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 Title

Vriend: A Misinterpretation of the Charter

 Synopsis

The Supreme Court's decision in Vriend vs Alberta is a misuse of the law. It should be overturned in Alberta by invoking the section 33 notwithstanding power.

 Author

Ted Morton

 Author Notes

Professor of political science, University of Calgary, Executive Director of the Alberta Civil Society Association. Mr. Morton is also one of Alberta's two Senators-Elect, elected by Albertans to represent Alberta in the Senate but so far ignored by Liberal prime minister Jean Chretien when making Senate appointments. Co-author (with Rainer Knopf) of The Charter Revolution and The Court Party (2000, Broadview Press)

Book by Ted Morton
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The Charter Revolution and The Court Party
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 Essay - 4/11/1998

Introduction

The Supreme Court of Canada (SCC) has ruled against the Government of Alberta in the Vriend appeal. It has declared that the provinceís Individual Rights Protection Act. (IRPA) violates section 15 of the Charter because it does not include sexual orientation. This ruling will force the Government of Alberta to adopt and enforce public policies that are strongly opposed by a majority of Albertans. It represent not just bad policy but bad law. It contradicts the intended meaning of the Charter of Rights. The courts are not enforcing rights so much as inventing them.

The Vriend ruling is a clear misinterpretation of section 15 of the Charter. The term "sexual orientation" cannot be found in the text of section 15. The Court ignored evidence that the framersí intentionally excluded sexual orientation from the Charter. The judgesí ruling also manifests a shocking disregard for provincial rights and subverts the very purpose of constitutional rights--to protect citizensí liberty by restricting government. The Vriend ruling actually turns the Charter into an instrument for expanding the scope of government regulation, and for trampling on the freedom of religion and conscience of all Canadians who disapprove of the homosexual lifestyle.

The policy consequences of Vriend go far beyond simple issues of employment and services. If the Alberta government accepts the Courtís Vriend ruling, there will be controversial and negative policy consequences in public education, private education, family law and community life in general. These negative policy consequences are detailed in the accompanying file, "Vriend: The Negative Policy Consequences."

Because Vriend is bad policy as well as bad law, the Government of Alberta should use its section 33 override power to preserve the policy status quo of government neutrality on homosexuality. The Vriend ruling presents an opportunity for Alberta to re-establish the middle-ground--toleration, a policy that is neither anti-gay nor pro-gay. This is the true liberal position. It respects the sphere of personal privacy in sexual matters generally, so long as such conduct does not result in harm to others. It also respects the freedom of association of those who think that homosexuality is unnatural and unhealthy and that the gay rights movement is anti-family and threatens civil society.

The Vriend ruling is a misinterpretation of the Charter. It is incorrect in two ways. First, it purports to find protection for sexual orientation where there is none and where none was intended. Secondly, it declares government inaction to violate the Charter. The Charter was intended to protect us from what governments do, not from what they donít do. By ignoring this fundamental distinction, Vriend adds momentum to a recent trend in the Supreme Court: the view that the Charter creates legally enforceable obligations for government to expand their regulatory and spending programs. This view of the Charter directly contradicts the traditional understanding of constitutional rights as an instrument to restrict the scope and size of government. Needless to say, this view is the NDPís dream-come-true. If left unchallenged, this trend threatens the budget-balancing and debt reduction efforts of every government in Canada.

The Charter does not protect sexual orientation

The Vriend decision claims that the Individual Rights Protection Act (IRPA) violates section 15 of the Charter because it discriminates against homosexuals. The first problem with this argument is that section 15 does not protect homosexuality. Section 15 prohibits government discrimination on the following enumerated grounds: "race, national or ethnic origin, colour, religion, sex, age or mental or physical disability." Note that "sexual orientation" is not among the prohibited grounds of discrimination. This is not by accident.

Gay rights advocates lobbied hard to have sexual orientation protected by the Charter. When the wording of the Charter was being finalized, MP Sven Robinson, Parliamentís only self-identified gay, introduced an amendment to add "sexual orientation" to the list of protected categories in section 15. Responding to aggressive questioning from Robinson as well as opponents of the proposed amendment, then Justice Minister Jean Chretien stated not once but seven times that his government did not want the words "sexual orientation" in the Charter. "It is because of the problem of the definition of these words that we do not think that they should be in the constitution. . . . that is why we do not want them in the constitution. . . . We have a Parliament to decide that." On Jan. 29, 1981, the Joint House-Senate Committee on the Constitution rejected this amendment by a vote of 22-2.

Thus, not only is sexual orientation not protected by section 15, there is a clear legislative history that the framers purposely excluded it. Other things being equal, judges should follow the intent of the framers. It is clearly wrong for judges to add meaning to the Charter that was purposely excluded. If judges can rewrite the Charter to mean one thing today and the opposite tomorrow, the Charter loses its integrity.

Doubters need only consider analogous situations. Protection for homosexuals was not the only thing the framers purposely excluded from the Charter. Protections for the unborn, property rights and gun-owners were also rejected. Imagine the squeals of protest if suddenly the Court "read in" to the Charter the right to life of the unborn, property rights or the right to bear arms!

There is one potential exception to the rule of following the framersí intent with respect to section 15. Section 15 is deemed to be "open-ended," meaning that judges are allowed to add additional grounds of prohibited discrimination if they are analogous to the enumerated grounds. In 1995 when the Supreme Court ruled for the first time that sexual orientation should be added to section 15 as a non-enumerated ground, it used the "analogy" argument.

The clear evidence of a contrary framersí intent should still have precluded this, at least so soon after the adoption of the Charter. However, even we discount the importance of judicial fidelity to framersí intent, there are still compelling arguments that homosexuality is not analogous to the enumerated grounds.

The most common argument for granting "protected" status to homosexuals is that sexual orientation, like race or sex, is genetically predetermined. According to this argument, it is irrational, wrong and unethical to discriminate against a person for a personal characteristic over which the individual has no control. For homosexuals, their sexual orientation is not a personal choice but a destiny. There are two fatal flaws in this argument. The first is that a personís sexual orientation is not genetically "hard-wired" at birth. Second and no less damaging, the genetic determinism argument is rejected by gay rights activists.

The now widely accepted view that there is a "gay gene" that pre-determines a personís sexual orientation is pop-science at its worst. Like all pop science, there is an element of truth. Researchers have isolated genetic codes that are statistically linked to homosexuality. But like all such genes, these represent only a statistical probability--a predisposition, if you like--not an inescapable destiny. Like all forms of complex behaviour, homosexuality is a combination of genetics, environment (socialization), and free will. The interaction of these three factors is unique for each individual, and the number of possible patterns of interaction is infinite. Presently, the highest probability for predicting that a child will become a homosexual is 8 percent.

In this sense, there is no more a homosexual gene that there is an alcoholic gene, a basketball gene or an accountantís gene. If you have alcoholics in you family tree, you have a higher probability of becoming one yourself. But no more than that--just a higher probability. If you are six and a half feet tall, fast and can jump three feet in the air, you have a much greater chance of playing in the NBA than the rest of us. But there are a lot more tall, fast and athletic men who donít play in the NBA than who do.

Some might concede that even if sexual orientation is not analogous to sex or race, still, the very fact there is a genetic predisposition toward such behavior should qualify it for analogous protection. The problem with this argument is what character or behavioural trait isnít genetically influenced? Science is increasingly discovering that all forms of human behaviour--aggressive and passive, honest and deceitful, industrious and lazy, intelligent and stupid--have a genetic base. Again, such a genetic predisposition is only a statistical probability, and it interacts with a personís environment and free choice in an infinite number of ways to produce actual behaviour. If sexual orientation were to qualify for special state protection on the grounds of genetic predisposition, so would proclivities toward violence, laziness, promiscuity, alcohol/drug abuse and an infinite number of other forms of behaviour that widely viewed as negative.

In the end, however, we need not get bogged down in the murky implications of genetically predisposed behaviour. The leading gay rights advocates themselves reject the argument of biological or genetic determination. A recent review of twenty-two randomly selected Canadian law review articles on gay rights found that a large majority supported the view that, "Sexual orientation is a matter of choice, not nature."

Gay rights intellectualsí rejection of biological determinism is inspired less by good science than by their ambitions for the future. If homosexuality is biologically determined, then, by the same logic, so is heterosexuality. But if this is the case, the prospects for true sexual transformation of society are slim: the heterosexual majority would be as biologically "locked in" as the homosexual minority. Worse yet, the deterministic view affirms the "naturalness" of heterosexuality, and reduces homosexuality to an "accident" of nature. The goal of the gay rights movement is not to make homosexuals an object of public sympathy and compassion, like those born with polio or multiple sclerosis. Rather, they want to destroy the very idea that heterosexuality is the norm, since it is this norm that "marginalizes" homosexuals. Arguing for protection based on genetic inheritance may get homosexuals into the "section 15 club" of protected minorities, but it would only reinforce the view of heterosexuality as the norm.

A final argument for adding sexual orientation is the claim that homosexuals share the same legacy of a "historically disadvantaged minority" as the other section 15 groups. That is, like certain other racial, religious and ethnic minorities, homosexuals have been singled out for punitive or discriminatory treatment.

While this argument has some historical purchase, it is unsupported by contemporary Canadian practice. In the last 30 years, there is not a single example of a Canadian government targeting homosexuals for punitive or discriminatory behaviour. In 1969, it was the heterosexual majority that decriminalized sodomy. Since 1987, it has been heterosexual majorities that have added sexual orientation to provincial anti-discrimination laws in eight of the ten provinces. In short, there is no recent evidence of state persecution of homosexuals, and considerable evidence that the heterosexual majority has gone out of its way to practice and promote toleration of homosexuality.

The effects of these policies can be seen in the examples of prominent homosexuals who occupy positions of power and prestige in contemporary Canadian society: a recent Attorney-General of Ontario; the current editor of the Globe and Mail; the late speech writer to the Prime Minister; a recent Director of the Ontario Human Rights Commission; and several of the most influential law professors in Canada. The Globe and Mail recently ran a feature weekend story--"Weíre here. Weíre queer. You love it"--on the mediaí s support for gay rights personalities and themes. As these examples show, homosexuals are anything but a powerless or persecuted minority in contemporary Canadian society.

The purpose of the Charter is to restrict scope of government action not inaction

The Vriend decision claims that the Alberta Human Rights Act (IRPA) violates section 15 of the Charter because it discriminates against homosexuals. The second problem with this argument is that the AHRA does not even mention homosexuals or sexual orientation. It is silent. The government, reflecting the public opinion of its constituents, has chosen to remain neutral on the issue of homosexuality. Its laws, including the AHRA, neither punish nor reward homosexual behaviour. They are silent. It is this silence--this refusal to take sides--that the Court has declared to be an unconstitutional form of discrimination.

By treating government inaction the same as government action, the Supreme Court is guilty of using a double standard. When Joe Borowski, anti-abortion crusader from Winnipeg, came to the Supreme Court in 1988, the Court told him they could not hear his Charter arguments because there was no longer an abortion law left to challenge. (Six months earlier, the Court had struck down the abortion provisions of the Criminal Code.) To do so in the absence of a law, wrote Justice Sopinka for a unanimous Court, would result in the appearance that the Court was trying "pre-empt a possible decision of Parliament by dictating the form of legislation it should enact." Such unnecessary pronouncements on the rights of the unborn, Sopinka declared, "would intrude on the right of the executive. . . and be a marked departure from the traditional role of the Court." Why has the Court chosen to abandon this traditional standard in the Vriend case?

Stripped of the homosexual issue, the Vriend ruling stands for the new and revolutionary principle that section 15 can be used to compel governments to undertake regulatory or spending programs that they oppose. This turns the purpose of the Charter upside down: instead of protecting society against undue state interference, the Charter is used to extend the reach of state power. This was not the intent of those who adopted the Charter, and until recently, this view had no judicial support. Unfortunately, a recent trend suggests that the courts, cheered on as always by Charter-based interest groups, are now willing to go down this previously forbidden road.

In September, 1997, while the Vriend appeal was waiting to be heard by the Supreme Court, an Ontario judge ruled that the Ontario governmentís legislation canceling future payments in a pay equity program also violated section 15. Ontario voters had of course elected the Harris government in large part to do something about the deficits run up by the spending habits of the previous NDP government, of which the pay equity program was a legacy. The cost of not canceling the remaining payments on the Ontario NDP's pay-equity legislation are estimated at $418 million.

Several weeks later in Eldridge v. Attorney-General of British Columbia (1997), the Supreme Court of Canada declared that the failure of a provincially-funded hospital to provide an interpreter for deaf patients constituted discrimination against the handicapped and a violation of section 15. The annual cost of providing interpreters for deaf people is put at a modest $150,000 per hospital. But this is just the tip of the iceberg. The principle embraced by the Court is that under section 15 of the Charter, all governments have a positive obligation to accommodate all disabled persons in all government services--health, education, transportation, etc. Treating them the same or ignoring requests for special accommodation will no longer be acceptable. Inaction is treated the same as action. (This is the connection to Vriend.) When the costs of this are added up--in a decade or three--they may make Ontario's pay equity bill look small by comparison.

Taken together, these more cases have the potential to transform the Charter from a state-limiting instrument to a state expanding instrument. Even the pro-Gay Globe and Mail editorial page has twice denounced the principles of Eldridge and Vriend.

William Thorsell, Editor of the Globe and Mail and outspoken advocate of gay rights: "It is the constitutionality of laws that do exist, rather than laws that do not, that is the proper province of the courts."If the Supreme Court remains committed to the underlying principle of Vriend, Eldridge and the Ontario pay equity ruling, this opens the door to interest group use of Charter litigation to challenge government cutbacks of entitlements or social programs and even to order the addition of new ones.

Charter does not apply to private action

The Vriend ruling is bad law for a second reason. The Courtís failure to recognize this distinction leads it to a policy result that was explicitly rejected by the Framers of the Charter. When the Joint House-Senate Committee on the Constitution was discussing the meaning of the equality rights in section 15, the government explicitly rejected--not once but twice--the idea that section 15 applied to "private" (as opposed to "state") discrimination. On January 29, then Calgary MP Jim Hawkes put the following question to Mr. Fred Jordan, the Senior Counsel for the Justice Department:

Mr. Hawkes: "In your explanation . . . you indicated that the NDP amendment would start to intrude into the private sector and you made the comment that you would prefer that [state] intrusion into private sector activity to be handled through human rights codes, rather than through the constitution. Could you elaborate on that kind of logic?

Mr. Jordan: "Mr. Chairman, I think that when I spoke about what is better handled through ordinary human rights legislation, be it provincial or federal, was the question of private relationships where one individual is discriminating against another as opposed to what the Charter is proposing to do, and that is to stop the state from enacting laws which are of a discriminatory manner."

Several minutes later, NDP MP Svend Robinson revisited the subject.

Mr. Robinson: "Mr. Chairman, my first question is with respect to the matter of the private sector. Would the Minister clarify his views. Do you believe that these grounds of unreasonable discrimination should not be extended to the fundamental areas of employment, the right to a job, to housing and to public services, is that you position?"

Mr. Jordan: "Mr. Chairman, the governmentís position has already been expressed on this and I can simply confirm it, that the Charter of Rights, in this area . . . should be confined to relations between the state and individuals and not get into the area of relationships between individuals themselves."

One cannot imagine a clearer statement that the Charter was never intended to force provincial governments to infringe the freedom of association of individual Canadians--which includes the freedom not to associate--in the name of equality. Yet this is precisely what the Supreme Court has done in Vriend.

Conclusion

To summarize, there is no legal basis for the Vriend decision other than the personal policy preferences of the judges. Protection for sexual orientation is not in the text of the Charter; it is not in the framersí intent; and it is not in the logic of the Charter. To the contrary, Vriend reverses the intended meaning of the Charter. The personal policy preferences of nine non-elected judges do not bind the rest of Canada on matters of constitutional policy. Vriend should be overturned by invoking the section 33 notwithstanding power.


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