Canadian Supreme Court Reverses Gay Academic's Firing
In a landmark decision, the Canadian Supreme Court addressed the case of Delwin Vriend, a gay academic who was dismissed from King's University College in Alberta due to his sexual orientation. Vriend, who had been a dedicated lab instructor since 1988, was fired after the institution implemented a policy prohibiting the employment of individuals identified as gay or lesbian, following his public disclosure of his sexual orientation. Initially, Vriend faced challenges in seeking justice, as the Alberta Human Rights Commission found that sexual orientation was not a protected ground under the province's Individual Rights Protection Act. However, after a series of legal battles, the Supreme Court ruled in April 1998 that sexual orientation should indeed be included as a protected ground under the Act.
This decision not only reinstated Vriend's right to appeal his dismissal but also served as a significant precedent in the ongoing struggle for LGBTQ+ rights in Canada. The ruling sparked considerable debate in Alberta, a province noted for its conservative stance on social issues, leading to calls for the provincial government to invoke the "notwithstanding clause" to override the Supreme Court's decision. Despite the polarized reactions, the Vriend case is recognized as a pivotal moment in advancing anti-discrimination laws in Canada, influencing subsequent legal outcomes regarding LGBTQ+ rights across various provinces.
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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 CollegeRalph Klein (b. 1942), premier of the province of AlbertaJohn 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.
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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.