Tuesday, 5 November 2013

Human Rights and Employment Law Update - Vriend Restrospective

 15th Anniversary of a Human Rights Milestone in
Constitutional Law and Employment Law

Darryl A. Aarbo, Barrister and Solicitor

Calgary, Alberta

This year represents the 15th anniversary of a landmark decision in the area of human rights law, employment law and constitutional law. In 1998 the Supreme Court of Canada came out with a unanimous decision in Vriend v. Alberta [1998] 1 S.C.R. 493. This decision has had a huge effect on these three areas of the law over the last 15 years. It is a decision taught throughout the world and studied by students internationally, not just by lawyers but by constitutional experts and human rights advocates.

At first blush the decision looks like it is a gay rights case dealing with sexual orientation. Nevertheless, it is far more than that, although it is without question an important case for the LGBTQ community. 

Mr. Vriend worked as a laboratory coordinator at a college in Alberta. He held a full-time position and all of his evaluations were extremely positive. There were no blemishes on his employment record whatsoever. The college was a Christian college. It initially had no policy on sexual orientation but when it learned of Mr. Vriend’s sexual orientation then it came out with the policy and insisted upon his resignation. When he declined to resign, he was terminated. The sole reason given was his sexual orientation. The college was explicit that it was terminating him because of his sexual orientation.

Mr. Vriend 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 him that he could not make a complaint under the legislation because it did not include sexual orientation as a protected ground. 

Mr. Vriend sued the provincial government of Alberta because its human rights legislation did not cover sexual orientation. He did not sue the college or file a complaint against the college, but he went after the government because its legislation omitted sexual orientation in its protection.  This is the essential nature of the dispute and the basis for its complexity and why it had such a massive impact on constitutional law.

To put this case into its proper context for younger people or people living outside of the province of Alberta, the government of the province of Alberta at the time was a socially conservative group of individuals relative to other governments. Further, it was a big issue of the government at the time that unelected Judges were imposing their will on an elected legislative assembly.  Thus, when presented with an issue of gay rights and the possibility of the Courts imposing its will upon the government, the government opposed this litigation vehemently.

The case became a regular news item.  There were rallies and protests. There were fundraisers and organizations set up on both sides of the argument. It was extremely polarizing and contentious throughout Alberta and Canada. Interveners joined in the arguments on both sides. It was the modern Canadian equivalent of Edwards v. Canada (the “Persons Case”), the 1928 Canadian Supreme Court of Canada decision that found women were “persons”  and therefore eligible to sit in the Canadian Senate.  It could also be compared to Brown v. Board of Education, the landmark 1954 decision for the civil rights movement in the United States.  The Vriend case became a rallying point for human rights advocates on one side and socially conservative persons opposed to judicial intervention on the other.

Why was it such an important?  First, many argued that the Court was trying to regulate private activity. A misunderstanding of many people is that the Charter of Rights and Freedoms regulates the day-to-day lives of private citizens in Canada.  It does not.  The Constitution of Canada, which the Charter of Rights and Freedoms is a part of the, only regulates the various levels of governments in Canada. Constitutions throughout the world seek to regulate government activity, not private activity. In this instance many argued that what was being proposed was actually regulating private activity because Mr. Vriend was a private citizen who worked for a private college (although receiving government funding).  The Court found that it was not regulating private activity because it was dealing with government legislation. The twist here was that the government legislation in question did regulate private activity because it was human rights legislation.  Human rights legislation does govern acceptable behaviour of private citizens. Nevertheless, the decision only applied to the legislation, which was the activity of government in its regulation of private activity.

Second, and more important, the reason this case was so controversial at the time was that the Alberta’s human rights legislation omitted any reference to sexual orientation. Further, the Canadian Charter of Rights and Freedoms, a part of the Canadian Constitution, also omitted any explicit reference to sexual orientation. In its decision the Supreme Court of Canada read-in sexual orientation as a prohibited ground of discrimination into Alberta’s human right legislation and to do that it interpreted the Constitution of Canada as including protection for sexual orientation even though it was not explicitly written down by the drafters.  It expanded the scope of the Constitution itself by its own decision. It did so based upon well-established precedent and constitutional law and there were decisions leading up to this case that laid the foundation for what the court did, but it was considered by many to be an extraordinary example of judicial activism.

It is a monumental decision because it is an example of the old maxim that the constitution is a “living tree” or a “living document”.  The Courts interpreted the Constitution to protect a group of individuals who were being discriminated against at the time when the general population was only becoming more favorable to the idea of protecting their rights. Just as the Persons Case and the Brown decision were controversial in their time, this decision was also very controversial.  History judges the Persons case and the Brown case positively as progression towards equality for all and the Vriend decision is a long line of decisions where the Court’s protecting minority group not being protected by elected representatives. Further, the single most important aspect of this decision is that it leaves open the protection for groups that governments or the majority of people may not consider worthy of protection today.

Darryl Aarbo


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