Volume 1 Number 1 - Fall 1994
Discrimination
Sexual Orientation a Prohibited Ground of Discrimination in Alberta
Vriend v Alberta (Attorney General)
In a case decided on 12 April 1994,1 Russell J of the Alberta Court of Queen's Bench ruled that “sexual orientation” be read in as a prohibited ground of discrimination under Alberta's Individual's Rights Protection Act.
In doing so, Russell J relied heavily on the reasoning of Krever J.A. in Haig & Birch v Canada (Attorney General) (1992), 9 O.R. (3d) 495 (C.A.), the case that construed the Canadian Human Rights Act as including “sexual orientation” as a prohibited ground of discrimination. In both cases, the courts accepted the applicant's argument that the exclusion of sexual orientation as a prohibited ground of discrimination constituted an unjustified breach of the Canadian Charter of Rights and Freedoms' section 15(1) guarantee of equality.
In 1991, Vriend was dismissed from his position at King's College in Edmonton after he admitted to a superior that he was gay. The sole reason given for his termination was his noncompliance with the policy of the College with respect to homosexuality. The Alberta Human Rights Commission advised Vriend that it could not accept his complaint against his former employer because sexual orientation was not a prohibited ground of discrimination.
Russell J began by taking judicial notice of discrimination against homosexuals, characterizing such discrimination as “an historical, universal, notorious, and indisputable social reality... the subject of much judicial and social comment, and... the subject of provincial legislation elsewhere in Canada.” He then addressed the issue of whether the omission of sexual orientation under the Individual's Rights Protection Act violated section 15(1) of the Charter. In Vriend, the Attorney General of Alberta refused to concede that sexual orientation was an analogous ground of protection from discrimination under section 15(1), thus departing from the established practice of other attorneys general in Haig & Birch, supra, Egan v Canada (Attorney General) (1993), 103 D.L.R. (4th) 336 (F.C.A.), and Brown v British Columbia (Minister of Health) (1990), 66 D.L.R. (4th) 444.
Applying the reasoning in Andrews v Law Society of British Columbia, [1989] 1 S.C.R. 143, Russell J was of the view that not including sexual orientation as a prohibited ground of discrimination was discriminatory within the meaning of section 15(1) of the Charter. She found that, “[r]egardless of whether there was any intent to discriminate, the effect of the decision to deny homosexuals recognition under the legislation is to reinforce negative stereotyping and prejudice thereby perpetuating and implicitly condoning its occurrence.” The omission of sexual orientation under the Individual's Rights Protection Act could not be saved under section 1 of the Charter since, under the first part of the Oakes test, there was no evidence of a legislative purpose of pressing and substantial concern justifying the limitation. In fact, the exclusion of sexual orientation was found to be inconsistent with the statement of principle of the legislation itself, which recognizes the “inherent dignity and the equal and inalienable rights of all persons.”
Following the reasoning in Haig & Birch, Russell J determined that reading “sexual orientation” into the Act was the appropriate remedy in the circumstances. Addressing the issue of judicial concern for legislative intent, it was assumed that the legislature would have preferred a statute that included sexual orientation to no statute at all. Further, the budgetary impact associated with such an addition was found to be not so significant as to change the nature of the scheme of the legislation. The Crown had argued that reading in “sexual orientation” would substantially conflict with the legislative intent, given that successive Alberta governments had been opposed to amending the Act in order to prohibit discrimination against lesbians and gays. Russell J dismissed this objection out of hand, stating that “[i]f evidence of Government support were required before the court could read in a provision in underinclusive legislation, the remedy would seldom be available or necessary.”
The decision in Vriend has been appealed; if it is upheld, only three Canadian jurisdictions remain that do not afford lesbians and gays legal protection against discrimination: Newfoundland, the Northwest Territories and Prince Edward Island.
- Glenn Betteridge
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ENDNOTE
1 12 April 1994, no. 9203/04252, Alberta Queen's Bench, Edmonton, unreported.