Canadian Supreme Court Reverses Gay Academic's Firing

Instructor Delwin Vriend, who was fired from an ecumenical college in Alberta because of his sexual orientation, won his appeal to Canada’s Supreme Court, which found that the provincial human rights code was deficient in not aligning with section 15 of the federal Charter of Rights and Freedoms.

Date April 2, 1998

Also known as:Vriend v. Alberta

Locale Edmonton, Alberta, Canada

Key Figures

• Delwin Vriend instructor at King’s University College
• Ralph Klein (b. 1942), premier of the province of Alberta
• John Wesley McClung court of appeal judge

Summary of Event

Since 1988, Delwin Vriend had been a full-time lab instructor at King’s University College, a liberal arts college in Edmonton, Alberta, with about five hundred students run by the Christian Reformed Church, a conservative Christian denomination. Vriend’s work record was unblemished and he gained merit accordingly. However, his 1990 disclosure that he was gay prompted the school’s board of governors to adopt a position on homosexuality, enacted in the following year, and Vriend was fired for not complying with the new policy, which barred gays and lesbians from its staff.

Vriend was denied reinstatement after he appealed. Asserting that his employer had discriminated against him because of his sexual orientation, Vriend tried to file a complaint with the Alberta Human Rights Commission. The commission found, however, that the complaint had no merit under the province’s Individual Rights Protection Act (IRPA) because sexual orientation was not a protected ground. Vriend sued the commission in a lower court, where, in 1994, the trial judge ruled in his favor. The Alberta government appealed the decision and won its appeal in February, 1996.

In agreeing with the government’s petition, the court of appeal, in the 2-1 ruling, said 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 constitutional nature of Alberta’s civil rights act and laws need not reflect the federal charter perfectly. One of the judges, John Wesley McClung, went so far as to assert that sexual orientation could not be “read into” the IRPA by federal courts, which might be presumably motivated by contrary ideology. This was seen to be a preemptive action in the event that the Supreme Court of Canada, at some point in the future, should decide to hear an appeal from Vriend. When the Alberta government amended the IRPA in May of that year, it conspicuously left out sexual orientation.

Vriend indeed did appeal the case to the Supreme Court, which agreed to hear it, in November, 1997. The Alberta government argued that legislatures and not courts should decide on equality provisions. Nevertheless, on April 2, 1998, the court, in Vriend v. Alberta, agreed with Vriend, stating that the best remedy was to read sexual orientation as one of the protections covered by the IRPA.

Significance

The Vriend decision is significant as much for its favorable outcome—most other Canadian provinces already had similar laws in place—as for the almost visceral hatred it unleashed. Alberta, long known as the most deeply conservative province, has often cried of “judicial activism” against Canadian Supreme Court decisions that have run contrary to the province’s socially conservative values. In newspaper advertisements and columns and in calls from the pulpit, Alberta premier Ralph Klein was urged to invoke the override provision of the federal charter, in section 33, which is more popularly known as the “notwithstanding clause.” This clause allows any province to opt out, for a period of five years, of freedom provisions in federal legislation the province may deem contrary to its wishes. Klein, likely fearing the legislative and social mess that would result, declined.

Significant, too, is that the decision did not reinstate Vriend in his old job; rather, the court gave him the right to appeal. Since his former employer was a religious institution, it was exempt from certain legislation and would assert that its constitution allowed it to discriminate. Yet the Supreme Court’s decision, which is still used as a touchstone by those fighting against the federal government’s consideration of GLBT marriage, reveals that vigilance in gaining and maintaining protection under the law is always needed.

A subsequent Ontario case, M. v. H., illustrates the Vriend case’s legal impact: A lesbian couple separated; M. moved out of their common home and sued H. for spousal support pursuant to the Ontario Family Law Act. Section 29 of that act, however, stipulated that the support provisions in the law applied only to married and common-law spouses. M. went on to argue that this restrictive definition of “spouse” violated the rights of lesbians to equality under the federal charter. In 1999, the Supreme Court again agreed, giving the Ontario government six months to rewrite its provincial laws in relation to the case. It did, as did other provinces, including Alberta.

Bibliography

Laghi, Brian. “Rage Finds Its Voice in Alberta.” Globe and Mail, April 11, 1998.

Warner, Tom. Never Going Back: A History of Queer Activism in Canada. Buffalo, N.Y.: University of Toronto Press, 2002.