Vriend v. Alberta
Encyclopedia
Vriend v. Alberta [1998] 1 S.C.R. 493 is an important Supreme Court of Canada
case that determined that a legislative omission can be the subject of a Charter
violation. The case involved a dismissal of a teacher because of his sexual orientation
and was an issue of great controversy during that period.
was dismissed from his position as a lab coordinator at King's College, a private religious college in Edmonton
, Alberta
, because of his sexual orientation. He was prevented from making a complaint under the Alberta Individual Rights Protection Act because the legislation did not include sexual orientation as a prohibited ground of discrimination. Vriend sought a declaration from the Alberta Court of Queen's Bench that the omission breached section 15
of the Charter.
Justice Russell
of the Court of Queen's Bench found in favour of Vriend as the college violated s. 15 of the Charter and could not be saved under section 1
. The Alberta Court of Appeal, in a decision written by Justice McClung
, overturned the trial decision.
The court decided yes to the first question and no to the second. They found that there is no legal basis for drawing a distinction of the Charter scrutinizing a positive act and an omission.
and found that it does not limit to only positive acts. It is not only to protect against encroachment on rights or the excessive exercise of authority, as McClung suggested, rather it is a tool for citizens to challenge the law in all its forms. The legislature's silence on an issue does not constitute neutrality with first assessing the application of section 15.
The court then looked at the application of the Charter to private activities.
Firstly, the respondents failed to show a "pressing and substantial objective". The Court dismissed the respondents' submission, that the predicament would be rare, as only an "explanation" and not an objective, as it lacked any description of goal or purpose.
Secondly, the respondents failed to show a "rational connection". The Court was especially harsh on this point, stating:
The respondents attempted to justify the rational connection as part of an incrementalist approach similar to one used by Gagan Egan v. Canada
, which the Court rejected as inappropriate and a poor basis for justifying a Charter violation.
Thirdly, the respondents failed to show that there was "minimal impairment". Though the legislature must balance between the competing rights of religious freedoms and protections of gays and lesbians, the legislature made no compromise between rights at all.
. He argued that "reading in" a sexual orientation provision in the Individual Rights Protection Act was not necessarily more "desirable" than simply dismissing the entire IRPA as unconstitutional, since the Alberta legislature had repeatedly indicated they specifically did not wish to include such rights in the document. Major wrote that the IRPA should in fact be overturned. He then suggested that the legislature may in turn wish to use the Notwithstanding clause
to pass a new IRPA that would be capable of excluding protection for homosexuals.
to overrule the decision. However, Alberta Premier
Ralph Klein opted not to do this. Moreover, Klein said any public protest was hateful, which angered the right-wing. One National Post
writer has suggested that Klein's decision represented a gap from his words against bold judicial decisions.
Supreme Court of Canada
The Supreme Court of Canada is the highest court of Canada and is the final court of appeals in the Canadian justice system. The court grants permission to between 40 and 75 litigants each year to appeal decisions rendered by provincial, territorial and federal appellate courts, and its decisions...
case that determined that a legislative omission can be the subject of a Charter
Canadian Charter of Rights and Freedoms
The Canadian Charter of Rights and Freedoms is a bill of rights entrenched in the Constitution of Canada. It forms the first part of the Constitution Act, 1982...
violation. The case involved a dismissal of a teacher because of his sexual orientation
Sexual orientation
Sexual orientation describes a pattern of emotional, romantic, or sexual attractions to the opposite sex, the same sex, both, or neither, and the genders that accompany them. By the convention of organized researchers, these attractions are subsumed under heterosexuality, homosexuality,...
and was an issue of great controversy during that period.
History
Delwin VriendDelwin Vriend
Delwin Vriend is a Canadian who was at the center of a landmark provincial and federal legal case, Vriend v. Alberta, concerning the inclusion of sexual orientation as a protected human right in Canada.-Early life:...
was dismissed from his position as a lab coordinator at King's College, a private religious college in Edmonton
Edmonton
Edmonton is the capital of the Canadian province of Alberta and is the province's second-largest city. Edmonton is located on the North Saskatchewan River and is the centre of the Edmonton Capital Region, which is surrounded by the central region of the province.The city and its census...
, Alberta
Alberta
Alberta is a province of Canada. It had an estimated population of 3.7 million in 2010 making it the most populous of Canada's three prairie provinces...
, because of his sexual orientation. He was prevented from making a complaint under the Alberta Individual Rights Protection Act because the legislation did not include sexual orientation as a prohibited ground of discrimination. Vriend sought a declaration from the Alberta Court of Queen's Bench that the omission breached section 15
Section Fifteen of the Canadian Charter of Rights and Freedoms
Section Fifteen of the Canadian Charter of Rights and Freedoms contains guaranteed equality rights. As part of the Constitution, the section prohibits certain forms of discrimination perpetrated by the governments of Canada with the exception of ameliorative programs and rights or privileges...
of the Charter.
Justice Russell
Anne Russell
Madam Justice Anne Helen Russell is a former judge on the Alberta Court of Appeal.Russell was born Anne Helen Lucas in Winnipeg, and studied Law at the University of Alberta. She was appointed to the Provincial Court of Alberta in 1984, to the Court of Queen's Bench in 1992, and to the Court of...
of the Court of Queen's Bench found in favour of Vriend as the college violated s. 15 of the Charter and could not be saved under section 1
Section One of the Canadian Charter of Rights and Freedoms
Section One of the Canadian Charter of Rights and Freedoms is the section of the Charter that confirms that the rights listed in that document are guaranteed. The section is also known as the reasonable limits clause or limitations clause, as it legally allows the government to limit an...
. The Alberta Court of Appeal, in a decision written by Justice McClung
John McClung
John Wesley "Buzz" McClung was a historian, lawyer, jurist, and a judge of the Alberta Court of Appeal.-Early life:...
, overturned the trial decision.
Ruling
There were two issues put before the Supreme Court:The court decided yes to the first question and no to the second. They found that there is no legal basis for drawing a distinction of the Charter scrutinizing a positive act and an omission.
Section 15
The court looked at the language of section 32Section Thirty-two of the Canadian Charter of Rights and Freedoms
Section Thirty-two of the Canadian Charter of Rights and Freedoms concerns the application and scope of the Charter. Only claims based on the type of law contemplated by this section can be brought before the Court....
and found that it does not limit to only positive acts. It is not only to protect against encroachment on rights or the excessive exercise of authority, as McClung suggested, rather it is a tool for citizens to challenge the law in all its forms. The legislature's silence on an issue does not constitute neutrality with first assessing the application of section 15.
- Neutrality cannot be assumed. To do so would remove the omission from the scope of judicial scrutiny under the Charter. The appellants have challenged the law on the ground that it violates the Constitution of Canada, and the courts must hear and consider the challenge.
The court then looked at the application of the Charter to private activities.
- Although the [Act] targets private activities and as a result has an 'effect' on those activities it does not follow that this indirect effect should remove the [Act] from the purview of the Charter. It would lead to an unacceptable result if any legislation that regulated private activity would for that reason alone be immune from Charter scrutiny.
- The respondents' submission has failed to distinguish between "private activity" and "laws that regulate private activity". The former is not subject to the Charter, while the latter obviously is.
Section 1
The court followed this with a section 1 analysis to which they decided was not applicable. In concluding, the court ruled that to remedy the situation "sexual orientation" must be read into the impugned provision of the Act.Firstly, the respondents failed to show a "pressing and substantial objective". The Court dismissed the respondents' submission, that the predicament would be rare, as only an "explanation" and not an objective, as it lacked any description of goal or purpose.
Secondly, the respondents failed to show a "rational connection". The Court was especially harsh on this point, stating:
- Far from being rationally connected to the objective of the impugned provisions, the exclusion of sexual orientation from the Act is antithetical to that goal. Indeed, it would be nonsensical to say that the goal of protecting persons from discrimination is rationally connected to, or advanced by, denying such protection to a group which this Court has recognized as historically disadvantaged. (para. 119)
The respondents attempted to justify the rational connection as part of an incrementalist approach similar to one used by Gagan Egan v. Canada
Egan v. Canada
Egan v. Canada, [1995] 2 S.C.R. 513, was one of a trilogy of equality rights cases published by a very divided Supreme Court of Canada in the spring of 1995...
, which the Court rejected as inappropriate and a poor basis for justifying a Charter violation.
Thirdly, the respondents failed to show that there was "minimal impairment". Though the legislature must balance between the competing rights of religious freedoms and protections of gays and lesbians, the legislature made no compromise between rights at all.
Dissenting view
The sole dissenting opinion was written by Justice John C. MajorJohn C. Major
John Charles "Jack" Major, CC, QC is a Canadian jurist and was a puisne justice on the Supreme Court of Canada from 1992 to 2005....
. He argued that "reading in" a sexual orientation provision in the Individual Rights Protection Act was not necessarily more "desirable" than simply dismissing the entire IRPA as unconstitutional, since the Alberta legislature had repeatedly indicated they specifically did not wish to include such rights in the document. Major wrote that the IRPA should in fact be overturned. He then suggested that the legislature may in turn wish to use the Notwithstanding clause
Section Thirty-three of the Canadian Charter of Rights and Freedoms
Section Thirty-three of the Canadian Charter of Rights and Freedoms is part of the Constitution of Canada. It is commonly known as the notwithstanding clause , or as the override power, and it allows Parliament or provincial legislatures to override certain portions of the Charter...
to pass a new IRPA that would be capable of excluding protection for homosexuals.
Response
Following the decision, some Alberta MLAs called for the government to invoke Canada's notwithstanding clauseSection Thirty-three of the Canadian Charter of Rights and Freedoms
Section Thirty-three of the Canadian Charter of Rights and Freedoms is part of the Constitution of Canada. It is commonly known as the notwithstanding clause , or as the override power, and it allows Parliament or provincial legislatures to override certain portions of the Charter...
to overrule the decision. However, Alberta Premier
Premier of Alberta
The Premier of Alberta is the first minister for the Canadian province of Alberta. He or she is the province's head of government and de facto chief executive. The current Premier of Alberta is Alison Redford. She became Premier by winning the Progressive Conservative leadership elections on...
Ralph Klein opted not to do this. Moreover, Klein said any public protest was hateful, which angered the right-wing. One National Post
National Post
The National Post is a Canadian English-language national newspaper based in Don Mills, a district of Toronto. The paper is owned by Postmedia Network Inc. and is published Mondays through Saturdays...
writer has suggested that Klein's decision represented a gap from his words against bold judicial decisions.
External links
- Fundamental Freedoms: The Charter of Rights and Freedoms - Charter of Rights website with video, audio and the Charter in over 20 languages