In Vriend v. Alberta, the Supreme Court of Canada held that the Human Rights Legislation in Alberta must prohibit discrimination on the basis of sexual orientation. This decision also confirmed that a religious school, college or institution may require its employees to follow certain religious teachings and to discharge from employment those who choose not to do so. The implications of the decision for those in the private sector governed by human rights legislation are profound. Section 15 of the Charter is now directly applicable to the private sector through the operation of human rights Codes and the Supreme Court of Canada will read in new duties on the private sector as new rights are developed by the Supreme Court, without any input from legislators in Canada.
On April 2, 1998, a majority of the Supreme Court of Canada in Vriend v. Alberta (S.C.J. [April 2, 1997]) declared that the omission of sexual orientation from the Individuals' Rights Protection Act ("IRPA") (Now known as the Human Rights, Citizenship and Multiculturism Act) was inconsistent with section 15 of the Canadian Charter of Rights and Freedoms ("Charter") and not justified under section 1. Beyond the specific impact on IRPA, the ramifications of the decision will be far-reaching and profound for three reasons. Firstly, the Supreme Court reaffirmed the significance of the bona fide occupational requirement ("BFOR") defence in human rights law. Secondly, although the Charter has historically applied only to government actors, the Vriend decision has opened the door for application to the private sector. The Charter will now enter into the private sphere through the back door of human rights codes across the country. Thirdly, the majority of the Court has elevated the notion of judicial activism to a new and all-encompassing level. The remedy of reading-in or judicial legislation will now be available in virtually any situation.
The Supreme Court of Canada, in Vriend, was asked to address the fundamental question of whether or not the omission of sexual orientation from the protective ambit of human rights legislation in Alberta was inconsistent with section 15 of the Charter. Justice Cory concluded that the omission of sexual orientation from IRPA violated section 15 (Justice Cory wrote the majority decision on the issue of section 15. Justice Iacobucci wrote the majority decision on Section 1 and remedy. Justice L'Hereux-Dube wrote a concurring decision on section 15. Justice Major was the sole dissenter on the issue of remedy). Justice Iacobucci then found that this violation was not justified in a free and democratic society. Nevertheless, although Delwin Vriend was successful in his challenge, he was not successful in impugning the activities of King's University College. King's had ended his employment because of his sexual practices, practices which violated the moral code of the University College.
Justice Iacobucci, in his analysis of section 1, reaffirmed the importance of the notion of a bona fide occupational requirement in this case. He noted:
...ss. 7(3) and 8(2) excuse discrimination which can be linked to a bona fide occupational requirement. The balancing provisions ensure that no conferral of rights is absolute. Rather, rights are recognized in tandem, with no one right being automatically paramount to another.
This principle was also affirmed by Justice Major. Justice Major accepted that it would ultimately be the task of the human rights commissions and not the Supreme Court to make such determinations. According to Justice Major "[the] issue of whether a private fundamentalist Christian college can legitimately refuse to employ a homosexual teacher will be for the Alberta Human Rights Commission, and not this Court, to decide."
In essence, the Court reaffirmed the importance of the BFOR defence in human rights law and suggested that although Mr. Vriend was successful in his challenge to the overall framework of the legislation, his victory went no further. Even if Mr. Vriend's claim is processed, the complaint will likely be denied on the basis of a BFOR. This is because the Supreme Court accepted the work of the legislature in balancing competing interests. The BFOR defence is now even more firmly entrenched in human rights jurisprudence.
APPLICATION OF THE CHARTER
The Vriend decision has expanded the scope of the Charter in a significant and profound manner. Vriend is a watershed. It marks the beginning of a new constitutional era. The branches of the living tree of the Charter have now taken root in the private sphere. Since 1982, the Supreme Court has told us in cases such as Dolphin Delivery ( 2 S.C.R. 573), that the Charter would only be invoked where there was government action. While the Charter was sacred, this sacred tree did not have any application to the private sphere of our society. Prior to Vriend, human rights legislation was not required to mirror the Charter. Now it must. In Vriend the Supreme Court has elevated human rights legislation to full constitutional status by requiring governments such as Alberta to legislate in exact accordance with the Charter. No longer will democratic governments be the arbiters of social conscience for the private sector. Instead, this task has been taken over by the Supreme Court of Canada. Now that human rights legislation in Canada has been imbued with section 15 of the Charter, private employers, landlords and retailers will be required to look beyond the specific terms of human rights legislation and become experts in the norms and language of the Charter.
Justice Iacobucci, writing for the majority, declared that the appropriate remedy for Mr. Vriend was for the Court to read the words "sexual orientation" into the IRPA and essentially correct the deficiency in IRPA through legislative, not judicial action. In his decision, Justice Iacobucci discussed the approach of the Supreme Court of Canada in Schacter and commented as follows:
In Schacter, supra, Lamer C.J. noted that when determining whether the remedy of reading in is appropriate, the courts must have regard to the "twin guiding principles", namely, respect for the role of the legislature and respect for the purposes of the Charter. Turning first to the role of the legislature, Lamer C.J. stated at p. 700 that reading-in is an important tool in "avoiding undue intrusion into the legislative sphere...[T]he purpose of reading in is to be as faithful as possible within the requirements of the Constitution to the scheme enacted by the Legislature."
Justice Iacobucci agreed with the approach of Chief Justice Lamer and concluded that it should be applied in Vriend in this way:
Where a statute has been found to be unconstitutional, whether the court chooses to read provisions into the legislation or strike it down, legislative intent is necessarily interfered with to some extent. Therefore, the closest a court can come to respecting the legislative intention is to determine what the legislature would likely have done if it had known that its chosen measures would be found to be unconstitutional. As I see the matter, a deliberate choice of means will not act as a bar to reading in save for those circumstances in which the means chosen can be shown to be of such centrality to the aims of the legislature and so integral to the scheme of the legislation that the legislature would not have enacted the statute without them.
Justice Iacobucci then determined that "the process by which the Alberta Legislature decided to exclude sexual orientation from the IRPA was inconsistent with democratic principles. Both the trial judge and all the judges of the Court of Appeal agreed that the exclusion of sexual orientation from the IRPA was a conscious and deliberate legislative choice."
While this statement regarding exclusion of sexual orientation from IRPA is not supported by the legislative record, the decision to read sexual orientation into the legislation in light of these conclusions seems to be wholly inconsistent with the decision of Chief Justice Lamer in Schacter. The Supreme Court in Schacter had expressly indicated that reading-in would only be utilized in the "clearest of cases". It is doubtful that if a legislature expressly and unequivocally refuses to amend legislation, there exists the clearest of case.
Justice Major was the only judge who dissented on remedy. He noted the fact that Schacter did not contemplate circumstances "where the Legislature's opposition to including sexual orientation as a prohibited ground of discrimination [was] abundantly clear on the record". Justice Major explained his position in this way:
Reading in may be appropriate where it can be safely assumed that the legislature itself would have remedied the under inclusiveness by extending the benefit or protection to the previously excluded group. That assumption cannot be made in this appeal.
The issue may be that the Legislature would prefer no human rights Act over one that includes sexual orientation as a prohibited ground of discrimination, or the issue may be how the legislation ought to be amended to bring it into conformity with the Charter. That determination is best left to the Legislature.
The responsibility of enacting legislation that accords with the rights guaranteed by the Charter rests with the legislature. Except in the clearest of cases, courts should not dictate how the under inclusive legislation must be amended. Deference and respect for the role of the legislature come into play in determining how unconstitutional legislation will be amended where various means are available.
Unfortunately, the decision of Justice Iacobucci introduces significant uncertainty regarding the remedy of "reading in". It is apparent from the decision that the traditional notion of restricting the "reading in" remedy to the "clearest of cases" is no longer the threshold for intruding into the legislative sphere. The Supreme Court of Canada has apparently assigned to itself the role of "super legislator" and will create and rewrite legislation even in the case of a clear legislative intent to do otherwise.
The Vriend decision signals a new era of judicial activism and marks a dramatic shift in the once clear delineation of the separation of powers in the Canadian constitutional democracy. Most importantly, this decision signals a dramatic shift away from the traditional principle of judicial deference. The Supreme Court has signaled that it is not going to honour the line between legislators and judges. Vriend suggests that when the judges of the Supreme Court believe they can improve on legislation, they will. This will happen even if a legislature has specifically rejected an amendment or has indicated that is does not intend legislation to be as far reaching and as all encompassing as the Supreme Court believes it should be. This marks one of the most significant shifts in the dialogue between the legislature and the judiciary since the introduction of the Charter.