Vriend v Alberta at 10 Years

This month marks the 10 year anniversary of the historic Supreme Court of Canada (“SCC”) decision in Vriend v Alberta, [1998] 1 SCR 493; a defining moment in the rights of gays and lesbians in Canada. It was also a proud occasion in the history of the Women’s Legal Education and Action Fund (“LEAF”), an intervener in the case.

The Vriend decision was powerful in that it remedied a grave injustice against gays and lesbians in the province of Alberta, most notably, its government’s refusal to extend complete protection of anti-discrimination legislation to the lesbian, gay, bisexual, and transgender community – a right available to the lesbian, gay, bisexual and transgendered (“LGBT”) community in practically every other jurisdiction in Canada. The Supreme Court decision marked another small victory to a previously disadvantaged group in our society.

The extension of rights to LGBT populations began in 1969 with the passage of Bill C-50, which decriminalized homosexuality. While this was important legislation for the nation, incidents of discrimination towards gays and lesbians continued to occur.

One such case involved Delvin Vriend, an openly gay man, who, in 1991, was fired from his position as a laboratory coordinator at Kings College, a private catholic university. The college defended the dismissal, claiming that Vriend’s homosexuality was in conflict with their board of governors’ newly adopted position statement on religious practices.

Following his discharge, Vriend attempted to file a discrimination complaint against his former employer with the Alberta Human Rights Commission. He was subsequently rejected on the basis that sexual orientation was not protected under the province’s human rights code. As a consequence of this roadblock, Vriend sued the Government of Alberta and its Human Rights Commission.

In 1992, an Alberta court ruled that sexual orientation should be considered a protected ground under human rights legislation and that the legislation was inconsistent with the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982 [“Charter“]. The provincial government appealed and, in 1994, the decision was overruled by the Alberta Court of Appeal. The Alberta Court of Appeal decision was appealed to the Supreme Court of Canada, with the support of several legal intervening groups, including LEAF, whose mandate is to advance the equality of women and girls, along with other marginalized communities in Canada.

In 1998, the SCC finally ruled that provincial governments could not exclude lesbian and gay individuals from human rights legislation and that the exclusion of protection against discrimination on the basis of sexual orientation was an unjust violation of s. 15 of the Canadian Charter of Rights and Freedoms.

Since the Vriend decision, Canada has witnessed substantial progress in the rights of LGBT peoples. There has been a range of rights gains in most policy areas including; employment, health and insurance benefits, pensions, finances, housing, adoption, immigration, hate crimes, and marriage. Legal benefits commonly associated with marriage were extended to cohabiting same-sex couples beginning in 1999. And today Canada is the fourth country in the world and the only country in North America to legalize same-sex marriages (Same-Sex Marriage Reference, [2004] 3 SCR 698.)

The constitutional rights of LGBT Canadians are notably more protected than they were 30 years ago, due fundamentally to the numerous court decisions under Section 15 of the Charter. However, for every victory, there are ongoing acts of discrimination against equality-seeking groups, and numerous cases never get the opportunity to be heard.

Many of the cases that extended the rights of gays and lesbians were financed under the federal government’s Court Challenges Program. In October of 2006, the federal government eliminated this highly valuable program, which provided funds for individuals and organizations to launch court challenges. As a former recipient of support from the Court Challenges Program, the cut to the program now makes it substantially more difficult for LEAF and other equality seeking groups to fight for the rights of groups that face systemic discrimination via the courts, despite the continuing need to do so.

For example, Alberta’s Human Rights Commission has opened nearly 200 complaint files on grounds of sexual-orientation discrimination in the past decade. Even so, Alberta’s government has yet to formally amend its human rights legislation to include sexual orientation.

In the province of Saskatchewan, discrimination based on sexual orientation and gender identity can occur between landlord and tenant(s) when the owner resides in one unit of a duplex and the tenant in the other (Saskatchewan Human Rights Code, SS 1979, c S-24.1.), while in the Yukon Territory although there is no legal exceptions that limit the rights of LGBT students, protection against sexual orientation and discrimination only applies to “consenting adults acting within the law.” Therefore, minors have not been specifically protected against anti-gay discrimination (Canadian Human Rights Act, RSC 1985, c H-6).

It is examples such as these that remind us that equality rights are not a given in Canada and we have an obligation to continue to challenge injustice. A variety of legal issues will most likely continue to affect the LGBT community. Violence remains an issue of grave concern. For example, a 2004 Statistics Canada report found that persons targeted on the basis of their sexual orientation were more likely than other groups to be victims of violent crimes, and that the probability of being victimized was practically twice as high for gays and lesbians and four-and-a-half times greater for bisexuals.

Nonetheless with Vriend’s 10 year anniversary now upon us, the significance of this court ruling, which catapulted Canada to the vanguard of an international rights revolution for LGBT communities, cannot be underestimated.

Nicole Curling is Director of Communications with the Women’s Legal Education and Action Fund (LEAF).