RUNNING HEAD: LEARNING TASK 1 LAW ASSIGNEMENT 1

Learning Task 1: The Law Assignment - Remembrance Day Question

EDUC 525

Joel Finlay

Dr. J.K. Donlevy

Werklund School of Education

University of Calgary

27 July 2020
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Introduction

The law and its interpretation play a pivotal role in contemporary societies (Delaney,

2008). Technological advances, including access to the Internet resulting in greater access to

media, have catalyzed more individuals advocating for their rights (Delaney, 2008). Increased

awareness of how the legal system can be used to settle disputes, especially as it relates to

individual rights, has impacted schools, teachers, and students. Since schools are a “collection of

individual persons who bring with them daily into their classrooms an array of highly

complicated issues” (Delaney, 2008, p. 1), teachers must have a grasp of education law.

LGBTQIA+ rights, bullying, freedom of expression issues – and many other issues require legal

intervention (University of Wisconsin Superior, 2017), and teachers need to be aware of the

limits and obligations, set by law on their profession. Education law, therefore, “play[s]...a

crucial function in modern-day education” (Roth, n.d, para. 1).

Studying educational law provides future teachers an opportunity to obtain the legal

literacy needed to deal effectively with the challenges of modern schools (Delaney, 2008). An

effective method for understanding education law is to analyze relevant case studies. In this

paper, the case of Mr. Philip Kapoor, a teacher in Fort McMurray, Ab, Canada will be examined.

Arguments will be presented for and against Mr. Kapoor’s right to freedom of expression under

section 2 (b) of the Canadian Charter of Rights and Freedoms (1982) – considering relevant

case law along with section 1 of the Charter and the Oakes Test1. Freedom of expression is a

key tenet of democratic societies. However, like all individual rights, the degree to which it can

be exercised (especially in relation to collective rights) is dependent on social norms/values, and

1
legal test – R v Oakes (1986) - Supreme Court of Canada interpreted section 1 of the Charter,
as providing reasonable limits on a person’s Charter rights. Thus, Charter rights are not
absolute and can be limited if there is reasonable justification (OJEN, 2009)
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legal precedent. Teachers, due to their role within society, are constrained in their professional

activity – the extent of this constraint will be examined through the Kapoor case. However,

before moving on to the analysis of the case, the facts will be presented.

Summary of the Case

Mr. Kapoor started working at Stardust Elementary school in Fort McMurray on

September 27, 2019 – assigned to a grade six class as a generalist (Donlevy, 2020a). The

beginning of Mr. Kapoor’s tenure went well, he developed meaningful relationships with his

students as they navigated the curriculum. Mr. Kapoor also had the opportunity to teach the

interrelationship between societal institutions and the individual/collective well-being of society.

On November 9, 2019, Mr. Kapoor gave a lesson that led to an incident on Remembrance

Day, for which the school held him accountable. During this lesson, Mr. Kapoor taught about

the negative ramifications of war, discussed the My Lai Massacre, the Canadian Somalia Affair,

and framed the Nuremberg trials as victor’s justice (Donlevy, 2020a). Mr. Kapoor stated that his

lesson objective was to provide a balanced view of war, that neither side is without fault. This

lesson, coupled with Mr. Kapoor’s teachings on the importance of social activism culminated in

the Remembrance Day incident (Donlevy, 2020a). During the city’s Remembrance Day service

(Sunday, November 11), in response to Mr. Kapoor’s lesson, students protested in front of city

hall, disrupting the minute of silence, and decrying the occasion as celebrating warmongers

(Donlevy, 2020a).

The incident sparked outrage throughout the community. The discourse in the local

newspaper framed the incident as an act of disrespect towards veterans. Pressured by the

community, the school board reprimanded Mr. Kapoor and demanded that he apologize to
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parents/students and explain/admit that his lesson was disrespectful/wrong (Donlevy, 2020a).

Mr. Kapoor refused to comply, leading to his subsequent suspension.

The Case for Mr. Kapoor

Unfortunately, the protest sparked by Mr. Kapoor’s lesson was carried out in a manner

that many in the Fort McMurray community found disrespectful. However, the way the lesson

was presented, and the content of the lesson do not support the school board's decision to limit

Mr. Kapoor’s freedom of expression. Section 1 of the Charter is clear that only under specific

circumstances can Charter rights be subject to reasonable limits. Several questions need to be

answered to ensure this is the case.

First question – is the action taken by Mr. Kapoor part of pre-existing law, statute,

regulation, or official policy? There is no law against speaking out against, nor providing a

balanced view of wars. If it is the official policy of the administration that controversial topics

be brought to their attention first, then, the responsibility for what happened lies with the school

board. Morin v. Regional Administration Unit #3 PEI (2002), as interpreted by Dr. J.K. Donlevy

(2020b) in an EDUC 525 lecture, indicates that if a teacher believes their lesson is controversial,

they are obligated to seek the administrations’ approval. Donlevy (2020b) argues that by not

informing the administration of the controversial subject matter presented to the students, Morin

should have had his rights limited under section 1. However, in contrast to Morin, Mr. Kapoor is

a first-year teacher, and a late hire (starting in late September). Teachers in his position are

typically on probational contracts and subject to oversight. A competent administration would

foster a culture that allows teachers to grow and flourish while ensuring they are not in violation

of official policy. Therefore, assuming Mr. Kapoor, as a probational teacher, had his lesson
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plans written and available for administrative review, should the administration not shoulder

some of the blame as a result of their poor oversight?

The second question – are the concerns substantial/pressing enough to justify a limit of

rights (R. v. Oakes, 1986)? While the actions of the students can be viewed as disrespectful, they

were non-violent, and the protest targeted the concept of war – not any individuals/identifiable

group. In fact, in the case of Shewan v. Board of School Trustees of School District #34

Abbotsford (1987), the courts indicated that the purpose of education is to produce citizens able

to participate in Canadian democracy. Peaceful protests are a part of a healthy democracy

(Martin, 1994). Therefore, Mr. Kapoor’s lesson, not only does not reach the level of justification

needed to be limited under the Oakes test, it can be said, it was fulfilling the purpose of

education.

The third question – is the nullification of Mr. Kapoor’s rights rationally connected to the

purpose? Mr. Kapoor was doing his duty to educate students and could not have reasonably

foreseen that students in grade six would organize a protest on a Sunday, two days after his

lesson. While some might find his ideas about repugnant, as was settled in the Saskatchewan

(Human Rights Commission) v. Whatcott (2013), the repugnancy of an idea is not sufficient to

limit Mr. Kapoor’s rights. The court is not concerned with morality/ethics. While some parents

found what Mr. Kapoor taught to be morally reprehensible, that is irrelevant when limiting

freedom of expression. It is irrational to takeaway Mr. Kapoor’s rights for a lesson that does not

reach the level of hate speech. The lesson discussed in general historical terms, the perils of war

itself and urged students to embrace social activism. Mr. Kapoor did not target any identifiable

group for hate, and he did not implicitly or explicitly tell students to go protest Remembrance

Day service.
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The fourth question – does the action minimizes the effect on the Charter right being

limited? The reaction of the school board to demand an apology, and then suspend Mr. Kapoor

for not issuing one, is an overreach. Mr. Kapoor did not speak specifically about any identifiable

group, nor promote hate speech, a curtailing of his rights would be dangerous for democracy.

Turning teachers into government mouthpieces, delivering nothing more than a narrowly defined

curriculum to students (Britto, 2018).

The fifth question – do the benefits of limiting the right outweigh the costs. Mr.

Kapoor’s lesson had negative ramifications within the community of Fort McMurray, however,

his actions were not heinous, malicious, nor presented with the intent to foster hate. Mr.

Kapoor’s goal was to challenge students to look deeper into the subject matter and critically

think about the world around them. Punishment for the content of the lesson itself (suggested by

the need to apologize for it to parents) would be detrimental to Canadian democracy, as it would

discourage students from being socially and politically active in the future and breach the “right

of students in a democratic society to have access to free expression by their teachers” (Morin v.

Regional Administration Unit #3, 2002, para. 67). Debate and exposure to different perspectives

is a key component of education – removing a teacher's academic freedom would stunt students'

critical thinking skills (Morin v. Regional Administration Unit #3, 2002).

If there was any transgression, it was the timing of Mr. Kapoor’s lesson, and the fact that

it was not approved by the administration (which, again, blame here is not solely Mr. Kapoor’s).

Mr. Kapoor should be reinstated, and he should have the opportunity to give a lesson on effective

methods of protest/direct action. Also, the onus for the apology should be on the administration

– which should explain to the parents how they failed to properly mentor Mr. Kapoor and that
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while his inexperience resulted in unfortunate action, that intent of his lesson was not malicious

or fundamentally wrong.

The Case Against Mr. Kapoor

Mr. Kapoor’s lesson motivated students to carry out protests that were disrespectful to

many in the Fort McMurray community, including veterans, and parents of his students.

Teachers are not only role models but also conduits for the relaying of societal ideals, values, and

norms to impressionable youth. When the ideals a teacher espouses greatly diverge from the

community’s, the community should have recourse to use section 1 of the Charter and impose

boundaries on the teacher's freedom of expression. This was exhibited in R. v. Keegstra (1990)

and Ross v. New Brunswick School District n. 15 (1996) when the Oakes test (R. v. Oakes, 1986)

was used to justify reasonable limitations placed on a teacher’s freedom of expression. For the

Oakes test to be applicable, three specific criteria must be met.

The first criterion – is the limit rationally connected to the objective of a tension-free

educational setting. Mr. Kapoor’s actions in a setting, where many stakeholders have rights,

motivated his impressionable students to commit actions that resulted in psychological hardships

for students, parents, veterans, and the Fort McMurray community. Mr. Kapoor’s actions

poisoned the school environment (Ross v. New Brunswick School District n. 15, 1996), creating

an atmosphere where students were being placed between their parents/community and their

teacher, hindering their ability to learn. The court's ruling in Abbotsford School District 34 v.

Shewan, (1987) showed that actions working against the morality of a community will poison the

school’s atmosphere. Parents will tell students not to listen to Mr. Kapoor, negatively effecting

the institution of education and hampering Mr. Kapoor’s ability to teach in the Fort McMurray

community. Asking Mr. Kapoor to apologize for his actions, and refrain from conducting
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divisive lessons without board approval, to mend the divide between himself, parents and the

community is a rational and necessary limit.

The second criteria – does the limit impair the right as little as possible to meet the

objective. Mr. Kapoor’s right to freedom of expression, as a probationary teacher, was already

limited by school board policy. As an inexperienced first-year teacher, Mr. Kapoor should be

following the curriculum and getting approval from the administration for sensitive topics, not

conducting lessons that contravene the ideals of the community. Mr. Kapoor does not possess

the experience or the skills to cover delicate subject matter in the time frame allotted. Mr.

Kapoor’s lesson was ill-thought-out, and “[f]raming speech as arising in a moral context or

within a public policy debate does not cleanse it of its harmful effect.” (Saskatchewan (Human

Rights Commission) v. Whatcott, 2013, para. 13). Asking Mr. Kapoor to apologize, refrain from

departing from the curriculum in the future and abide by his probationary contract is a minimal

breach of his rights. It was only when Mr. Kapoor’ refused to follow these minor concessions,

exhibiting poor professional conduct, and “neglecting to obey a lawful order of the board.”

(Edmonton School District No. 7 v. Dorval, 2016, p. 1) that he was suspended.

The third criteria – are the negative effects of limiting the right compared to the benefits

for the community proportional. There needs to be a balance between “freedom of

expression...and other values essential to a free and democratic society...[including] respect for

group identity and the inherent dignity owed to all human beings” (Saskatchewan (Human

Rights Commission) v. Whatcott, 2013, para. 8). The negative effects of limiting Mr. Kapoor’s

rights are minor compared to the indignity that the community of Fort McMurray endured. Mr.

Kapoor’s lesson was irresponsibly provocative and one-sided, it confused his students and

motivated them to incorrectly assume everyone, living and deceased, who was called to serve
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their country was a warmonger. This created strife and hardship within the community,

evidenced by the reaction of the local newspaper, parents, and school board. The community

and the families within the community have the right to an educational setting that is in line with

their community values. The public education system needs to be accountable to the

communities' core values (Remembrance Day is a national holiday) and cannot be contradicted

by a teacher’s speech, without undermining the teacher's ability to teach in the community.

Asking Mr. Kapoor to apologize, and present the approved curriculum, to create a better school

setting and community is a proportional limit. Mr. Kapoor’s noncompliance was grounds for

insubordination and justified his suspension.

Conclusion
As a group, we agreed that the school board was wrong to limit Mr. Kapoor's rights. At

the heart of this case is the Oakes test and we feel that his actions do not rise to an egregious

enough level to satisfy it and limit Mr. Kapoor's’ Charter rights. Mr. Kapoor did not spread

hatred towards a group or individual. While Mr. Kapoor did teach his students the importance of

social activism for democracy, he did not instruct his students to plan a protest at the

Remembrance Day ceremony. Finally, as a first-year teacher, we would hope that there would

be oversight by the administration, where at the very least they would have cautioned him about

potentially sensitive content. While we are not given information saying whether he did write

out a lesson plan, and if it was made available to his administration, we can only assume he did.

For this reason, we feel that it was unreasonable for the school board to ask the teacher to

shoulder all the blame and apologize to the parents of his students. The administration should be

communicating an apology to the parents and the community on behalf of their young teacher

and working with Mr. Kapoor to create a lesson that addresses the mistake his students made.
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References:
Abbotsford School District 34 v. Shewan, 1986 CanLII 870, British Columbia Supreme Court
Britto, T.F. (2018). Neither Hired Mouth nor Class Monarchs: The Scope of Schoolteachers’

Freedom of Expression in Canada. Canadian Journal of Education. 41(3), 783 – 807.

Canadian Charter of Rights and Freedoms. (1982). Part I of the Constitution Act, 1982

being Schedule B to the Canada Act 1982 (UK).

Delaney, J. G. (2008). The Value of Educational Law to Teachers in the K-12 School System.

Morning Watch, 36(1-2), 1–24

Donlevy, J.K. (2020a). EDUC 525 – Ethics & Law in Education [Course Outline]. Retrieved

from https://d2l.ucalgary.ca/d2l/le/content/310093/viewContent/4067750/View

Donlevy, J.K. (2020b). EDUC 525 – Ethics & Law in Education Zoom Lecture 2 [Course

Lecture]. Retrieved from

https://d2l.ucalgary.ca/d2l/le/content/310093/viewContent/4088803/View

Edmonton School District No 7 v. Dorval, 2016 Alberta Court of Appeal

Saskatchewan (Human Rights Commission) v. Whatcott, 2013 SCC 11, [2013] 1 S.C.R. 467
Martin, B. (1994). Protest in a Liberal Democracy. Philosophy and Social Action, 20(1-2), 13 –

24.

Morin v. Regional Administration Unit #3 PEI, 2002 PESCAD 9

OJEN. (2009). In Brief: Section 1 of the Charter & the Oakes Test. Retrieved from

https://ojen.ca/en/resource/in-brief-section-1-of-the-charter-the-oakes-test

R. v. Keegstra (1990), 3 S.C.R. 697

R. v. Oakes, (1986), 1 S.C.R. 103.

Ross v. New Brunswick School District No. 15, (1996) 1 SCR 825
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Roth, R. (n.d.). 10 Reason Education Law is so Important. Retrieved from

http://www.ghostilmusical.com/10-reasons-education-law-is-so-important/

Shewan v. Board of School Trustees of School District #34 Abbotsford, 1987 CanLII 159

University of Wisconsin Superior (2017). Importance of Understanding School Law. Retrieved

from https://online.uwsuper.edu/articles/understanding-school-law.aspx