Facts:
The appellant Vriend
was employed full-time as a laboratory coordinator in a college in Alberta.
He had received positive evaluations and promotions for his work. In 1990,
he disclosed to the college in response to an inquiry by the college’s
president that he was homosexual. In early 1991, the college’s board of
governors adopted a position statement on homosexuality and Vriend was
subsequently asked to resign due to non-compliance with the college’s policy
on homosexuality. Vriend declined to resign and was fired by the college
on January 28, 1991. He subsequently sought to file a human rights complaint
with the Alberta Human Rights Commission under the Individual’s Rights
Protection Act (IRPA) but was refused because it did not include sexual
orientation as a protected ground. Vriend and other appellants (Gala-Gay
and Lesbian Awareness Society of Edmonton, Gay and Lesbian Community Centre
of Edmonton, and Dignity Canada for Gay Catholics and Supporters) sought
declaratory relief from the Court of Queen’s Bench. The trial judge, Russell
J., agreed, finding that the omission of protection against homosexuals
in this Act was a violation of section 15 of the Charter of Rights and
Freedoms. She ordered that the words “sexual orientation” be read into
various sections of the act as a prohibited ground of discrimination. The
Alberta government appealed to the Alberta Court of Appeal. Their appeal
was upheld in a split decision (2-1). Vriend and his co-litigants appealed
that decision to the Supreme Court of Canada. The case was heard by the
SCC on November 4th 1997.
Questions (see paragraphs
40-1, page 481 text):
Does the decision not
to include sexual orientation as a prohibited ground of discrimination
in the IRPA infringe rights guarantees in section 15(1) of the Charter?
If so, is the infringement
demonstrably justifiable as a reasonable limit pursuant to section 1 of
the Charter?
(Do the appellants
have standing before the courts?)
Reasons for Judgment:
Decision:
The SCC is unanimous
(8-0) in agreeing that the omission of sexual orientation as a prohibited
ground of discrimination is a violation of section 15(1) of the Charter
of Rights and does not pass the section 1 test. The SCC is also unanimous
in agreeing the appellants have standing.
Three overlapping decisions:
Cory J. and Iacobucci J. write the majority’s decision (Gonthier, MacLachlin,
Lamer, Bastarache JJ. concurring). L’Hereux-Dube J. agrees with the majority
but makes further remarks about reading the equality protections in section
15(1). Major J. agrees with the majority’s conclusion but rejects the majority’s
decision to read sexual orientation into the IRPA, preferring to give the
Alberta legislature a year to fix the legislation itself.
Questions about the
decision:
Generally, what is
the court’s reasoning?
Why does section 15(1)
apply?
–
What is the right to equality?
–How
does the failure to include sexual orientation as a prohibited ground of
discrimination violate the right to equality?
What is the section
1 test?
How can a legislative
omission (“underinclusiveness”) violate someone’s protected rights?
How can the SCC’s reading
protections into the IRPA be justified?
What sort of theory
of law and legal reasoning, if any, is best reflected in the court’s decision?
Charter of Rights:
15(1)
Every
individual is equal before and under the law and has the right to equal
protection and benefit of the law without discrimination and, in particular,
without discrimination based on race, national or ethnic origin, colour,
religion, sex, age, or physical or mental disability
Questions:
Why is sexual orientation
not an enumerated ground? Why does the court include sexual orientation
as included in 15(1)?
What is it to be “equal
before and under the law” and what is the “right to equal protection and
benefit of the law without discrimination”?
The Ubiquity of Equality
as a Value in Political Morality
Will Kymlicka:
Every
plausible political theory has the same ultimate value, which is equality.
They are all ‘egalitarian theories'... (Contemporary Political Philosophy,
2nd ed.)
Amartya Sen:
[E]very
normative theory that has at all stood the test of time seems to demand
equality of something – something that is regarded as particularly important
in theory. The theories involved are diverse and frequently at odds with
each other, but they still seem to have that common feature. ("Why Equality?
What Equality?" in Social and Political Philosophy, edited by Sher and
Brody, p.604)
What is Equality?
Distributive Justice
and Equality
Aristotle:
Now
justice is recognized universally as some sort of equality...justice
involves an assignment of things to persons...equals are entitled to
equal things. But here we are met with an important question: Equals
and unequals
in what? This is a difficult question. (Politics,
Everyman edition, Warrington trans., p.80-1)
Simon Blackburn:
The
right to equal concern and respect.
A)
Relative
Substantive Equality: the right to benefit equally from the
distribution of certain divisible social benefits.
B)
Numerical
Substantive Equality: The right to receive precisely the same portion
of a specific benefit.
Next
class:
SCC
Analysis of 15(1)
Canada
by the broad scope and fundamental fairness of the provisions of s. 15(1)
has taken a further step in the recognition of the fundamental importance
and innate dignity of the individual...In order to achieve equality the
intrinsic worthiness ofand importance
of every individual must be recognized regardless of age, sex, colour,
origins, or other characteristics of the person...That equality is guaranteed
by our constitution. If equality rights for minorities had been recognized,
the all too frequent tragedies of history might have been avoided. It can
never be forgotten that discrimination is the antithesis of equality and
that it is the recognition of equality that will foster the dignity of
every individual. (p.484)
What
concept(s) of equality is(are) being advanced here?
How
does 15(1) apply to this case?
The
essential requirements of all these cases will be satisfied by enquiring
first, whether there is a distinction which results in the denial of equality
before or under the law, or of equal protection or benefit of the law;
and second whether this denial constitutes discrimination on the basis
of an enumerated or analogous ground. (p. 484)
Questions:
(1)
Is there a distinction which results in denial of equality before
or under the law or equal protection of the law?
(2)
Is sexual orientation an “enumerated or analogous ground”?
IRPA
Creates a Distinction
Alberta
Government: A “neutral silence” creates no distinction; homosexuals are
protected equally alongside others by provisions of the IRPA.
The
court rejects this position. Why?
–
“identical treatment will not constituted equal treatment” (485)
–
“if mere silence sufficient to remove legislation from scrutiny of s.15(1)
then any legislature could avoid the objects of 15(1) by drafting laws
that omitted reference to excluded groups”
–
two distinctions: (1) homosexuals and other disadvantaged groups; (2) homosexuals
and heterosexuals.
–
(2) is more difficult to see because of the presence of “formal equality”
between heterosexuals and homosexuals (who have same access to IRPA).
–
However, there is a “disproportionate impact” of discrimination on homosexuals.
Therefore, the “IRPA in its underinclusive state denies substantive equality
to the former group.” (485)
–
Thus, legislative “silence” is not neutral in this case, since gays and
lesbians are treated differently from other disadvantaged groups and from
heterosexuals. “They, unlike gays and lesbians, receive protection from
discrimination on grounds that are likely to be relevant to them.” (485)
Equality
right is denied on the basis of a personal characteristic:
–
Sexual orientation is analogous to the enumerated grounds in 15(1)
because
(1)
the “historical, social, political, and economic disadvantage suffered
by homosexuals”, and
(2)
sexual orientation is “a deeply personal characteristic that is either
unchangeable or changeable or unacceptable personal costs.”
The
court is relying here on Egan v. The Queen in Right of Canada
Also,
it may be inferred that the absence of a protection for such a group may
encourage the inference that discrimination against them is acceptable,
and thus perpetuate or encourage such discrimination:
It
cannot be claimed that human rights legislation will help to protect individuals
from discrimination, and that the same time contend [as Alberta did] that
an exclusion from the legislation will have no effect...[It] sends a strong
and sinister message...to all Albertans that it is permissible, and perhaps
even acceptable, to discriminate against individuals on the basis of sexual
orientation.
Fear
of discrimination will logically lead to concealment of true identity and
must be harmful to personal confidence and self-esteem. The potential harm
to the dignity and perceived worth of gay and lesbian individuals constitues
a particularly cruel form of discrimination. (486)
Questions:
Will
human rights law have “to mirror” the Charter precisely?
Is
discrimination under section 15 saved by section 1 of the Charter?
Oakes
Test re section (1) of the Charter
Limits
on Charter protected rights must be “demonstrably justified in a free and
democratic society.”
(1)
The legislative objective must be “pressing and substanntial
(2)
Proportionality Analysis:
(A)
rights violation must be rationally connected to the aim of the legislature.
(B)
the impugned provision must minimally impair the Charter guarantee.
(C)
there must be proportionality in the effect of the measure and its objective
so that the attainment of the legislative goal is not outweighed by the
abridgement of the right.
(D)
The burden of proof is on the government; thestandard
of proof is the balance of probabilities.
Court
agrees that the IRPA fails the pressing and substantial test.
Remedy:
“Reading in” protections to the IRPA
–
Canada changed from a system of parliamentary to constitutional supremacy
in 1981-2 when the Charter was adopted.
–
“it was a deliberate choice of our provincial and federal governments in
adopting the Charter to assign an interpretive role to the courts...” (494)
–
given stated objectives of IRPA (see preamble) reading in would “minimize
interference with this clearly legitimate legislative purpose and thereby
avoid excessive intrusion whereas striking down the IRPA would deprive
all Albertans of human rights protection.” (494)
–
no significant budgetary considerations follow from reading in sexual orientation
as a protection.
Note: Major J. dissents on this issue. Alberta may choose different ways of framing the protection, or perhaps dropping human rights law altogether, or choose section 33 override.