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Encyclopedia > Vriend v. Alberta

Vriend v. Alberta [1998] 1 S.C.R. 493 1998 SCC 30 (http://www.canlii.org/ca/cas/scc/1998/1998scc30.html) is a famous Supreme Court of Canada case that determined that a legislative omission can be the subject of a Charter violation. The case involved a dismissal of a teacher because of his sexual orientation and was an issue of great controversey during that period. The Supreme Court Building in Ottawa The Supreme Court of Canada is Canadas highest court and is located in the capital city of Ottawa. ... The Canadian Charter of Rights and Freedoms is a constitutionally entrenched bill of rights which forms part of the Constitution of Canada adopted in 1982. ...



Delwin Vriend was dismissed from his position as a lab coordinator at a college in Edmonton, Alberta because of his sexual orientation. He was prevented from making a complaint under the Alberta Individual Rights Protection Act because the legislation did not include sexual orientation as a prohibited ground of discrimination. Vriend sought a declaration from the Alberta Court of Queen's Bench that the omission breached s. 15 of the Charter. Delwin Vriend is a Canadian educator, who was involved in a landmark legal case on lesbian and gay rights in Canada. ... {{Canadian City/Disable Field={{{Disable Motto Link}}}}} Motto: Industry Integrity Progress City of Edmonton, Alberta, Canada Location. ...

Russel J. of the Court of Queen's Bench found in favour of Vriend as the college violated s. 15 of the Charter and could not be saved under s. 1 (see Oakes test). The Alberta Court of Appeal, lead by McClung J., overturned the decision. The Oakes test is applied by courts in Canada when any legislation is found to infringe upon rights guaranteed by the Canadian Charter of Rights and Freedoms. ... The Alberta Court of Appeal is the highest court in Alberta. ...


There were two issues put before the Supreme Court:

1     Do (a) decisions not to include sexual orientation or (b) the non-inclusion of sexual orientation, as a prohibited ground of discrimination ... of the Individual's Rights Protection Act ... infringe or deny the rights guaranteed by s. 15(1) of the Canadian Charter of Rights and Freedoms?
2     If the answer to Question 1 is "yes", is the infringement or denial demonstrably justified as a reasonable limit pursuant to s. 1 of the Canadian Charter of Rights and Freedoms?

The court decided yes to the first question and no to the second. They found that there is no legal basis for drawing a distinction of the Charter scrutinizing a positive act and an omission.

Section 15

The court looked at the language of s. 32 and found that it does not limit to only positive acts. It is not only to protect against encroachment on rights or the excessive exercise of authority, as McClung suggested, rather it is a tool for citizens to challenge the law in all its forms. The legislature's silence on an issue does not constitute neutrality with first assessing the application of s. 15.

Neutrality cannot be assumed. To do so would remove the omission from the scope of judicial scrutiny under the Charter. The appellants have challenged the law on the ground that it violates the Constitution of Canada, and the courts must hear and consider the challenge.

The court then looked at the application of the Charter to private activities.

Although the [Act] targets private activities and as a result has an 'effect' on those activities it does not follow that this indirect effect should remove the [Act] from the purview of the Charter. It would lead to an unacceptable result if any legislation that regulated private activity would for that reason alone be immune from Charter scrutiny.
The respondents' submission has failed to distinguish between "private activity" and "laws that regulate private activity". The former is not subject to the Charter, while the latter obviously is.

Section 1

The court followed this with a s. 1 analysis to which they decided was not applicable. In concluding, the court ruled that to remedy the situation "sexual orientation" must be read into the impugned provision of the Act.

External link

  • Full text (http://www.lexum.umontreal.ca/csc-scc/en/pub/1998/vol1/html/1998scr1_0493.html)



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