1998: Gay Teacher Wins Major
Civil Rights Case in Alberta, Canada.
Delwin Vriend was a laboratory coordinator at King's University College in Edmonton, Alberta. He was:
"... given a permanent, full-time position in 1988. Throughout his term of employment he received positive evaluations, salary increases and promotions for his work performance. In 1990, in response to an inquiry by the president of the College, ... [Vriend]
disclosed that he was homosexual. In early 1991, the college’s Board of Governors
adopted a position statement on homosexuality, and shortly thereafter, the president of
the college requested ... [his] resignation. ... [He] declined to resign, and his employment was terminated by the College. The sole reason given was his non-compliance with the college’s policy on homosexual practice. ... [He] appealed the termination and applied for
reinstatement, but was refused. 1
This college is a liberal arts school with a student body of about 700. It is affiliated with the Christian Reformed Church, a
conservative Christian denomination. 2
Vriend appealed to the Alberta Human
Rights Commission, an arm of the Provincial government. But they refused to
investigate his complaint, because discrimination on the basis of a person's sexual
orientation was not within the scope of the Alberta Individual Rights Protection Act (IRPA). So, Vriend sued the Alberta Human Rights Commission in a trial
court, where Madame Justice Anne Russell ruled in his favor.
During this time, in 1994,
Jack O'neill, the chief commissioner of the Alberta Human Rights Commission and deputy Minister of Culture and Multiculturalism in the Alberta government, was asked to review the state of civil rights in the province. He found both
angry opposition and spirited support for equal rights for gays. He recommended that the
provincial Act be extended to protect people on the basis of their sexual orientation. The government
declined to follow up on his recommendation.
The case reached the Alberta Court of Appeal:
The Government appealed the case to the Alberta Court of Appeal . Respondents
Gay and Lesbian Awareness Society of Edmonton (GALA) ,
Gay and Lesbian Community Centre of Edmonton, and
Dignity Canada Dignité (an association of gay and lesbian Catholics and
Supporting Delwin Vriend were:
Alberta Civil Liberties Association,
Canadian Human Rights Commission,and
Canadian Jewish Congress
Opposing to Delwin Vriend were:
Alberta Federation of Women United for Families,
The Evangelical Fellowship of Canada, the main national Evangelical Christian group, and
Focus on the Family (Canada) Association, a conservative Christian group.
The Court of Appeal, the highest court in the province, ruled against him on
1996-JUL-15. 3 The vote was 2:1. The majority decision stated that the omission of
sexual orientation from the Individual Rights Protection Act was not a
violation of section 15 of the Federal Charter of Rights and Freedoms, because the
constitutionality of a civil rights act is not dependent on a perfect emulation of the
Charter. (The Charter is Canada's Constitution).
Judge John Wesley McClung, writing for the majority, said that only the provincial legislature could change
the legislation. He denied that sexual orientation could be "read into"
the IRPA by the courts. He warned against "ideologically driven"
decisions by courts. This was presumably a warning to the Supreme Court of Canada to not attempt to overrule the decision of the Alberta government. The Supreme Court had
taken an pro-equality stance in the past on similar matters.
The sole dissenting
judge on the Court of Appeal stated that the Alberta Legislature's omission of sexual orientation is tantamount
to approving ongoing discrimination against homosexuals, and is thus a violation of
section 15 of the Charter.
The case Vriend v. Alberta was appealed to the Supreme Court of Canada:
On 1996-OCT-30, the Supreme Court agreed to hear the appeal. 4 John Fisher, the
Executive Director of Equality for Gays and Lesbians Everywhere (EGALE)
"By agreeing to hear the case, the Supreme Court has recognized the
importance of this issue. It is up to the Court to intervene, since the Legislature of
Alberta has refused to accord equality to lesbian and gay Albertans. ... Alberta risks being
seen as the dinosaur of the country and an embarrassment to Canadians unless its
Legislature acts to treat all its citizens equally. ... It is a sorry day for the Province
when the Government of Alberta is so committed to discrimination that it has to be dragged
before the highest court in the land rather than extend equality."
Hal Joffe, Chairperson of the Canadian Jewish Congress' National Community
Relations Committee stated that his group's':
"... interest is in ensuring that
citizens who believe that they have been discriminated against because of their sexual
orientation should not be denied the right to have the matter heard and adjudicated by the
relevant Human Rights Commission. ... Our submissions have stressed this fundamental aspect
of human rights, consistent with the federal Charter of Rights and Freedoms and the Canadian Human Rights Act, rather than the ultimate disposition of any such complaint or
the substantive aspects of Mr. Vriend’s grievance." 5
There were a total of 14 interveners in the Supreme Court case. One was the Evangelical
Fellowship of Canada, a leading national conservative Christian group. According to the EFC web site, their lawyer:
"... argued that
the court must respect the elected legislature's decision not to include 'sexual
orientation' in provincial human rights legislation."
Their lawyer also argued that if the court decided in favor of equal rights for persons with a homosexual orientation that:
"... there could be
serious ramifications to the right of a religious organization to require their employees
to adhere to moral standards based on the organization's religious beliefs." 6
In other words, the EFC's belief is that religious freedom includes the freedom for religiously-affiliated individuals, companies and organizations to discriminate against others in employment.
Three mechanisms had been suggested by which the Supreme Court could overrule the decision of the Alberta Court of Appeals:
The court could declare the entire provincial anti-discrimination act to be unconstitutional, effective immediately.
Unfortunately, this approach would deny citizens protection on the basis of their
religion, gender, nationality, etc. for some time until the government of Alberta could
create a replacement law.
They could declare that a clause would be "read into" the existing law which
extended the law to cover sexual orientation. That is, the law would be interpreted as if
it had always contained a sexual orientation clause.
They could declare the act to be unconstitutional and give the province a grace period
in which to modify the law. This approach might prove difficult. It is not obvious how the
legislature could pass such a law. Alberta is one of the most socially conservative of
Canadian provinces. A 1996 poll by the Angus Reid Group indicated that 59% of
Canadian adults favored protection against discrimination for gays and lesbians. But only
40% of Albertans agreed. It might be difficult for a majority of MLAs to vote in favor of such a bill. Legislators tend to be more
conservative than the general population on ethical matters.
In advance of the decision, Pastor Olson, chairperson of the Edmonton Area Ministerial Association (EAMA) -- an evangelical Christian group -- said that if a Supreme Court of Canada ruling forces Alberta to
recognize gays under its Individual's Rights Protection Act, it will give the moral stamp
of approval to that sexual behavior. Olson said:
"We believe that lying, adultery,
fornication, drunkenness are harmful, and so is homosexuality..."
The Supreme Court issued its ruling on 1998-APR-02. The Justices determined that the Alberta Individual
Rights Protection Act violated the federal Charter of Rights and Freedoms. They
"read into" the existing law a clause giving equal rights for persons
of all sexual orientations. The vote was 7 to 1. Mr. Justice Jack Major expressed the
minority position. Although he agreed that the exclusion of sexual orientation violated
the Charter, he felt that the province should be allowed to repair the act on its own.
Mr. Justice Peter Cory wrote the majority decision, saying:
"The exclusion [of gays and lesbians] sends a message to all Albertans that it
is permissible and perhaps even acceptable, to discriminate against individuals on the
basis of their sexual orientation. ... Perhaps most important is the psychological harm which
may ensure from this state of affairs. Fear of discrimination will logically lead to
concealment of true identity, and this must be harmful to personal confidence and