April 19, 1998
The Supreme Court ruling in the Delwin Vriend case proves one thing: your mother was wrong—two wrongs do make a right. First, some background.
Vriend is the Alberta laboratory co-ordinator who was fired from his job at a Christian college. He was hired in 1988 and had an excellent employment record. In 1990, he disclosed in a survey that he was homosexual. Early the next year the college’s board of governors adopted a discriminatory policy toward homosexuals and Vriend lost his job because of it.
Because Alberta’s human rights legislation does not cover homosexuality, Vriend had to appeal to the Court of Queen’s bench for “declaratory relief.” He won. The judge ordered that “sexual orientation” be “read into” the legislation as a protected ground of discrimination, on the grounds that it was an unjustified violation of Section 15 of the Charter of Rights and Freedoms.
Under normal circumstances the matter would have ended there. Vriend had his day in court and won, but no. The government of Alberta inexplicably appealed the decision and even more inexplicably won, thus forcing Vriend to take his case to the Supreme Court. This is the first wrong.
Since Section 15 protects all individuals from discrimination, and since the charter has force throughout the country, the Alberta legislature should have acknowledged the lapse in its provincial legislation and fixed it. What’s more, the fact that the college fired Vriend after five years is so grossly prejudicial one wonders why the government would want to lodge an appeal. Regardless of the homosexuality issue, didn’t firing Vriend violate general labour laws against mistreatment by employers?
But that’s life in Alberta when the Bible belt starts to pinch.
The way the Supreme Court overruled the Alberta Court of Appeal compounded the injustice. This is the second wrong, even though the Supreme Court was right to judge the case the way it did. The authors of the majority decision, Justices Peter Cory and Frank Iacobucci, assumed the right to think for all Albertans and read sexual orientation into the Alberta legislation:
“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."
If the Supreme Court can impose itself on provincial legislation, what does that say about provincial independence? Good, bad or indifferent, the Individual’s Rights Protection Act is law in Alberta and must be respected as such. It can only be amended by Albertans and provincial institutions.
Justice John Major, in his partial dissent, understood this problem and wisely objected to “reading in” protection for homosexuals: “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.”
Major would rightly have quashed only that part of Alberta’s IRPA that deals with employment provisions rather than alter the entire act. Unlike his colleagues, Major understands that the court’s job is to judge the constitutionality of legislation not to rewrite it.
The court is supposed to be concerned with matters of law, not assumptions about what the citizens of a province might think. Unfortunately, this was not the dominant view and the second wrong was committed.
The Court’s presumption could have debilitating ramifications. Arguably, the greatest divide in this country is between the provinces and the federal government about power over immigration, resources, language, what have you. An intrusion like this merely plays into the hands of hard-line Christians who hardly need prompting to resent Ottawa.
It’s unlikely that we’d ever have a civil war over provincial rights the way the United States did over state rights, but the same underlying tension exists. If the court can arrogate to itself the right to meddle in one kind of provincial legislation, why not another?
The Vriend decision may be remembered, not as an affirmation of homosexual rights, but as a symbol of how messy, litigious and querulous Canada has become in the 16 years since it had a written Constitution imposed upon it.