Sexual orientation “read into” Alberta’s human rights legislation
Supreme Court holds the exclusion of sexual orientation from human rights grounds of discrimination violated the Charter
In Vriend v. Alberta, the Supreme Court of Canada held that the exclusion of sexual orientation from Alberta’s human rights statute violates s. 15 of the Canadian Charter of Rights and Freedoms.
Background
Delwin Vriend was employed as a laboratory coordinator in an Alberta college. He had received positive performance evaluations, salary increases and promotions. He was fired when his employer found out he was gay.
Vriend attempted to file a human rights complaint. The Alberta Human Rights Commission refused to accept his complaint because sexual orientation was not protected under the Individual’s Rights Protection Act.
Vriend challenged the exclusion of sexual orientation from the Act. He maintained that the exclusion violated his equality rights under the Canadian Charter of Rights and Freedoms. The trial judge agreed that the equality provisions of the Charter had been violated.
However, a majority of the Alberta Court of Appeal granted the province’s appeal. One of the Court of Appeal judges referred to Vriend’s claim as an effort to seek “the validation of homosexual relations, including sodomy, as a protected and fundamental right…rebutting a millennia of moral teaching”. Shockingly, the judge also likened the protection of sexual orientation in human rights legislation with the “violently aberrant sexual configurations” of mass murderers Jeffrey Dahmer, Paul Bernardo and Clifford Olsen. Vriend appealed to the Supreme Court of Canada.
The Supreme Court’s decision
The Supreme Court of Canada overturned the Court of Appeal’s decision. It held that the exclusion of sexual orientation as a ground of discrimination in the Individual’s Rights Protection Act created a distinction which resulted in the denial of equal benefit and protection of the law on the basis of sexual orientation. That exclusion imposed a disadvantage on gays and lesbians and withheld a benefit that was available to others. It also sent a message to Albertans that it was permissible, and perhaps even acceptable, to discriminate against gays and lesbians on the basis of sexual orientation.
The Court also held that the discrimination could not be saved under s.1 of the Charter. Alberta did not claim that it had a pressing and substantial objective (a required element in the s. 1 test). Moreover, the Court found that the exclusion was, on its face, the very antithesis of the principles embodied in human rights legislation.
The Court determined that it should not wait for the province to amend the Act. It decided to “read” sexual orientation into the Act. That meant that the Act was to be treated as including sexual orientation as a protected ground of discrimination from the date of the Supreme Court’s decision.
Steven Barrett and Vanessa Payne represented the intervener Canadian Labour Congress and Cynthia Petersen represented the intervener, Egale Canada.