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Gay Teacher Wins Major Civil Rights Case in  Canada

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 Delwin Vriend had a job at King's University College in Edmonton, Alberta, Canada as a lab instructor. This college is run by the Christian Reformed Church, a conservative Christian denomination. It is a liberal arts school with about 500 students. In 1991, he was fired, apparently because he is gay. He appealed to the Alberta Human Rights Commission, an arm of the Provincial government. But they refused to investigate his complaint, because discrimination on the basis of a person's sexual orientation is not within the scope of the Alberta Individual Rights Protection Act (IRPA). So, Vriend sued the Alberta Human Rights Commission in a lower court, where Madame Justice Anne Russell ruled in his favor. During this time, in 1994, Jack O'neill was asked to review the state of civil rights in the province. He found both angry opposition and spirited support for equal rights for gays. He recommended that the Act be extended to protect people on the basis of their sexual orientation. The government declined to follow up on his recommendation,

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Alberta Court of Appeal

The Government appealed the case to the Alberta Court of Appeal . Respondents were:

bulletDelwin Vriend,
bulletGay and Lesbian Awareness Society of Edmonton (GALA) ,
bulletGay and Lesbian Community Centre of Edmonton, and
bulletDignity Canada Dignite (an association of gay and lesbian Catholics and supporters)

Intervenors were:

bulletIn support of Delwin Vriend:
bulletAlberta Civil Liberties Association
bulletCanadian Human Rights Commission
bulletCanadian Jewish Congress
bulletIn opposition to Delwin Vriend:
bulletAlberta Federation of Women United for Families
bulletThe Evangelical Fellowship of Canada
bulletFocus on the Family (Canada) Association

The Court of Appeal, the highest court in the province, ruled against him on 1996-JUL-15. (5) The vote was 2:1. The majority decision stated that the omission of sexual orientation from the Individual Rights Protection Act was not a violation of section 15 of the Federal Charter of Rights and Freedoms, because the constitutionality of a civil rights act is not dependent on a perfect emulation of the Charter. Judge John Wesley McClung wrote that only the provincial legislature could change the legislation; he denied that sexual orientation could be "read into" the IRPA by the courts. He warned against "ideologically driven" decisions by courts; this was presumably a warning to the Supreme Court of Canada to not attempt to overrule the decision of the Alberta government. The Supreme Court has taken an activist stance in the past on these matters. The sole dissenting appeals court judge stated that the Alberta Legislature's omission of sexual orientation is tantamount to approving ongoing discrimination against homosexuals. Further, it is in violation of section 15 of the Charter.

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Supreme Court of Canada Appeal

He has since appealed to the Supreme Court of Canada.

On 1996-OCT-30, the Supreme Court agreed to hear the appeal. (4) John Fisher, the Executive Director of Equality for Gays and Lesbians Everywhere (EGALE ) commented: "By agreeing to hear the case, the Supreme Court has recognized the importance of this issue. It is up to the Court to intervene, since the Legislature of Alberta has refused to accord equality to lesbian and gay Albertans... Alberta risks being seen as the dinosaur of the country and an embarrassment to Canadians unless its Legislature acts to treat all its citizens equally...It is a sorry day for the Province when the Government of Alberta is so committed to discrimination that it has to be dragged before the highest court in the land rather than extend equality."

Hal Joffe, Chairperson of the Canadian Jewish Congress' National Community Relations Committee stated that: "CJC’s interest is in ensuring that citizens who believe that they have been discriminated against because of their sexual orientation should not be denied the right to have the matter heard and adjudicated by the relevant Human Rights Commission...Our submissions have stressed this fundamental aspect of human rights, consistent with the federal Charter of Rights and Freedoms and the Canadian Human Rights Act, rather than the ultimate disposition of any such complaint or the substantive aspects of Mr. Vriend’s grievance." (6)

There were a total of 14 intervenors in the Supreme Court case. One was the Evangelical Fellowship of Canada. According to the EFC web site, their lawyer "argued that the court must respect the elected legislature's decision not to include 'sexual orientation' in provincial human rights legislation. EFC also argued that there could be serious ramifications to the right of a religious organization to require their employees to adhere to moral standards based on the organization's religious beliefs." (8)

Most experts predicted that the Supreme Court would overrule the decision of the Alberta Court of Appeals. Three mechanisms were suggested:

bulletthe court could declare the entire act to be unconstitutional, effective immediately. Unfortunately, this approach would deny citizens protection on the basis of their religion, gender, nationality, etc. for a while until the government of Alberta could create a new law.
bulletthey could declare that a clause would be "read into" the existing law which extended the law to cover sexual orientation. That is, the law would be interpreted as if it contained a sexual orientation clause.
bulletthey could declare the act to be unconstitutional and give the province a grace period in which to modify the law. This approach might prove difficult. It is not obvious how the legislature could pass such a law. Alberta is one of the most socially conservative of Canadian provinces. A 1996 poll by the Angus Reid Group indicated that 59% of Canadian adults favored protection against discrimination for gays and lesbians. But only 40% of Albertans agreed. (margin of error 8.4 percentage points) It is difficult to see how a majority of MLAs would vote in favor of such a bill. Legislators tend to be more conservative than the general population on ethical matters.

In advance of the decision, Pastor Olson, chairperson of the Edmonton AL evangelical ministerial association said that if a Supreme Court of Canada ruling forces Alberta to recognize gays under its Individual's Rights Protection Act, it will give the moral stamp of approval to that sexual behavior. "We believe that lying, adultery, fornication, drunkenness are harmful and so is homosexuality..."

The ruling came on 1998-APR-2. The Supreme Court determined that the Alberta Individual Rights Protection Act violates the federal Charter of Rights and Freedoms. They "read into" the existing law a clause giving equal rights for persons of all sexual orientations. The vote was 7 to 1. Mr. Justice Jack Major expressed the minority position. Although he agreed that the exclusion of sexual orientation violated the Charter, he felt that the province should be allowed to repair the act on its own.

Mr. Justice Peter Cory wrote the majority decision, including:

"The exclusion [of gays and lesbians] 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 ensure from this state of affairs. Fear of discrimination will logically lead to concealment of true identity, and this must be harmful to personal confidence and self-esteem."

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Reactions to the Supreme Court's decision:

bulletDelwin Vriend: "I think it is extremely shameful that the government of Alberta kicked and screamed and whined for the last seven years all the way to the Supreme Court in an effort to ensure that discrimination against gays and lesbians continued..."
bulletPaul Langevin, MLA for Lac la Biche-St. Paul: "Courts should not be making decisions for politicians. They're not elected; they're not elected, and politicians - either the provincial legislators or the federal government - are the people who represent the population."
bulletSheila Greckol, Mr. Vriend's lawyer: "This morning the word sexual orientation are found in our human-rights legislation. This is a glorious moment for the human rights of all Albertans."
bulletMarg Nausworthy, president of Parents and Friends of Lesbians and Gays (PFLAG): "It is the very cornerstone of a healthy democracy that there is protection for unpopular minorities. It will be a serious violation of the principles of democracy for the government of Alberta to ignore this decision."
bulletR. Douglas Elliott, counsel for the Canadian AIDS Society in the Vriend case: "My message to governments that continue to discriminate against gays and lesbians in this country is: 'We'll be back.'" (Some sources incorrectly attribute this quote to David Corbett, director of the Foundation for Equal Families).
bulletDave Rutherford, host of a local radio call-in show, scheduled part of his program to this topic. As expected, listeners covered the full range of possible responses. They ranged from a prediction that this ruling is the first step on a slippery slope towards moral decrepitude; others said it was a watershed in Alberta's growth towards a just society; others were angry that unelected judges at the Supreme Court are pushing the province around. Several listeners were particularly distressed because they feel that the ruling will lead to schools teaching tolerance towards gays and lesbians. Many quoted the usual passages from the Bible that are often interpreted by conservative Christians as condemning gays and lesbians.
bulletRichard Gregory, co-chairperson of the Coalition on Human Rights in Alberta commented that the public confuses the loudness of the anti-gay movement for universality of opposition.
bulletHal Joffe, national chairperson of community relations for the Canadian Jewish Congress, quoted other passages from the Bible. He mentioned that the book of Deuteronomy urges believers to pursue justice.
bulletJulie Lloyd, a lawyer with many gay clients, said: "Slowly, the forced change in behavior will change Albertans' attitudes...I hate to conclude that Alberta is a cesspool of small minds. I prefer to conclude that the Alberta leadership has not been doing the right thing."
bulletRev. Bruce Miller, minister of the Robertson-Wesley United Church in Edmonton, Alberta said: "I think Christians in Alberta are going to have to do some soul-searching and see if they are really following Jesus' ethics of love. Egalitarianism is something Jesus was all about. Sometimes we forget that." (The United Church in Canada is a liberal, Protestant denomination.)

Alberta, Newfoundland and Prince Edward Island had been the holdouts in this area of civil rights. In 1997-DEC, Newfoundland added sexual orientation as a protected category under its Human Rights Code. (1) With this decision of the Supreme Court in the Vriend case, Prince Edward Island remains the only Canadian provinces without civil rights protection for persons of all sexual orientations. Their government has been promising the move, but a bill has yet to be introduced in its legislature.

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Not Withstanding...

There exists in the Canadian Constitution a "not withstanding" clause. Clause 33 allows the Federal or Provincial governments to opt-out of any portion of the Canadian Charter of Rights and Freedoms which deals with:

bulletfundamental freedoms of religion, speech, the press, free assembly and association
bulletguarantees of equality

At the time that the Charter was introduced in the early 1980's many opposed this provision. Former Prime Minister, Pierre Trudeau called it a tainted compromise. Former Prime Minister Brian Mulroney said that it reduced the worth of the Charter to that of a piece of scrap paper.

Theoretically, a government in Canada could define, say Wiccans, as devoid of freedoms of religion and association, and could imprison them at will. And there is not a great deal that could be done to protect them. So too, the Government of Alberta could pass legislation that states that: not withstanding Section 15 of the Canadian Charter of Rights and Freedoms, gays, lesbians and bisexuals will have no fundamental rights in Alberta. They would have to declare that the legislation is in direct conflict with the charter; they would have to renew the legislation every five years. The Quebec government has used the "not withstanding" clause to declare illegal those advertising signs that did not meet certain size and language standards. The Alberta government tried to introduce "not withstanding" legislation recently that would have limited the rights of victims of past Alberta sterilization laws to sue for damages. But the public and media expressed so much contempt that the bill was withdrawn.

John Fisher of EGALE commented on the possible action of the Alberta government to invoke the "not withstanding" clause. He said that it is a question of how low the government will stoop - to what length the government will go - to abuse the rights of gays and lesbians.

The Premier of Alberta, Ralph Kline, announced to the media on APR-3 that his government would not seek to pass a "not withstanding" bill. He confirmed this later in the legislature. Phone calls to government offices were very heavy. Some callers were outraged that gays and lesbians are now given equal protection under the law; some were pleased with the extension of equal rights to homosexuals; some were angry at the activism of the Supreme Court.

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Curious Aspects to this Case:

The media has consistently ignored a number of significant aspects in the Vriend case:

bulletIt is presented as a civil rights case for gays and lesbians. In fact, no civil rights law in North America, to our knowledge, contains references to gays, lesbians, bisexuals or homosexuals. What the laws do is extend fundamental civil rights protection to persons of all sexual orientations. So, a heterosexual who was denied employment or accommodation on the basis that he/she was attracted sexually to members of the opposite gender could seek protection from their regional human rights office.
bulletWinning the court battle will not get Mr. Vriend  his job back. At best, he will get his case investigated by the human rights commission in Alberta. Unless that commission has an unusually high professional standard, his case is liable to be received with little enthusiasm. Fortunately, he now has a job as a computer technologist at the University of Alberta.
bulletMr. Vriend's former employer is a religious institution. Most civil rights legislation in North America has its own type of internal "not withstanding" clause: religious (and other) institutions are specifically excused from the demands of the law. They are allowed to discriminate on any basis that they wish to. For example, such laws permit the Roman Catholic church to refuse to ordain female priests. They permit churches to refuse to accept gay or lesbian employees. The Alberta law does not allow specifically exempt religious institutions as does legislation in many other states and provinces. But it allows discrimination if it is reasonable and justifiable. On 1998-APR-3, King's College officials stated that they have the right to offer employment only to heterosexuals, and to fire homosexuals wherever they are found. John Rhebergen, their vice-president of administration, said: "We maintain that there are occupational requirements at King's, and at other Christian schools as well." Christian schools could argue that their religious beliefs justify their efforts to discriminate against gays, lesbians, women, persons who deviate from the doctrinal purity of the denomination, etc. in their staff. But they might have difficulty proving their position in Vriend's case: he was a lab instructor in computer science - an area of specialty that does not have a great religious or spiritual content.

All of the articles and programs on the Vriend case that we have seen, describe the anger of many Albertans over what they believe is an intrusive, activist stance by the Supreme Court.  They feel that the unelected Justices of the court have hijacked some of the responsibilities of the elected members in the legislature. But it can be argued that this is an invalid conclusion. The Supreme Court was faced with two laws:

  1. Provincial legislation that does not grant equal protection for gays and lesbians
  2. The Charter of Rights and Freedoms which applies to all Canadians and prohibits discrimination based on sexual orientation.

The court obviously had to resolve this difficulty. Since the Charter is the superior law, the provincial legislation had to be changed. It could have been declared unconstitutional. But then all Albertans would be without human rights protection. The court could have let the law stand for a few months, and order the legislature to rewrite the law. Or they could "read in" gay and lesbian protection into the present law. It can be argued that the "reading in" process would be less intrusive. What the court could not do is to refuse to act and let the previous law stand.

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Further Developments:

A campaign has been started by a "number of conservative groups, including many affiliated with the religious right have mounted a campaign to" persuade Premier Ralph Klein to invoke the "not withstanding" clause. This would override the recent Supreme Court action and remove human rights protections for gays and lesbians. (8) Some groups from the religious right are conducting a campaign against equal rights for gays and lesbians via radio, television and newspapers. Roy Beyer, president of the Canada Family Action Coalition said: "Basically, we need to appeal to people because we feel our message is not getting out." Their full page ads in two newspapers urge the Alberta government to use the "Not Withstanding" clause Otherwise, they feel, religious freedom will be abridged and the family will be undermined. A broadcast campaign with a similar message has been launched by a Calgary group called by the unusual name of "Alberta Civil Society Association." The religious right believes that by being forced to treat homosexuals equally in areas of service delivery, employment and accommodation, that their religious freedoms are being abridged. For example, a landlord who is a conservative Christian might believe that God hates homosexuality. Thus the landlord would be inclined to refuse accommodation to a gay or lesbian. He/she might feel that when the law compels them to extend equal treatment to homosexuals, that they would be forced to violate their own religious standards.

Michael Phair, a city councilor from Edmonton, Alberta commented on slurs and threats of violence that he and other homosexuals have received recently. "I've been told that I should be shot, and other days and lesbians should be shot, that I should have never been born and that there's no place in this province for people like me." One caller suggested that Phair be dismembered. Police have stepped up patrols in his neighborhood. Pamphlets have been placed on his car windshield which compare gay sex with animal behavior. Others quote Biblical passages.

Murray Billett, a member of the Gay and Lesbian Awareness Society of Edmonton, has also received angry phone calls and letters. "He did not elaborate, saying he fears for the safety of his family."

The caucus of the ruling Conservative Party meets on 1998-APR-9 to discuss the matter. Premier Klein has said: "We'll see what happens if caucus votes - and I'm sure that they will - to accept the ruling [of the Supreme Court] because it is the law as it stands today....Right or wrong, I've drawn my line in the sand. I've said personally I feel good about it. I feel comfortable, that I will accept the ruling. I think it's wrong, morally wrong, to discriminate on the basis of sexual orientation." The Premier said that he was sickened by some of the messages sent to his office: "A lot of letters are form letters. We have others writing letters that quite frankly make your stomach churn because they're reading into this a lot more than what is there."

16 law professors at the University of Alberta sent the Premier a letter saying (in part): "...the Supreme Court has held that the Charter entitles persons to have their complaint of discrimination based on sexual orientation investigated by the Alberta Human Rights Commission. 'Vriend' is about the right of access to justice."

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OCRT Note: Gays and lesbians have, at least temporarily, been given civil rights protection in Alberta. Any change in legislation will now have the effect of targeting a specific group in society and intentionally removing their existing rights. We suspect that this will be a very difficult task to accomplish.

North American society seems driven by a secular ethical system which started by defining racism as reprehensible, then declared sexism as intolerable, and is now drifting towards the position that homophobia is also unacceptable. If conservative religious groups continue to deny women, gays and lesbians equal treatment, they run the risk of being branded as bigots by people generally . Conservative Christian individuals and groups will find that their prime mandate, the Great Commission to convert the world to a saving knowledge of Jesus, will be increasingly impeded. The conservative wing of Christianity (perhaps all of Christianity) will be treated as pariahs by a growing percentage of society.

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References:

  1. "Newfoundland Rights Passed", News Planet, 1997-DEC-10. See: http://www.planetout.com/pno/newsplanet/article.html?1997/12/10/1
  2. Kirk Makin, "How Far Should Justices Go?", The Globe and Mail newspaper, Toronto ON, 1998-APR-2, Page A1
  3. Cor Labots, "Alberta Media Release: What is the Issue", Christian Heritage Party of Canada (CHP), 1996-FEB-29. See: http://www.freenet.edmonton.ab.ca/chp/vriend7.html
  4. Equality for Gays and Lesbians Everywhere (EGALE), "Supreme Court of Canada Agrees to Hear Alberta Sexual Orientation Case" at: http://www.egale.ca/pressrel/961003.htm
  5. The decision of the Alberta Court of Appeal in "Vriend v. Alberta" is at: http://www.egale.ca/legal/vriend.txt
  6. "CJC Intervenes before Supreme Court of Canada in Vriend Appeal," at: http://www.cjc.ca/pr971106A.htm
  7. Brian Laghi, "Debate on Gay Rights Polarizes Albertans?", The Globe and Mail newspaper, Toronto ON, 1998-APR-2, Page A12
  8. "Supreme Court rules Alberta's human rights law violates Charter," Evangelical Fellowship of Canada, at: http://www.efc-canada.com/what/breaking.htm#gayrights
  9. "Alberta Gays Report Threats in Wake of Ruling on Rights," The Globe and Mail newspaper, Toronto ON, 1998-APR-9, Page A1, A6

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