conflicting sides of
an argument to both grow their tolerance and allow them to formulate individual
opinions. Kapoor erred in enforcing “one set of values over all others” and thus promoting a
dangerous value monism that inspired an adverse student reaction (Donlevy, 2004, p. 305). Such
preferential practice is in direct conflict with the Professional Code of Conduct which requires
teachers to appear unbiased and tolerant and has the potential to undermine the dignity of the
profession and public confidence in the institution. (Alberta Teachers Association, 2018). We
therefore believe the school board is constitutionally justified in requiring an apology
and restricting Kapoor’s freedom of expression to say that war is an evil that
is never justifiable. We do support his right to bring controversial and engaging issues into the
classroom, but we hold they must be presented in a balanced and respectful way.
References
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