Equality before the law

Vriend v. Queen and A-G for Alberta

Facts: Vriend was fired from King's College, a fundamentalist Christian college because he was gay

Vriend applied to Alberta Human Rights Commission: told his case was not covered by the IRPA

Vriend got a court to declare IRPA unconstitutional; Alberta appealed, decision reversed; Vriend appealed to Supreme Court

Prohibited grounds of discrimination in Alberta:

race, religion, colour, gender, physical and mental disability, age, ancestry, place of origin, marital status, source of income and family status.

But NOT sexual orientation

Is this OK?

*Claim by Alberta: nothing for Court to do, because the case has to do with an OMISSION rather than an ACTION by the provincial legislature

*BUT application of Charter applies to all "matters within the authority of the legislature of each province"

*Further, if a group were explicitly excluded, that would be unacceptable

*provincial government should not be able to do with silence what it cannot do with words

*what about the private litigation issue?

*The issue is not Vriend v. Kings College. Issue is the constitutionality of IRPA.

*Claim: IRPA does not discriminate against gays and lesbians, since it offers them same grounds of protection as it does to every one else.

*Answer: HA! does not protect them where they need protection.

a) cannot get relief when they are discriminated against on the basis of their sexual orientation

b) by not offering protection sends the message that gays and lesbians CAN BE discriminated against

*Analogous grounds argument: sexual orientation is relevantly similar to protected grounds in IRPA (and Charter)

a) deeply personal

b) difficult or impossible to change

And furthermore, is not connected to job performance

*Decision: sexual orientation must be "read in" to IRPA; Vriend now has grounds for complaint to Alberta Human Rights Commission

Dissent:

*Justice Major agrees with claims about discrimination

*But argues that Court should declare sections which omit sexual orientation constitutionally invalid

*Allow Alberta Legislature to deal with the matter: more democratic

Political issue: Alberta could decide to override this ruling by invoking the notwithstanding clause, but......

Section 1: limits on rights

R. v. Oakes

Facts:

* Oakes is convicted of possession of a narcotic

* s.8 of Narcotic Control Act states: if an accused is in possession of a narcotic, then THE ACCUSED has to prove that he/she was not in possession "for the purpose of trafficking" (a more serious charge)

Question: does s.8 of the Narcotic Control Act violate the Charter, specifically, the legal right to be presumed innocent until proven guilty?

Answer: yes

"Reverse onus" violates the presumption of innocence: accused might be convicted of trafficking, even though there was a reasonable doubt regarding guilt.

Violates presumption of innocence, even if the accused has only to prove case on balance of probabilities

Tells us something interesting about the presumption of innocence.

But real importance of case lies elsewhere:

"Oakes test" for section 1 of the Charter

*Section 1 indicates rights are not absolute:

rights subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society

"It may become necessary to limit rights and freedoms in circumstances where their exercise would be inimical to the realization of collective goals of fundamental importance"

Can Narcotics Control Act be saved by appeal to Section 1? Stay tuned.