Vriend v Alberta

Delwin Vriend was fired by an Alberta college for being gay. Alberta's Individual's Rights Protection Act omitted sexual orientation as a prohibited ground. The SCC held the omission unconstitutional and read sexual orientation in.

Vriend, a lab coordinator at King's College, was dismissed solely because he was gay. Alberta's human-rights statute did not include sexual orientation, so he had no avenue of complaint.

(1) Does the omission of sexual orientation from the Act violate s.15? (2) What is the appropriate remedy?

Yes — the omission violates s.15 and is not saved by s.1. The appropriate remedy is to read sexual orientation into the Act.

A legislative omission can violate the Charter. The under-inclusiveness of a statute is reviewable. Where reading-in is the most consistent remedy with the legislative purpose, the Court may read the missing ground into the statute rather than strike it down.

Cory and Iacobucci JJ held that the omission of sexual orientation drew a distinction that perpetuated disadvantage and stigma. The s.1 justification failed: no pressing and substantial objective justified the exclusion. On remedy, the Court chose to read in rather than strike down because striking down would deny protection to everyone covered. Reading in respected the legislative purpose of providing human-rights protection while removing the discriminatory exclusion.

Confirmed sexual orientation as an analogous ground and validated reading-in as a Charter remedy. Provoked a national debate about judicial activism. Cited in nearly every subsequent equality challenge to under-inclusive legislation.

Vriend v Alberta, [1998] 1 SCR 493, 1998 CanLII 816 (SCC).

Lamer CJ, L'Heureux-Dubé J, Sopinka J, Gonthier J, Cory J, McLachlin J, Iacobucci J, Major J, Bastarache J