The appellant, Vriend, a gay man, was employed as a laboratory coordinator by a Christian college in Alberta. In early 1991, the college’s board of governors adopted a position statement on homosexuality and following his refusal to resign, his contract was terminated. He 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 that he could not make a complaint under the Individual’s Rights Protection Act (IRPA), because it did not include sexual orientation as a protected ground. A motion was filed to the Court of Queen’s Bench for declaratory relief. The trial judge found that the omission of protection against discrimination on the basis of sexual orientation was an unjustified violation of Section 15 of the Canadian Charter of Rights and Freedoms, however the Alberta Court of Appeal granted the government’s appeal. Vriend and others appealed to the Supreme Court of Canada.
The Supreme Court hearing was held on 4 November 1997. The constitutional questions for the court were:
- Do (a) decisions not to include sexual orientation or (b) the non-inclusion of sexual orientation, as a prohibited ground of discrimination in the preamble and Sections 2(1), 3, 4, 7(1), 8(1), 10 and 16(1) of the IRPA 1980 (now called the Human Rights, Citizenship and Multiculturalism Act), infringe or deny the rights guaranteed by Section 15(1) of the Canadian Charter of Rights and Freedoms?
- If the answer to Question 1 is ‘yes’, is the infringement or denial demonstrably justified as a reasonable limit pursuant to Section of the Canadian Charter of Rights and Freedoms?
In considering a violation of Section 15, the court looked at the language of Section 32 of the Charter, which concerned the scope and application of the Charter. The respondents alleged that a legislative omission- not including sexuality orientation in Section 15- did not apply under Section 32. The court found that ‘silence’ in legislation did not mean neutrality by the legislature. It stated that to assume an omission was not subject to the Charter, would suggest that ‘the form, rather than the substance, of the legislation would determine whether it was open to challenge’ which would be illogical and unfair.
The court found in its analysis of Section 15 that, by reason of its underinclusiveness, the IRPA created a distinction on two counts. The first was that it distinguished between homosexuals and other protected groups, and second that it distinguished between homosexuals and heterosexuals. The court held that:
‘The omission of sexual orientation as a protected ground in the IRPA creates a distinction on the basis of sexual orientation. The “silence” of the IRPA with respect to discrimination on the ground of sexual orientation is not “neutral”.’
Establishing that as it stood, the IRPA violated the equality rights of the appellant Vriend and of other gays and lesbians, the court addressed whether this was justifiable under Section 1 of the Charter. The court did not accept that there was any proportionality between the attainment of the legislative goal and the infringement of the appellants’ equality rights and consequently was not saved under Section 1.
The court answered ‘yes’ to the first question and ‘no’ to the second question put to it. It concluded that reading sexual orientation into the provisions of the IRPA was the most appropriate way of remedying the legislation.
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