Toronto Catholic School Trustee Makes Free Speech Case for LGBT, Abortion Comments

Nearly two years of disciplinary hearings for a Toronto Catholic school board trustee have wrapped up, with final comments focused on free speech and its limitations.

The Ontario College of Teachers brought Mike Del Grande before a tribunal in hearings starting November 2022 for comments he made about gender identity and abortion in 2019. Del Grande has a teaching licence but has never worked as a teacher.

His attorney Charles Lugosi argued that the college has no jurisdiction over his speech because he was speaking as a trustee and not as a teacher. Lugosi also argued the "political" speech of an elected official should be protected from discipline by a professional regulator.

"It's really inconceivable to suggest that any administrative body of any regulated profession can simply reach into the legislative forum ... and say what you do in your legislative chamber is subject to our approval and discipline if you so happen to be a member of our profession," Lugosi said during a Sept. 4 hearing.

He argued that any doctor, nurse, teacher, engineer, or other regulated professional who decides to run for office should be free to speak on controversial or "political" issues.

The college argued in turn that the trustee's comments "poisoned" the environment for students. It cited cases in which teachers have been disciplined for off-duty actions and argued that Del Grande's situation is similar.

Professional regulators have legal power to limit speech in some instances as part of their mandate to protect the integrity of their professions if the license-holder wants to remain registered. The extent to which such regulators can discipline members for public comments has been a matter of much debate in Canada in recent years.

Peterson has identified himself publicly as a psychologist, Lugosi said, noting that Del Grande "has never self-identified as a teacher, privately or publicly, and he has never practiced as a teacher."

The board's Catholic Values Subcommittee discussed a proposal to play a film titled "Unplanned" in some classrooms. The film is based on the memoirs of anti-abortion activist Abby Johnson who was once a clinic director at Planned Parenthood. Johnson's story details negative experiences at the clinic, particularly watching via ultrasound a fetus as it was being aborted.

After the meeting, he approached her in the trustee's lounge and asked her further about her views on abortion, which he said were contrary to Catholic values.

Other trustees were present during this conversation, and some of them testified during the hearings. Dallin also testified.

The final hearings reexamined testimony regarding the tone and volume of Del Grande's voice, as well as other indicators of whether it was a civil conversation or "bullying."

"The most apt description of the member's interaction with Taylor Dallin was bullying, plain and simple," said Danielle Miller, counsel for the college.

Miller largely dismissed the testimony of the other trustees present on the basis that they are friends of Del Grande's.

Miller recounted what happened, saying Del Grande told Dallin that she had been influenced by the media and that she was a "pawn" for an LGBT activist teacher. He said she was "brainwashed" and that her views were incompatible with her role as a student leader in a Catholic board.

"He had this ordinarily composed, confident teenager reduced to tears," she said.

Lugosi argued that Del Grande was following his conscience and an oath he took to uphold the Catholic faith as a trustee. Lugosi noted that Section 93 of the Constitution Act protects denominational schools.

"There was an outcry from his remarks, not just from the LGBTQ-plus community who were targeted, but from the Ontario Catholic School Trustees' Association who stated without reservation that they repudiated his comments, same with political figures in the city and province, same with parents," Miller said.

Lugosi argued that his client, Del Grande, was employing a technique of hyperbolic rhetoric as used by a former Toronto city councillor, Howard Moscoe, who would use gross exaggeration to jolt people into seeing his point.

"If you're going to use a cultural reference, it would help if anyone understood it," Miller countered. "Even if it had been understood, it would not mitigate how offensive a comparison it was."

Lugosi said democracy counts on people—especially elected officials—being able to speak frankly on sensitive topics.

"Where's your free and democratic society if the very foundation of democracy is torn apart because you have to mind your Ps and Qs and everything you say?" Lugosi said.

While he argued "qualified privilege"—a special legal protection for elected officials' speech—applies to school trustees, the college argued that it does not.

Independent legal counsel Julie Maciura gave advice to the tribunal panel members about what they should keep in mind while evaluating arguments on both sides.

"My advice to you is that this is, in fact, the strongest of the member's arguments: That is, is it reasonable to exercise your jurisdiction over Mr. Del Grande in this case and make a finding of misconduct for his off-duty comments as a school trustee when he has never worked as a teacher and had not identified himself as a member of the College of Teachers at the time?" she said.

It matters, she said, that Del Grande apologized to Dallin when she began to cry.

She said the panel will have to balance Del Grande's freedom of expression rights against the college's mandate to protect the profession.

She advised the panel to review previous cases, including Peterson's, to consider relevant circumstances mentioned in determining whether off-duty conduct rises to the level of misconduct as a member of the profession.