Vriend v. Alberta

Vriend v. Alberta
Collection
Supreme Court Judgments
Date
1998-04-02
Report
[1998] 1 SCR 493
Case number
25285
Judges
Lamer, Antonio; L'Heureux-Dubé, Claire; Sopinka, John; Gonthier, Charles Doherty; Cory, Peter deCarteret; McLachlin, Beverley; Iacobucci, Frank; Major, John C.; Bastarache, Michel
On appeal from
Alberta
Subjects
Action
Constitutional law
Notes
SCC Case Information: 25285
Decision Content
Vriend v. Alberta, [1998] 1 S.C.R. 493
Delwin Vriend, Gala‑Gay and Lesbian
Awareness Society of Edmonton,
Gay and Lesbian Community Centre of
Edmonton Society and Dignity Canada Dignité
for Gay Catholics and Supporters Appellants
v.
Her Majesty The Queen in Right of Alberta and
Her Majesty’s Attorney General in and for
the Province of Alberta Respondents
and
The Attorney General of Canada, the Attorney General
for Ontario, the Alberta Civil Liberties Association,
Equality for Gays and Lesbians Everywhere (EGALE),
the Women’s Legal Education and Action Fund (LEAF), the Foundation
for Equal Families, the Canadian Human Rights Commission,
the Canadian Labour Congress, the Canadian Bar Association --
Alberta Branch, the Canadian Association of Statutory Human
Rights Agencies (CASHRA), the Canadian AIDS Society,
the Alberta and Northwest Conference of the United Church of
Canada, the Canadian Jewish Congress, the Christian Legal
Fellowship, the Alberta Federation of Women United for
Families, the Evangelical Fellowship of Canada and Focus
on the Family (Canada) Association Interveners
Indexed as: Vriend v. Alberta
File No.: 25285.
1997: November 4; 1998: April 2.
Present: Lamer C.J. and L’Heureux‑Dubé, Sopinka,* Gonthier, Cory, McLachlin, Iacobucci, Major and Bastarache JJ.
on appeal from the court of appeal for alberta
Practice -- Standing -- Charter challenge -- Teacher’s employment at college terminated because of his homosexuality -- Provincial human rights legislation not including sexual orientation as prohibited ground of discrimination -- Whether appellants have standing to challenge legislative provisions other than those relating to employment -- Canadian Charter of Rights and Freedoms, ss. 1 , 15(1) -- Individual’s Rights Protection Act, R.S.A. 1980, c. I-2, preamble, ss. 2(1), 3, 4, 7(1), 8(1), 10, 16(1).
Constitutional law -- Charter of Rights -- Application -- Legislative omission -- Provincial human rights legislation not including sexual orientation as prohibited ground of discrimination -- Whether Charter applies to legislation -- Canadian Charter of Rights and Freedoms, s. 32(1) -- Individual’s Rights Protection Act, R.S.A. 1980, c. I‑2.
Constitutional law -- Charter of Rights -- Equality rights -- Provincial human rights legislation not including sexual orientation as prohibited ground of discrimination -- Whether non-inclusion of sexual orientation infringes right to equality -- If so, whether infringement justified -- Canadian Charter of Rights and Freedoms, ss. 1 , 15(1) -- Individual’s Rights Protection Act, R.S.A. 1980, c. I-2, preamble, ss. 2(1), 3, 4, 7(1), 8(1), 10, 16(1).
Constitutional law -- Charter of Rights -- Remedies -- Reading in -- Non-inclusion of sexual orientation in provincial human rights legislation infringing right to equality -- Whether sexual orientation should be read into legislation -- Constitution Act, 1982, s. 52 -- Individual’s Rights Protection Act, R.S.A. 1980, c. I-2, preamble, ss. 2(1), 3, 4, 7(1), 8(1), 10, 16(1).
The appellant V was employed as a laboratory coordinator by a college in Alberta, and was given a permanent, full‑time position in 1988. Throughout his term of employment he received positive evaluations, salary increases and promotions for his work performance. In 1990, in response to an inquiry by the president of the college, V disclosed that he was homosexual. In early 1991, the college’s board of governors adopted a position statement on homosexuality, and shortly thereafter, the president of the college requested V’s resignation. V declined to resign, and his employment was terminated by the college. The sole reason given was his non‑compliance with the college’s policy on homosexual practice. V appealed the termination and applied for reinstatement, but was refused. He attempted to file a complaint with the Alberta Human Rights Commission on the grounds that his employer had discriminated against him because of his sexual orientation, but the Commission advised V that he could not make a complaint under the Individual’s Rights Protection Act (IRPA), because it did not include sexual orientation as a protected ground. V and the other appellants filed a motion in the Court of Queen’s Bench for declaratory relief. The trial judge found that the omission of protection against discrimination on the basis of sexual orientation was an unjustified violation of s. 15 of the Canadian Charter of Rights and Freedoms . She ordered that the words “sexual orientation” be read into ss. 2(1), 3, 4, 7(1), 8(1) and 10 of the IRPA as a prohibited ground of discrimination. The majority of the Court of Appeal allowed the Alberta government’s appeal.
Held (Major J. dissenting in part on the appeal): The appeal should be allowed and the cross-appeal dismissed. The preamble and ss. 2(1), 3, 4, 7(1), 8(1), 10 and 16(1) of the IRPA infringe s. 15(1) of the Charter and the infringement is not justifiable under s. 1 . As a remedy, the words “sexual orientation” should be read into the prohibited grounds of discrimination in these provisions.
Per Lamer C.J. and Gonthier, Cory, McLachlin, Iacobucci and Bastarache JJ.: The appellants have standing to challenge the validity of the preamble and ss. 2(1), 3, 4, 7(1), 8(1), 10 and 16(1) of the IRPA. A serious issue as to constitutional validity is raised with respect to all these provisions. V and the other appellants also have a direct interest in the exclusion of sexual orientation from all forms of discrimination. Finally, the only other way the issue could be brought before the Court with respect to the sections of the Act other than those relating to employment would be to wait until someone is discriminated against on the ground of sexual orientation in housing, goods and services, etc. and challenge the validity of the provision in each appropriate case. This would not only be wasteful of judicial resources, but also unfair in that it would impose burdens of delay, cost and personal vulnerability to discrimination for the individuals involved in those eventual cases. Since the provisions are all very similar and do not depend on any particular factual context in order to resolve their constitutional status, there is really no need to adduce additional evidence regarding the provisions concerned with discrimination in areas other than employment.
The respondents’ argument on their cross-appeal that because this case concerns a legislative omission, s. 15 of the Charter should not apply pursuant to s. 32 cannot be accepted. The threshold test that there be some “matter within the authority of the legislature” which is the proper subject of a Charter analysis has been met. The fact that it is the underinclusiveness of the IRPA which is at issue does not alter the fact that it is the legislative act which is the subject of Charter scrutiny in this case. Furthermore, the language of s. 32 does not limit the application of the Charter merely to positive actions encroaching on rights or the excessive excercise of authority. Where, as here, the challenge concerns an Act of the legislature that is underinclusive as a result of an omission, s. 32 should not be interpreted as precluding the application of the Charter . The application of the Charter to the IRPA does not amount to applying it to private activity. Since the constitutional challenge here concerns the IRPA, it deals with laws that regulate private activity, and not the acts of a private entity.
While this Court has not adopted a uniform approach to s. 15(1) , in this case any differences in approach would not affect the result. The essential requirements of a s. 15(1) analysis will be satisfied by inquiring first, whether there is a distinction which results in the denial of equality before or under the law, or of equal protection or benefit of the law; and second, whether this denial constitutes discrimination on the basis of an enumerated or analogous ground. The omission of sexual orientation as a protected ground in the IRPA creates a distinction that is simultaneously drawn along two different lines. The first is the distinction between homosexuals and other disadvantaged groups which are protected under the Act. Gays and lesbians do not have formal equality with reference to other protected groups, since those other groups are explicitly included and they are not. The second, more fundamental, distinction is between homosexuals and heterosexuals. The exclusion of the ground of sexual orientation, considered in the context of the social reality of discrimination against gays and lesbians, clearly has a disproportionate impact on them as opposed to heterosexuals. The IRPA in its underinclusive state therefore denies substantive equality to the former group. By reason of its underinclusiveness, the IRPA creates a distinction which results in the denial of the equal benefit and protection of the law on the basis of sexual orientation, a personal characteristic which is analogous to those enumerated in s. 15(1) . This, in itself, is sufficient to conclude that discrimination is present and that there is a violation of s. 15 . The serious discriminatory effects of the exclusion of sexual orientation from the Act reinforce this conclusion. The distinction has the effect of imposing a burden or disadvantage not imposed on others and of withholding benefits or advantages which are available to others. The first and most obvious effect of the exclusion of sexual orientation is that lesbians or gay men who experience discrimination on the basis of their sexual orientation are denied recourse to the mechanisms set up by the IRPA to make a formal complaint of discrimination and seek a legal remedy. The dire and demeaning effect of denial of access to remedial procedures is exacerbated by the fact that the option of a civil remedy for discrimination is precluded and by the lack of success that lesbian women and gay men have had in attempting to obtain a remedy for discrimination on the ground of sexual orientation by complaining on other grounds such as sex or marital status. Furthermore, the exclusion from the IRPA’s protection sends a message to all Albertans that it is permissible, and perhaps even acceptable, to discriminate against individuals on the basis of their sexual orientation. Perhaps most important is the psychological harm which may ensue from this state of affairs. In excluding sexual orientation from the IRPA’s protection, the government has, in effect, stated that “all persons are equal in dignity and rights” except gay men and lesbians. Such a message, even if it is only implicit, must offend s. 15(1) .
The exclusion of sexual orientation from the IRPA does not meet the requirements of the Oakes test and accordingly cannot be saved under s. 1 of the Charter . Where a law has been found to violate the Charter owing to underinclusion, the legislation as a whole, the impugned provisions, and the omission itself are all properly considered in determining whether the legislative objective is pressing and substantial. In the absence of any submissions regarding the pressing and substantial nature of the objective of the omission at issue here, the respondents have failed to discharge their evidentiary burden and their case must thus fail at this first stage of the s. 1 analysis. Even if the evidentiary burden were to be put aside in an attempt to discover an objective for the omission from the provisions of the IRPA, the result would be the same. Where, as here, a legislative omission is on its face the very antithesis of the principles embodied in the legislation as a whole, the Act itself cannot be said to indicate any discernible objective for the omission that might be described as pressing and substantial so as to justify overriding constitutionally protected rights.
Far from being rationally connected to the objective of the impugned provisions, the exclusion of sexual orientation from the Act is antithetical to that goal. With respect to minimal impairment, the Alberta government has failed to demonstrate that it had a reasonable basis for excluding sexual orientation from the IRPA. Gay men and lesbians do not have any, much less equal, protection against discrimination on the basis of sexual orientation under the IRPA. The exclusion constitutes total, not minimal, impairment of the Charter guarantee of equality. Finally, since the Alberta government has failed to demonstrate any salutary effect of the exclusion in promoting and protecting human rights, there is no proportionality between the attainment of the legislative goal and the infringement of the appellants’ equality rights.
Reading sexual orientation into the impugned provisions of the IRPA is the most appropriate way of remedying this underinclusive legislation. When determining whether reading in is appropriate, courts must have regard to the twin guiding principles of respect for the role of the legislature and respect for the purposes of the Charter . The purpose of the IRPA is the recognition and protection of the inherent dignity and inalienable rights of Albertans through the elimination of discriminatory practices. Reading sexual orientation into the offending sections would minimize interference with this clearly legitimate legislative purpose and thereby avoid excessive intrusion into the legislative sphere whereas striking down the IRPA would deprive all Albertans of human rights protection and thereby unduly interfere with the scheme enacted by the legislature. It is reasonable to assume that, if the legislature had been faced with the choice of having no human rights statute or having one that offered protection on the ground of sexual orientation, the latter option would have been chosen.
Per L’Heureux-Dubé J.: There is general agreement with the results reached by the majority. While the approach to s. 1 is agreed with, the proper approach to s. 15(1) of the Charter is reiterated. Section 15(1) is first and foremost an equality provision. Its primary mission is the promotion of a society in which all are secure in the knowledge that they are recognized at law as human beings equally deserving of concern, respect and consideration. A s. 15(1) analysis should focus on uncovering and understanding the negative impacts of a legislative distinction (including, as in this case, a legislative omission) on the affected individual or group, rather than on whether the distinction has been made on an enumerated or analogous ground. Integral to an inquiry into whether a legislative distinction is discriminatory within the meaning of s. 15(1) is an appreciation of both the social vulnerability of the affected individual or group, and the nature of the interest which is affected in terms of its importance to human dignity and personhood. Section 15(1) is engaged when the impact of a legislative distinction deprives an individual or group who has been found to be disadvantaged in our society of the law’s protection or benefit in a way which negatively affects their human dignity and personhood. Although the presence of enumerated and analogous grounds may be indicia of discrimination, or may even raise a presumption of discrimination, it is in the appreciation of the nature of the individual or group who is being negatively affected that they should be examined.
Per Major J. (dissenting in part on the appeal): The Alberta legislature, having enacted comprehensive human rights legislation that applies to everyone in the province, has then selectively denied the protection of the Act to people with a different sexual orientation. No explanation was given for the exclusion of sexual orientation from the prohibited grounds of discrimination in the IRPA, and none is apparent from the evidence filed by the province. The inescapable conclusion is that there is no reason to exclude that group from s. 7 of the Charter and to do so is discriminatory and offends their constitutional rights. The words “sexual orientation” should not be read into the Act, however. While reading in may be appropriate where it can be safely assumed that the legislature itself would have remedied the underinclusiveness by extending the benefit or protection to the previously excluded group, that assumption cannot be made in this appeal. It may be that the legislature would prefer no human rights Act over one that includes sexual orientation as a prohibited ground of discrimination. As well, there are numerous ways in which the legislation could be amended to address the underinclusiveness. As an alternative, given the legislature’s persistent refusal to protect against discrimination on the basis of sexual orientation, it may be that it would choose to override the Charter breach by invoking the notwithstanding clause in s. 33 of the Charter . In any event it should lie with the elected legislature to determine this issue. The offending sections should be declared invalid and the legislature provided with an opportunity to rectify them. The declaration of invalidity should be restricted to the employment-related provisions of the IRPA, namely ss. 7(1) , 8(1) and 10 . While the same conclusions may apply to the remaining provisions of the IRPA, Charter cases should not be considered in a factual vacuum. The declaration of invalidity should be suspended for one year to allow the legislature an opportunity to bring the impugned provisions into line with its constitutional obligations.
Cases Cited
By Cory and Iacobucci JJ.
Referred to: Egan v. Canada, [1995] 2 S.C.R. 513; Haig v. Canada (1992), 9 O.R. (3d) 495; McKinney v. University of Guelph, [1990] 3 S.C.R. 229; Schachter v. Canada, [1992] 2 S.C.R. 679; Miron v. Trudel, [1995] 2 S.C.R. 418; Thibaudeau v. Canada, [1995] 2 S.C.R. 627; Re Blainey and Ontario Hockey Association (1986), 54 O.R. (2d) 513, leave to appeal refused, [1986] 1 S.C.R. xii; Dickason v. University of Alberta, [1992] 2 S.C.R. 1103; B. (R.) v. Children’s Aid Society of Metropolitan Toronto, [1995] 1 S.C.R. 315; Canadian Council of Churches v. Canada (Minister of Employment and Immigration), [1992] 1 S.C.R. 236; Mahe v. Alberta, [1990] 1 S.C.R. 342; Reference re Public Schools Act (Man.), s. 79(3), (4) and (7), [1993] 1 S.C.R. 839; Haig v. Canada, [1993] 2 S.C.R. 995; Reference re Public Service Employee Relations Act (Alta.), [1987] 1 S.C.R. 313; Eldridge v. British Columbia (Attorney General), [1997] 3 S.C.R. 624; RWDSU v. Dolphin Delivery Ltd., [1986] 2 S.C.R. 573; Tremblay v. Daigle, [1989] 2 S.C.R. 530; Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143; R. v. Turpin, [1989] 1 S.C.R. 1296; Benner v. Canada (Secretary of State), [1997] 1 S.C.R. 358; Eaton v. Brant County Board of Education, [1997] 1 S.C.R. 241; Knodel v. British Columbia (Medical Services Commission) (1991), 58 B.C.L.R. (2d) 356; Brooks v. Canada Safeway Ltd., [1989] 1 S.C.R. 1219; Bliss v. Attorney General of Canada, [1979] 1 S.C.R. 183; R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295; Romer v. Evans, 116 S.Ct. 1620 (1996); R. v. Oakes, [1986] 1 S.C.R. 103; RJR-MacDonald Inc. v. Canada (Attorney General), [1995] 3 S.C.R. 199; Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927; Tétreault-Gadoury v. Canada (Employment and Immigration Commission), [1991] 2 S.C.R. 22; R. v. Keegstra, [1990] 3 S.C.R. 697; Newfoundland (Human Rights Commission) v. Newfoundland (Minister of Employment and Labour Relations) (1995), 127 D.L.R. (4th) 694.
By L’Heureux-Dubé J.
Referred to: Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143; Egan v. Canada, [1995] 2 S.C.R. 513; Miron v. Trudel, [1995] 2 S.C.R. 418.
By Major J. (dissenting in part)
Schachter v. Canada, [1992] 2 S.C.R. 679; Hunter v. Southam Inc., [1984] 2 S.C.R. 145; MacKay v. Manitoba, [1989] 2 S.C.R. 357.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms, ss. 1 , 7 , 15(1) , 24(1) , 32(1) , 33 .
Canadian Human Rights Act, R.S.C., 1985, c. H-6, s. 3(1) .
Constitution Act, 1867, s. 92 .
Constitution Act, 1982, s. 52(1) .
Criminal Code, R.S.C., 1985, c. C-46, s. 718.2 (a)(i) [ad. 1995, c. 22, s. 6].
Human Rights, Citizenship and Multiculturalism Act, R.S.A. 1980, c. H‑11.7, preamble, ss. 2(1), 3, 4 , 7 , 8 , 10 , 11.1 , 16(1) .
Individual’s Rights Protection Act, R.S.A. 1980, c. I‑2 [am. 1985, c. 33; am. 1990, c. 23], preamble, ss. 2(1), 3, 4 , 7 , 8 , 10 , 11.1 , 16(1) .
Individual’s Rights Protection Act, S.A. 1972 [am. 1980, c. 27], c. 2, ss. 2, 3, 4, 6, 7, 9.
Individual’s Rights Protection Amendment Act, 1996, S.A. 1996, c. 25.
Authors Cited
Ackerman, Bruce. “The Rise of World Constitutionalism” (1997), 83 Va. L. Rev. 771.
Alberta. Our Commitment to Human Rights: The Government’s Response to the Recommendations of the Alberta Human Rights Review Panel. Edmonton: Alberta Community Development, 1995.
Alberta Hansard, November 22, 1972, at p. 80‑63.
Alberta Human Rights Review Panel. Equal in Dignity and Rights: A Review of Human Rights in Alberta. Edmonton: The Panel, 1994.
Beatty, David M. Constitutional Law in Theory and Practice. Toronto: University of Toronto Press, 1995.
Beatty, David M. “Law and Politics” (1996), 44 Am. J. Comp. L. 131.
Beatty, David M., ed. Human Rights and Judicial Review: A Comparative Perspective. Dordrecht, The Netherlands: Martinus Nijhoff, 1994.
Bickel, Alexander M. The Least Dangerous Branch: The Supreme Court at the Bar of Politics, 2nd ed. New Haven: Yale University Press, 1986.
Black, William. “Vriend, Rights and Democracy” (1996), 7 Constitutional Forum 126.
Dickson, R. G. B. “Keynote Address”, in The Cambridge Lectures 1985. Montréal: Yvon Blais, 1985.
Ely, John Hart. Democracy and Distrust: A Theory of Judicial Review. Cambridge: Harvard University Press, 1980.
Hogg, Peter W., and Allison A. Bushell. “The Charter Dialogue Between Courts and Legislatures” (1997), 35 Osgoode Hall L.J. 75.
Jackman, Martha. “Protecting Rights and Promoting Democracy: Judicial Review Under Section 1 of the Charter ” (1996), 34 Osgoode Hall L.J. 661.
Khullar, Ritu. “Vriend: Remedial Issues for Unremedied Discrimination” (1998), 7 N.J.C.L. 221.
Knopff, Rainer, and F. L. Morton. Charter Politics. Scarborough, Ont.: Nelson Canada, 1992.
Mandel, Michael. The Charter of Rights and the Legalization of Politics in Canada. Toronto: Wall & Thompson, 1994.
Monahan, Patrick. “A Theory of Judicial Review Under the Charter ”, in Politics and the Constitution: The Charter , Federalism and the Supreme Court of Canada. Toronto: Carswell, 1987, 97.
O’Byrne, Shannon K., and James F. McGinnis. “Case Comment: Vriend v. Alberta: Plessy Revisited: Lesbian and Gay Rights in the Province of Alberta” (1996), 34 Alta. L. Rev. 892.
Peacock, Anthony A., ed. Rethinking the Constitution: Perspectives on Canadian Constitutional Reform, Interpretation, and Theory. Don Mills, Ont.: Oxford University Press, 1996.
Pothier, Dianne. “The Sounds of Silence: Charter Application when the Legislature Declines to Speak” (1996), 7 Constitutional Forum 113.
Renke, Wayne N. “Case Comment: Vriend v. Alberta: Discrimination, Burdens of Proof, and Judicial Notice” (1996), 34 Alta. L. Rev. 925.
Roach, Kent. Constitutional Remedies in Canada. Aurora, Ont.: Canada Law Book, 1994 (loose-leaf updated November 1997, release 4).
Rogerson, Carol. “The Judicial Search for Appropriate Remedies Under the Charter : The Examples of Overbreadth and Vagueness”. In Robert J. Sharpe, ed. Charter Litigation. Toronto: Butterworths, 1987, 233.
APPEAL and CROSS-APPEAL from a judgment of the Alberta Court of Appeal (1996), 181 A.R. 16, 116 W.A.C. 16, 37 Alta. L.R. (3d) 364, [1996] 5 W.W.R. 617, 132 D.L.R. (4th) 595, 18 C.C.E.L. (2d) 1, 96 C.L.L.C. ¶230-013, 25 C.H.R.R. D/1, 34 C.R.R. (2d) 243, [1996] A.J. No. 182 (QL), reversing a decision of the Court of Queen’s Bench (1994), 152 A.R. 1, 18 Alta. L.R. (3d) 286, [1994] 6 W.W.R. 414, 94 C.L.L.C. ¶17,025, 20 C.H.R.R. D/358, [1994] A.J. No. 272 (QL), finding that the omission of protection against discrimination on the basis of sexual orientation from the Alberta Individual’s Rights Protection Act was an unjustified violation of s. 15(1) of the Canadian Charter of Rights and Freedoms . Appeal allowed, Major J. dissenting in part. Cross-appeal dismissed.
Sheila J. Greckol, Douglas R. Stollery, Q.C., June Ross and Jo-Ann R. Kolmes, for the appellants.
John T. McCarthy, Q.C., and Donna Grainger, for the respondents.
Brian Saunders and James Hendry, for the intervener the Attorney General of Canada.
Robert E. Charney, for the intervener the Attorney General for Ontario.
Shirish P. Chotalia and Brian A. F. Edy, for the intervener the Alberta Civil Liberties Association.
Cynthia Petersen, for the intervener Equality for Gays and Lesbians Everywhere (EGALE).
Gwen Brodsky and Claire Klassen, for the intervener Women’s Legal Education and Action Fund (LEAF).
Raj Anand and Andrew M. Pinto, for the intervener the Foundation for Equal Families.
William F. Pentney and Patricia Lawrence, for the intervener the Canadian Human Rights Commission.
Steven M. Barrett and Vanessa Payne, for the intervener the Canadian Labour Congress.
James L. Lebo, Q.C., James F. McGinnis and Julia C. Lloyd, for the intervener the Canadian Bar Association -- Alberta Branch.
Thomas S. Kuttner and Rebecca Johnson, for the intervener the Canadian Association of Statutory Human Rights Agencies (CASHRA).
R. Douglas Elliott and Patricia A. LeFebour, for the intervener the Canadian AIDS Society.
Dale Gibson, for the intervener the Alberta and Northwest Conference of the United Church of Canada.
Lyle S. R. Kanee, for the intervener the Canadian Jewish Congress.
Barbara B. Johnston, for the intervener Christian Legal Fellowship.
Dallas K. Miller, for the intervener the Alberta Federation of Women United for Families.
Gerald D. Chipeur and Cindy Silver, for the interveners the Evangelical Fellowship of Canada and Focus on the Family (Canada) Association.
The judgment of Lamer C.J. and Gonthier, Cory, McLachlin, Iacobucci and Bastarache was delivered by
1 Cory and Iacobucci JJ. -- In these joint reasons Cory J. has dealt with the issues pertaining to standing, the application of the Canadian Charter of Rights and Freedoms , and the breach of s. 15(1) of the Charter . Iacobucci J. has discussed s. 1 of the Charter , the appropriate remedy, and the disposition.
Cory J.
2 The Individual’s Rights Protection Act, R.S.A. 1980, c. I‑2 (“IRPA” or the “Act”), was first enacted in 1973. When the legislation was introduced in 1972, the Minister responsible commented upon and emphasized the nature and importance of the Act, stating: “it is . . . the commitment of this legislature that we regard The Individual’s Rights Protection Act in primacy to any other legislative enactment. . . . [W]e have committed ourselves to suggest that Alberta is not the place for partial rights or half freedoms, but that Alberta hopefully will become the place where each and every man and woman will be able to stand on his own two feet and be recognized as an individual and not as a member of a particular class” (Alberta Hansard, November 22, 1972, at p. 80‑63). These are courageous words that give hope and comfort to members of every group that has suffered the wounds and indignities of discrimination. Has this laudable commitment been met?
I. Factual Background
A. History of the IRPA
3 The IRPA prohibits discrimination in a number of areas of public life, and establishes the Human Rights Commission to deal with complaints of discrimination. The IRPA as first enacted (S.A. 1972, c. 2) prohibited discrimination in public notices (s. 2), public accommodation, services or facilities (s. 3), tenancy (s. 4), employment practices (s. 6), employment advertising (s. 7 ) or trade union membership (s. 9) on the basis of race, religious beliefs, colour, sex, marital status (in ss. 6 and 9), age (except in ss. 3 and 4), ancestry or place of origin. The Act has since been expanded to include other grounds, in a series of amendments (S.A. 1980, c. 27; S.A. 1985, c. 33; S.A. 1990, c. 23; S.A. 1996, c. 25). These additions were apparently, at least in part, made in response to the enactment of the Charter and its judicial interpretation. In the most recent amendments the name of the Act was changed to the Human Rights, Citizenship and Multiculturalism Act. In 1990, the Act included the following list of prohibited grounds of discrimination: race, religious beliefs, colour, gender, physical disability, mental disability, age, ancestry and place of origin. At the present time it also includes marital status, source of income and family status.
4 Despite repeated calls for its inclusion sexual orientation has never been included in the list of those groups protected from discrimination. In 1984 and again in 1992, the Alberta Human Rights Commission recommended amending the IRPA to include sexual orientation as a prohibited ground of discrimination. In an attempt to effect such an amendment, the opposition introduced several bills; however, none went beyond first reading. Although at least one Minister responsible for the administration of the IRPA supported the amendment, the correspondence with a number of cabinet members and members of the Legislature makes it clear that the omission of sexual orientation from the IRPA was deliberate and not the result of an oversight. The reasons given for declining to take this action include the assertions that sexual orientation is a “marginal” ground; that human rights legislation is powerless to change public attitudes; and that there have only been a few cases of sexual orientation discrimination in employment brought to the attention of the Minister.
5 In 1992, the Human Rights Commission decided to investigate complaints of discrimination on the basis of sexual orientation. This decision was immediately vetoed by the Government and the Minister directed the Commission not to investigate the complaints.
6 In 1993, the Government appointed the Alberta Human Rights Review Panel to conduct a public review of the IRPA and the Human Rights Commission. When it had completed an extensive review, the Panel issued its report, entitled Equal in Dignity and Rights: A Review of Human Rights in Alberta (1994) (the “Dignity Report”). The report contained a number of recommendations, one of which was that sexual orientation should be included as a prohibited ground of discrimination in the Act. In its response to the Dignity Report (Our Commitment to Human Rights: The Government’s Response to the Recommendations of the Alberta Human Rights Review Panel (1995)), the Government stated that the recommendation regarding sexual orientation would be dealt with through this case.
B. Vriend’s Dismissal From King’s College and Complaint to the Alberta Human Rights Commission
7 In December 1987 the appellant Delwin Vriend was employed as a laboratory coordinator by King’s College in Edmonton, Alberta. He was given a permanent, full‑time position in 1988. Throughout his term of employment he received positive evaluations, salary increases and promotions for his work performance. On February 20, 1990, in response to an inquiry by the President of the College, Vriend disclosed that he was homosexual. In early January 1991, the Board of Governors of the College adopted a position statement on homosexuality, and shortly thereafter, the President of the College requested Vriend’s resignation. He declined to resign, and on January 28, 1991, Vriend’s employment was terminated by the College. The sole reason given for his termination was his non‑compliance with the policy of the College on homosexual practice. Vriend appealed the termination and applied for reinstatement, but was refused.
8 On June 11, 1991, Vriend attempted to file a complaint with the Alberta Human Rights Commission on the grounds that his employer discriminated against him because of his sexual orientation. On July 10, 1991, the Commission advised Vriend that he could not make a complaint under the IRPA, because the Act did not include sexual orientation as a protected ground.
9 Vriend, the Gay and Lesbian Awareness Society of Edmonton (GALA), the Gay and Lesbian Community Centre of Edmonton Society and Dignity Canada Dignité for Gay Catholics and Supporters (collectively the “appellants”) applied by originating notice of motion to the Court of Queen’s Bench of Alberta for declaratory relief. The appellants challenged the constitutionality of ss. 2(1), 3, 4, 7(1) and 8(1) of the IRPA on the grounds that these sections contravene s. 15(1) of the Charter because they do not include sexual orientation as a prohibited ground of discrimination. The standing of the appellants to bring the application was not challenged. The trial judge found that the omission of protection against discrimination on the basis of sexual orientation was an unjustified violation of s. 15 of the Charter . She ordered that the words “sexual orientation” be read into ss. 2(1), 3, 4, 7(1), 8(1) and 10 of the IRPA as a prohibited ground of discrimination. The majority of the Court of Appeal of Alberta granted the Government’s appeal. The appellants were granted leave to appeal to this Court and the respondents were granted leave to cross‑appeal. An order of the Chief Justice stating constitutional questions was issued on February 10, 1997.
II. Relevant Statutory Provisions
10 Since the time the appellant made his claim in 1992, the relevant statute was amended (Individual’s Rights Protection Amendment Act, 1996, S.A. 1996, c. 25). The Act is now known as the Human Rights, Citizenship and Multiculturalism Act. In these reasons, however, we refer to the statute, as amended, as the Individual’s Rights Protection Act or IRPA, since that is how the legislation was most often referred to by the parties on this appeal. For the sake of convenience, the provisions are set out below first as they existed at the time the action commenced, and then as they currently stand.
Individual’s Rights Protection Act, R.S.A. 1980, c. I‑2, am. S.A. 1985, c. 33, S.A. 1990, c. 23
Preamble
WHEREAS recognition of the inherent dignity and the equal and inalienable rights of all persons is the foundation of freedom, justice and peace in the world; and
WHEREAS it is recognized in Alberta as a fundamental principle and as a matter of public policy that all persons are equal in dignity and rights without regard to race, religious beliefs, colour, gender, physical disability, mental disability, age, ancestry or place of origin; and
WHEREAS it is fitting that this principle be affirmed by the Legislature of Alberta in an enactment whereby those rights of the individual may be protected . . . .
2(1) No person shall publish or display before the public or cause to be published or displayed before the public any notice, sign, symbol, emblem or other representation indicating discrimination or an intention to discriminate against any person or class of persons for any purpose because of the race, religious beliefs, colour, gender, physical disability, mental disability, age, ancestry or place of origin of that person or class of persons.
3 No person, directly or indirectly, alone or with another, by himself or by the interposition of another, shall
(a) deny to any person or class of persons any accommodation, services or facilities customarily available to the public, or
(b) discriminate against any person or class of persons with respect to any accommodation, services or facilities customarily available to the public,
because of the race, religious beliefs, colour, gender, physical disability, mental disability, ancestry or place of origin of that person or class of persons or of any other person or class of persons.
4 No person, directly or indirectly, alone or with another, by himself or by the interposition of another, shall
(a) deny to any person or class of persons the right to occupy as a tenant any commercial unit or self‑contained dwelling unit that is advertised or otherwise in any way represented as being available for occupancy by a tenant, or
(b) discriminate against any person or class of persons with respect to any term or condition of the tenancy of any commercial unit or self‑contained dwelling units,
because of the race, religious beliefs, colour, gender, physical disability, mental disability, ancestry or place of origin of that person or class of persons or of any other person or class of persons.
7(1) No employer or person acting on behalf of an employer shall
(a) refuse to employ or refuse to continue to employ any person, or
(b) discriminate against any person with regard to employment or any term or condition of employment,
because of the race, religious beliefs, colour, gender, physical disability, mental disability, marital status, age, ancestry or place of origin of that person or of any other person.
(2) Subsection (1) as it relates to age and marital status does not affect the operation of any bona fide retirement or pension plan or the terms or conditions of any bona fide group or employee insurance plan.
(3) Subsection (1) does not apply with respect to a refusal, limitation, specification or preference based on a bona fide occupational requirement.
8(1) No person shall use or circulate any form of application for employment or publish any advertisement in connection with employment or prospective employment or make any written or oral inquiry of an applicant
(a) that expresses either directly or indirectly any limitation, specification or preference indicating discrimination on the basis of the race, religious beliefs, colour, gender, physical disability, mental disability, marital status, age, ancestry or place of origin of any person, or
(b) that requires an applicant to furnish any information concerning race, religious beliefs, colour, gender, physical disability, mental disability, marital status, age, ancestry or place of origin.
(2) Subsection (1) does not apply with respect to a refusal, limitation, specification or preference based on a bona fide occupational requirement.
10 No trade union, employers’ organization or occupational association shall
(a) exclude any person from membership in it,
(b) expel or suspend any member of it, or
(c) discriminate against any person or member,
because of the race, religious beliefs, colour, gender, physical disability, mental disability, marital status, age, ancestry or place of origin of that person or member.
11.1 A contravention of this Act shall be deemed not to have occurred if the person who is alleged to have contravened the Act shows that the alleged contravention was reasonable and justifiable in the circumstances.
16(1) It is the function of the Commission
(a) to forward the principle that every person is equal in dignity and rights without regard to race, religious beliefs, colour, gender, physical disability, mental disability, age, ancestry or place of origin,
(b) to promote an understanding of, acceptance of and compliance with this Act,
(c) to research, develop and conduct educational programs designed to eliminate discriminatory practices related to race, religious beliefs, colour, gender, physical disability, mental disability, age, ancestry or place of origin, and
(d) to encourage and co‑ordinate both public and private human rights programs and activities.
Human Rights, Citizenship and Multiculturalism Act, R.S.A. 1980, c. H‑11.7
Preamble
WHEREAS recognition of the inherent dignity and the equal and inalienable rights of all persons is the foundation of free