Alberta Legislative Inaction on Sexual Orientation Discriminatory

Vriend v. Alberta (1997), 31 C.H.R.R. D/1 (S.C.C.)

This is an appeal from a 2-1 decision of the Alberta Court of Appeal. In issue is the lack of protection from discrimination for gays and lesbians provided under Alberta's Individual's Rights Protection Act ("IRPA"). The Supreme Court of Canada overturns the Appeal Court decision. In a 7-1 decision, the Supreme Court of Canada holds that the omission of the ground sexual orientation from the IRPA is a violation of s. 15 of the Charter and cannot be saved by s. 1.

Comprising the majority are: Lamer C.J., Gonthier, Cory, McLachlin, Iacobucci, and Bastarache JJ. Although in overall agreement with the results reached by the majority, L'Heureux-Dubé J. writes a separate concurring opinion regarding the s. 15 analysis. While agreeing that the challenged omission is discriminatory, Major J. dissents with respect to remedy.

The majority decision is authored by Cory and Iacobucci JJ. jointly. Cory J. writes the majority opinion regarding s. 15 and the issue of standing. Iacobucci J. writes the majority opinion regarding s. 1, remedy, and disposition.

The majority of the Court find that the history of the IRPA, and of unsuccessful efforts at reform, indicates that the omission of sexual orientation was deliberate and was not the result of an oversight by the Alberta Legislature. In 1992 when the Human Rights Commission decided to accept complaints alleging discrimination based on sexual orientation this was vetoed by the Government, and the Minister Responsible for Human Rights directed the Commission not to investigate the complaints. In 1993 the government-appointed Alberta Human Rights Review Panel recommended inclusion of the ground. At that time, the Government stated that the issue of human rights protection for lesbians and gay men would be dealt with through this case.

The facts giving rise to the case concern the 1991 dismissal of Delwin Vriend from his employment as a laboratory co-ordinator at King's College. Mr. Vriend made a complaint to the Alberta Human Rights Commission, but his complaint was turned away because the legislation does not prohibit discrimination based on sexual orientation. Mr. Vriend then challenged the omission of sexual orientation from all of the rights-conferring provisions of the IRPA, including those that prohibit discrimination in employment, on the grounds that the omission violates his s. 15 right to equal protection and equal benefit of the law. At trial Russell J. ruled in favour of Vriend. However, a majority of the Alberta Court of Appeal ruled against him, and ordered costs in favour of the Crown.

In the Supreme Court of Canada, the Attorney General for Alberta disputed Delwin Vriend's standing to challenge provisions other than the employment sections of the IRPA. However, the Court holds that Vriend and the co-appellants have the standing to challenge all the impugned sections, based on the three criteria for standing established by Canadian Council of Churches v. Canada (Minister of Employment and Immigration).

The Attorney General for Alberta also argued that s. 32, which provides that the Charter applies to the legislature and government of each province, means that the Charter cannot be applied in this case, since it is a case that challenges underinclusiveness. The Court rejects this, along with the opinion of McLung J.A. that "judicial interference" in cases of "neutral silence" is inappropriate. The language of s. 32 does not limit the application of the Charter merely to positive actions encroaching on rights, or to the excessive exercise of authority.

The Court also finds that this appeal does not represent a contest between the power of the democratically elected legislatures to pass laws, and the power of the Courts to disallow those laws or to dictate that certain matters be included in those laws. It is the Constitution which must be interpreted by Courts and which limits the legislatures. Citizens must have the right to challenge laws which they consider to be beyond the power of the legislatures.

The question of whether an omission is "neutral" is a s. 15 question and cannot be assumed. The mere fact that the challenged aspect of the IRPA is its underinclusiveness does not necessarily render the Charter inapplicable.

The Court also rejects the argument that the appellants seek to have the Charter apply to private activity. Rather, they seek to apply the Charter to a law that regulates private activity. The Charter does apply to it.

Under s. 15 of the Charter, the Court applies the two-step approach of Andrews v. Law Society of British Columbia, finding that:

  1. There is a distinction which results in a denial of equal protection or benefit of the law, and
  2. There is discrimination based on an analogous ground.

The IRPA creates a distinction based on sexual orientation. Although the Attorney General of Alberta argues that there is no legislative distinction because any distinction based on sexual orientation exists in the society not in the law, this is rejected by the Court. Gays and lesbians do not enjoy formal equality with other protected groups under the Act. They also do not enjoy substantive equality when compared with heterosexuals.

The exclusion of the ground sexual orientation has a disproportionate impact on gays and lesbians as opposed to heterosexuals. It is not necessary to find that legislation creates the discrimination in society in order to determine that it creates a potentially discriminatory distinction. The "silence" of the IRPA is not "neutral". Gays and lesbians are treated differently from other disadvantaged groups and from heterosexuals. Other groups receive protection from discrimination on the grounds that are likely to be relevant to them.

There are two denials of equal benefit and protection of the law. By omission or underinclusiveness the Act both excludes gays and lesbians from the government's statement of policy against discrimination, and denies them access to the remedial procedures established by the Act.

This is discriminatory in that an equality right is denied on the basis of a personal characteristic which is analogous to other personal characteristics enumerated in s. 15. Also, the selective exclusion of one group from the comprehensive protection of human rights legislation is discriminatory in that it has discriminatory effects. This is exacerbated because the option of a civil remedy is not available, and because lesbians and gay men have not been successful in using other grounds to gain protection from discrimination. Also, the exclusion sends a strong and sinister message that discrimination against gays and lesbians is permissible and perhaps acceptable.

The Court concludes that the IRPA is discriminatory because it omits sexual orientation.

The Court then applies the test set out in R. v. Oakes to determine whether the omission of human rights protection is a reasonable limit on the equality rights of lesbians and gay men, within the meaning of s. 1 of the Charter. The Attorney General of Alberta's s. 1 defence fails at the first stage of the analysis. There is no pressing and substantial objective for the omission. It is not necessary to go further in the analysis. Even assuming that it were, the omission is not rationally connected to the goal of the IRPA; it is antithetical to it.

A government assertion that human rights protection is being introduced incrementally does not justify the failure to include lesbians and gay men, the Court rules. Deference to governments must not be carried too far. Regarding concerns about religious freedom, the Court finds that the IRPAcontains an internal mechanism that permit the rights of religion-based institutions and the rights of lesbians and gay men to be balanced. The challenged exclusion does not minimally impair the right to equality for lesbians and gay men. The exclusion is total. There is no proportionality between the legislative goal and the infringement.

The Court concludes that the omission of protection for lesbians and gay men is not a reasonable limit within the meaning of s. 1. The Court further concludes that reading sexual orientation into the IRPAis the most appropriate remedy.

In a concurring minority opinion, L'Heureux-Dubé J. disagrees with making grounds central to the s. 15 analysis. The effect of the legislative distinction on the individual or group is of greatest significance. Also, L'Heureux-Dubé J. rejects a narrow approach to defining analogous grounds.

Major J. dissents on the question of remedy. He finds that reading in is not appropriate. It would be preferable to grant a suspended declaration that the IRPA is invalid.

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