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Sexual Orientation - General. Del Grande v. Toronto Catholic District School Board
In Del Grande v. Toronto Catholic District School Board (Ont CA, 2024) the Ontario Court of Appeal dismissed an appeal of a JR against school board decisions in which the appellant "was found to have breached the TCDSB’s code of conduct (the “Code of Conduct”) during a public meeting" and was sanctioned."
Here the court considers Charter s.2(b) ['expression'] and s.2(a) ['religion'] Charter issues in an administrative context:(4) The Divisional Court did not err in finding that the Board’s Decisions balanced Mr. Del Grande’s Charter rights with its statutory mandate
[36] Mr. Del Grande argues that he merely engaged in rhetorical hyperbole at the November 2019 meeting that did not violate the Code of Conduct and that the Divisional Court erred in finding that his statements were not protected under ss. 2(a) (freedom of religion), 2(b) (freedom of expression) and 3 (democratic rights) of the Charter. I disagree. The Divisional Court balanced Mr. Del Grande’s right to free speech and freedom of religion with the Board’s statutory mandate under the framework set out in Doré v. Barreau du Québec, 2012 SCC 12, [2012] 1 S.C.R. 395, and Loyola High School v. Quebec (Attorney General), 2015 SCC 12, [2015] 1 S.C.R. 613. Mr. Del Grande’s s. 3 rights were not engaged.
[37] As stated recently in Commission scolaire francophone des Territoires du Nord-Ouest v. Northwest Territories (Education, Culture and Employment), 2023 SCC 31, 487 D.L.R. (4th) 631, at para. 73, under the Doré approach, a reviewing court must:1. Determine whether a decision-maker’s decision limits relevant Charter protections; and
2. If so, examine the decision maker’s reasoning process to assess whether, given the relevant factual and legal constraints, the decision reflects a proportionate balancing of Charter rights or the values underlying them. [38] If the decision reflects a proportionate balancing, it is reasonable.
[39] The Divisional Court found that Mr. Del Grande was not sanctioned based on his religious beliefs or for debating the merits of adding prohibited grounds of discrimination under the Code. He was sanctioned for using “extreme and derogatory rhetoric that fell below the standard of conduct required of a Trustee”, and for making remarks that “did not reflect any sincerely held religious beliefs” but rather used a “slippery slope” argument to mock individuals who seek protection from discrimination based on their gender identity and gender expression.
[40] I see no error in the Divisional Court’s analysis on this point. Mr. Del Grande’s argument on this point was rejected in Volpe v. Wong-Tam, 2023 ONCA 680, 487 D.L.R. (4th) 158, leave for appeal refused, [2024] S.C.C.A. No. 41041, in which publishers of anti-LGBTQ+ tracts argued that their speech could not be accurately characterized as discriminatory because it was an articulation of Roman Catholic doctrine. As Miller J.A. eloquently stated, at para. 42 of Volpe:The problem with the appellants’ articles was not that they took a position adverse to that of LGBTQ2S+ advocates with respect to Roman Catholic doctrine and education about sexuality. The problem was that they “used derogatory and prejudicial language” to do so, using stereotypes of “predation, pedophilia, and socially destructive behaviour.” This was the aspect of the appellants’ speech that exposed them to the complaint that they expressed discriminatory statements. [41] Similarly, in this case, the offensive aspect of Mr. Del Grande’s conduct at the 2019 Board meeting was not his opposition to adding further prohibited grounds of discrimination in the Code of Conduct, but his degrading and (as he acknowledged) flippant equation of gender identity and gender expression to cannibalism, rape, and bestiality.
[42] The Divisional Court noted that the investigation report before the Board was alert to the Charter values at stake and that, prior to making the Decisions, the Trustees had lengthy written and oral submissions from Mr. Del Grande. His submissions included that a finding that he had breached the Code would violate his Charter rights. The court concluded that the Merits Decision reflected an appropriate balance between the objectives in the Education Act and Mr. Del Grande’s Charter rights:[Mr. Del Grande] made his comments in his capacity as a Trustee, in a public meeting that included at least one delegate from the LGBTQ+ community who expressed vulnerability and alienation in the Catholic school system. [Mr. Del Grande] had a duty to “represent all the citizens in the Catholic community” in Toronto and to create a “positive environment that is safe, harmonious, comfortable, inclusive and respectful.” The Board’s determination that [Mr. Del Grande] breached the Code of Conduct by engaging in extreme, disrespectful and demeaning language was reasonable. [Emphasis in original.] [43] The Divisional Court observed that the Board, which is composed of Catholic Trustees, is presumed to have expertise as to its processes and standards of behaviour, and that the Decisions are accordingly entitled to deference. As held in York Region District School Board v. Elementary Teachers’ Federation of Ontario, 2024 SCC 22, 492 D.L.R. (4th) 613, at para. 89, “[t]ribunals should play a primary role in the determination of Charter issues falling within their specialized jurisdiction (i.e., where the essential factual character of the matter falls within the tribunal’s specialized statutory jurisdiction).” The Board’s decisions are also entitled to deference because it is composed of trustees democratically elected by the community which it serves.
[44] The Divisional Court’s reasoning accords with decisions from other Canadian courts on the balance that should be struck between freedom of speech and young LGBTQ+ persons from demeaning and hateful rhetoric in schools, school boards, and post-secondary institutions: Kempling v. British Columbia College of Teachers, 2005 BCCA 327, 43 B.C.L.R. (4th) 41, at para. 79, leave to appeal refused, [2006] S.C.C.A. No. 31088; Law Society of British Columbia v. Trinity Western University, 2018 SCC 32, [2018] 2 S.C.R. 293, at para. 98. Mr. Del Grande’s remarks at the meeting ignored the inherent dignity of LGBTQ+ individuals. As such, they are “not representative of the core values underlying s. 2(b)": Kempling, at para. 77.
[45] The Decisions do not meaningfully impair Mr. Del Grande from expressing his views or from participating in matters before the Board. The sanctions imposed on him do discourage a repetition of the form of expression he engaged in at the November 2019 meeting. They did not, however, prevent him from continuing in his functions as a trustee, including taking positions on matters before the Board. As he points out, he has since been re-elected as a TCDSB trustee.
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