Nov 28, 2014

Positive Duties vs. Legislative Omissions: The Charter

Vriend v. Alberta, [1998] 1 SCR 493

Background: Sexual orientation was deliberately omitted from the prohibited grounds in Alberta’s Individual’s Rights Protection Act. The IRPA was to prohibit discrimination in public life, and establish a commission for enforcement. It prohibited discrimination in public notices, public services, rentals and employment or trade union membership on the basis of race, religious beliefs, colour, sex, marital status, age and ancestry or place of origin.

Facts: Vriend was an employee of King’s College, a Christian educational institution. He was dismissed by his employers after affirming that he was gay. He attempted to file a complaint under the Act but was rejected. He brought an action to declare that the omission offended the Charter.

Issue: Does section 32 of the Charter prohibit consideration of a section 15 violation when that issue arises from a legislative omission? YES

Held: The SCC found the omission violated Vriend’s equality rights, and held the words “sexual orientation” should be read into the relevant provisions of the IRPA.

Ratio: S. 32 of the Charter allows consideration of Charter violations arising from governmental inaction/under inclusiveness

Reasoning:

·The threshold test requires that some “matter within the authority of the legislature” exists which is a proper subject of Charter analysis

oCourts are not bound by omissions made by the legislature, and the scope of a Charter review is not restricted when challenging omissions

·S. 32(1)(b) states that the Charter applies to all matters within the authority of the legislature, and does not suggest that a positive act is required

oGovernment action includes what they don’t do as well as what they do

·The Charter invites dialogue between Parliament and the Courts

Note: This case created a right with respect to sexual orientation that was never part of the Charter by reading in the word sexual orientation under s. 15. Still open as to whether the Charter can be used in a free standing way to force government action on issues where the government has done nothing.