Gay Rights Upheld in Alberta
Delwin Vriend never set out to be a gay-rights poster boy. Last week, the 32-year-old computer technologist at the University of Alberta in Edmonton sounded drained by his seven-year battle with the Alberta government over its unwillingness to provide equal rights to gays and lesbians. "It's weird," he mused near the end of an extraordinary day. "It sort of disembodied me. People didn't talk to me as a person anymore - they talked to me as 'the case.' " But the case was over now, and Vriend had won.
Just hours earlier, the Supreme Court of Canada unanimously supported his claim that Alberta's Individual's Rights Protection Act violated the Canadian Charter of Rights and Freedoms by failing to protect against discrimination on the basis of sexual orientation. Savoring victory with his partner, Andrew Gagnon, Vriend had shouted "Ha ha! I win," to cheers from his supporters. Then, at an Edmonton news conference, he made no attempt to hide his bitterness towards the Conservative government of Premier Ralph Klein that had fought him all along the way. "You demonstrated to the very end that you are not a government of the people," he said. "You are a government against the people."
The Supreme Court's decision has sweeping implications. From now on, the court directed, Alberta's human rights laws will be interpreted as protecting gays and lesbians, even if the province does not amend them. Klein said Alberta would accept the court's decision. "It's pretty hard to go against that kind of judgment," he said. But the government would do nothing for a week, he added, to allow caucus members to hear the views of constituents. Seeing the writing on the wall, the two other hold-out jurisdictions - Prince Edward Island and the Northwest Territories - signalled they will follow the court's lead by extending their human rights laws to cover sexual orientation as the other provinces and the Yukon already do.
While postponing action, Klein immediately ruled out one much-discussed possibility. The premier said his government will not invoke the charter's so-called notwithstanding clause - which allows provinces some leeway to opt out of specific charter provisions. But a ministerial task force has identified at least 26 pieces of legislation that the ruling affects, he added. And analysts said it was possible some specific issues, such as same-sex marriages or spousal benefits, could trigger use of the controversial clause in the future. Just three weeks earlier, a public outcry forced Klein's government to abandon its plan to use the opting-out clause to limit compensation claims for 700 people forcibly sterilized before 1972.
Vriend had no idea his case would wind up in the nation's highest court when he set out in 1991 simply to get his job back. He began working in 1987 as a lab co-ordinator at King's University College, a Christian school he had attended in Edmonton. Three years later, the school fired him because officials said he was involved in a homosexual relationship. Vriend prepared a complaint for the Alberta Human Rights Commission - only to discover that the province's act does not include protection against discrimination based on sexual orientation.
In 1993, he challenged the law under the charter, arguing that the absence of protection was unconstitutional. The Alberta Court of Queen's Bench ruled in his favor, ordering that sexual orientation be covered under the province's human rights legislation. But the provincial Court of Appeal reversed that decision, pointedly warning that judges should steer clear of infringing on the jurisdiction of provincial legislatures.
That issue - that politicians and not judges should make the laws - stood at the heart of Alberta's argument before the Supreme Court. But seven of the eight judges who rendered last week's ruling dismissed the view. "In my opinion," wrote Justice Frank Iacobucci for the majority, "groups that have historically been the target of discrimination cannot be expected to wait patiently for the protection of their human dignity and equal rights while governments move towards reform one step at a time." The lone Alberta judge, Justice John Major, said it should be left to the legislature to determine how to rewrite its legislation to protect gays.
Opinions were mixed on Alberta's radio talk shows after the verdict came down. While many callers said it was time Alberta got in step with the other provinces, others saw the court's ruling as overriding the will of elected politicians and opening the door for same-sex marriage and adoption. Randy Thorsteinson, leader of the Alberta Social Credit Party, took that argument further. "This decision will eventually legitimize pedophiles," he said. "They will argue that they cannot be discriminated against because of their sexual orientation." Meanwhile, the man who set it all in motion said he is no longer interested in getting his job back at King's. Vriend was content simply to enjoy his hard-won victory. "I'm glad I could at least be a part of it," he said wearily. "It's a good day for Alberta." Even if some Albertans did not agree.
Maclean's April 13, 1998