By: Jennifer Koshan
PDF Version: The Vriend Case 15 Years Later
Case and Legislation Commented On: Vriend v Alberta, [1998] 1 SCR 493; Alberta Human Rights Act, RSA 2000, c A-25.5
This year marks the 15th anniversary of the Supreme Court of Canada decision in Vriend v Alberta, [1998] 1 SCR 493 [Vriend] in which the Court unanimously held that the lack of protection for discrimination based on sexual orientation in Alberta’s human rights legislation was an unconstitutional violation of Charter equality rights (for a previous post on the Vriend decision by Linda McKay Panos, see here). To celebrate the anniversary Delwin Vriend visited Alberta this week, and his visit included participation in a public forum organized by the Sheldon Chumir Foundation for Ethics in Leadership, as well as a visit to my human rights class at the law school.
The public forum began with remarks from a number of panellists on the legal protection of discrimination based on sexual orientation at the international, national and provincial levels. Blair Mason, Chief Commissioner of the Alberta Human Rights Commission, noted that Mr. Vriend’s human rights claim had been blocked by the Alberta government back in 1991, after he was fired from his position as a lab instructor at King’s College in Edmonton for being gay. The government instructed the Commission not to accept complaints based on sexual orientation. Chief Commissioner Mason described how Mr. Vriend had pursued his complaint in spite of the barriers and opposition he faced, including intractability and prejudice on the part of the government. The Chief indicated that such interference with the independence of the Commission would not be tolerated today.
At both the public forum and in my human rights class, Mr. Vriend talked about the saga of the case from his perspective. Although he was not involved in framing the legal strategy, he was highly involved in the media response, which had its challenges. There were also access to justice challenges. Mr. Vriend initially had paid counsel representing him, but was eventually represented by pro bono lawyers. In spite of this, disbursements in the case totalled approximately $75,000, offset by fundraising efforts and ultimately a donation on the part of the family of one of his lawyers. As a class, we talked about the fact that human rights commissions are intended to be accessible processes that complainants can navigate without a lawyer, but that option was closed to Mr. Vriend. The inability of Alberta’s human rights commission to file complaints was raised as a continuing access to justice issue in Alberta as well (see the Alberta Human Rights Act, RSA 2000, c A-25.5, s 20). In spite of these challenges, Mr. Vriend was clear that he would make the same decision today to bring a constitutional challenge.
Another issue that was discussed at the public forum and at the law school was the Alberta government’s continued refusal to explicitly amend its human rights legislation to include sexual orientation until 2009. A majority of the Supreme Court in Vriend had granted the remedy of reading sexual orientation in to our human rights legislation, but in spite of this, it took the government 11 years to change its Act. Although complaints based on sexual orientation were accepted before the formal amendment was made, Linda McKay Panos described on the panel how this state of affairs created uncertainty, especially for newcomers.
And the eventual addition of sexual orientation came with a price. In 2009, the government added s 11.1 to the newly named Alberta Human Rights Act, which requires school boards to give notice to parents when teaching materials and lessons will deal with issues related to religion, human sexuality or sexual orientation. Parents may then request an opt out for their children. At the public forum, Dan Shapiro from the Chumir Foundation described how this section is having a chilling effect on discussions of sexual orientation in classrooms in Alberta (for the Foundation’s position paper on s 11.1, see here).
The lack of explicit protection of gender identity in the Alberta Human Rights Act was also raised in both forums. At the same time, the Human Rights Commission has indicated that it will accept complaints on this basis under the ground of gender, and there are some cases raising gender identity discrimination that are currently working their way through the human rights system in this province (see e.g. Greater St. Albert Roman Catholic Separate School, District No. 734 v Buterman, 2013 ABQB 485).
The federal government was also taken to task for failing to participate in a recent high level meeting of foreign ministers on discrimination against LGBT persons at the United Nations in September.
At both the forum and law school, there was discussion on the progress made in the area of LGBT rights, but also of the work that remains to be done. There is still a lack of formal protections against discrimination on the basis of sexual orientation and gender identity at the international level. Violence, oppression, discrimination and hatred continue to be perpetrated against LGBT persons nationally and internationally. Delwin Vriend’s visit to Alberta provided an excellent opportunity to reflect on these matters, and many people expressed their thanks to him for that, as well as for his courage and tenacity in pursuing his rights in Alberta.
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Terry Paden
Since the Premier of Alberta is a member of the Alberta Bar isn’t she more obligated than most in the Alberta Government to discover and rectify the Alberta Government’s continued long term resistance to updating our statutes on matters like human rights? Personally, I have not seen any evidence in the press that she has undertaken such statutory updating.
I have wondered if by not doing so she is not providing the leadership that law students might expect from a provincial Premier who is a law school graduate and an Alberta Bar member.
Terry Paden
Susan Wright
Thank you for this postscript to Mr Vriend’s saga. It is unconscionable that our legal protections have not yet caught up with what we’d expect in a province that says it protects human rights.
Jennifer Koshan
Thanks for your comments, Terry and Susan. One thing that came up at the public forum is that the Justice Minister, who is now responsible for Alberta’s human rights legislation, has said that he will not consider repealing s11.1 because there have been no complaints about this section. Members of the public who object to it were encouraged at the forum to make their voices heard to the government.
Gina
All things considered, if the Justice Minister has not received any complaints then the system is broken. The government is hindering the entire process and it is saddening that sexual orientation is not able to be discussed freely and openly in classrooms. I hope that in the near future further protections are given to the LGBT community although even here in the States we are behind the times and need to catch up. The department of Managed Health Care and the department of Insurance this year had to issue directives in order for health insurance companies to comply with the law in regards to covering transition related care.