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Andrew Paul [00:00:10] Hello, and welcome to The Well Endowed Podcast. I’m Andrew Paul.
April 2nd, 2023 marks the...

25th anniversary of the historic Supreme Court ruling on Vriend v Alberta. This ruling paved the way for human rights protection for sexual and gender minorities across Canada, ensuring that an entire community could access the same protections and recourse that so many others took for granted. 25 years on, it can be easy to forget that these rights were not always afforded to everyone. It is also easy to forget that without care, the rights and freedoms we enjoy today can be taken away a lot easier than we may think. To ensure our future of continued equality, it is important to know the past.

Edmonton Community Foundation plays many roles in the community. We are the largest non-governmental funder of the charitable sector in the greater Edmonton area, providing more than $30M a year to hundreds of charities. We are also a community convener, providing space for communities to tell their stories. This is why we’re partnering with the Edmonton Queer History Project to present this series. Before we begin, we would like to note that the terms “queer” and “trans”, and “sexual and gender minorities” are used in this series to refer to the 2SLGBTQI+ community as a whole. We acknowledge the great diversity within this community, and you can find more information about this in our show notes.

And now, Vriend Versus Alberta.

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Doug Elliott [00:01:39] There was a huge backlash against our community that culminated with the bathhouse raids.

Michael Phair [00:01:44] The bath raids of Pisces in 1981. There were, uh… 53 of us, I think, that were arrested.

Dr. Kristopher Wells [00:01:53] Uh, for many people it was a dangerous time to grow up. It was to be visible.

Michael [00:01:59] You didn’t wanna be noticed, and you didn’t want it being known that you were gay.

Doug Stollery [00:02:03] You could be fired from your job because you were gay. You could be refused employment on the basis that you were gay. You could be refused service in a restaurant because you were gay or lesbian.

Doug E [00:02:13] It came as no surprise to me that Alberta was one of the last provinces to have sexual orientation in their human rights legislation.

Julie Lloyd [00:02:24] The power and enthusiasm for human rights that was rekindled through the Canadian Charter of Rights and Freedoms in 1982 and ‘85 just was a… was a wildfire in the law schools.

Frank Iacobucci [00:02:36] I don’t wanna leave with an impression that it was just courts who were the only agents for change.

Dr. Kristopher Wells [00:02:43] And then when Vriend’s case came forward, they were ready. The community was ready.

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Darrin Hagen [00:02:55] Welcome to episode one of Vriend Versus Alberta, a special podcast series detailing the groundbreaking Supreme Court ruling that paved the way for equality for Canada’s queer and trans communities.

I’m your host, Darrin Hagen. This series is produced by Edmonton Community Foundation and the Edmonton Queer History Project.

In the history of the rights of sexual and gender minorities in Canada, there are some pivotal landmarks that altered everything that followed. This podcast will explore one of the most complex and significant moments in the nation’s evolution towards enshrining equality for queer and trans Canadians.

It’s the story of how something as simple as a person being fired from a job could launch a human rights challenge that would wind its way all the way to the top court in the country. The story of how a community supported Delwin Vriend after he was fired from his job at a religious college for being gay. It’s the story of how a prairie city rallied behind one person to push back against the injustice of legislated homophobia, forever altering the legal landscape of Canada for its population of sexual minorities, and more broadly… for the country as a whole.

But to fully understand how this historic Supreme Court decision changed the way we understand the Canadian Charter of Rights and Freedoms, we will need to look back at the political and social reality of being a queer Canadian in the tumultuous decades leading up to the court challenge.

This episode will revisit the culture of systematic discrimination facing Canada’s queer and trans community, and how the laws eventually began to evolve and make room for the possibility of change. We will also learn how, for decades after the decision, the government of Alberta challenged these new laws to preserve the status quo by suppressing queer equality to keep our community from fully participating in the vibrant life of this province, forcing us to remain in hiding or risk losing our homes, jobs, freedoms that many take for granted.

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Frank Iacobucci [00:04:49] Uh, well, my name is Frank Iacobucci, and I’m a retired Justice of the Supreme Court of Canada.

The history of same sex relationships in Canada is relatively recent in terms of important changes that took place. You can go back to the ’50s, and there was not much done from that decade. But in the ‘60s, you see the emer— the emergence of issues. Some will be familiar with the Klippert case, a man who was charged with criminal violations and… of… indecent acts. And not only was he charged with the criminal violations, he was charged as a— basically a dangerous offender. And that’s— that was extremely important. And it led to his, uh, conviction.

Darrin [00:05:43] There was dissent in the 1967 Supreme Court decision, which spoke to the injustice of Klippert’s landmark case. Chief Justice John Cartwright suggested that the sentence of preventative detention should be dismissed and that courts should clarify the existing laws.

Frank [00:05:59] He said, in effect… Understand— He could understand that he would— he could be an offender, but why was he dangerous? Because the acts that he allegedly committed were in private, with consent, uh, with a partner and why was that dangerous? Now, that was an important event because, along with other events, the bathhouse raids of people that many will be familiar… with led to an intervention by the then Justice Minister Pierre Elliot Trudeau to say that the state has no place in the bedrooms of the nations. And that expression took hold with a lot of people. There were demonstrations in Toronto, and it led to then Justice Minister Trudeau changing the criminal code to eliminate the charge of buggery. And I-I dwell on that because that’s all pre-Charter.

Darrin [00:06:55] Activist and openly gay lawyer, Doug Elliott, already had years of activism under his belt in Toronto when the Vriend case came onto his radar. Doug Elliott would eventually go on to deliver a submission to the Supreme Court of Canada in support of Delwin’s case on behalf of the Canadian AIDS Society. He remembers many of the moments where gay rights were under attack in Eastern Canada.

Doug Elliott [00:07:16] Well, I’ve been a gay activist for a long time. We had, in 1969, a great burst of hope with the criminal law reforms and the birth of the gay liberation movement with Stonewall. And in the early seventies, there was some progress. A lot of, uh, groups were established to advance LGBT rights in Canada. But in the late ’70s, there was quite a backlash. There were no other legal reforms, with rare exception. Uh, the city of Toronto passed an anti-discrimination bylaw, the province of Quebec amended their human rights legislation to include sexual orientation.

But… the law basically stalled in the ’70s. And there was a huge backlash against us beginning around 1976 or so. Uh… some will remember in Montreal, Mayor Drapeau and the raids on the gay bars in Montreal to, so-called, “clean up” Montreal for the 1976 Olympics. There was the Emanuel Jaques murder in Toronto. Uh, there was a huge backlash against our community that culminated with the bathhouse raids, which took place— Uh, the huge ones in Toronto where I came out to protest in 1981, but also, in other places like the Pisces, uh, bathhouse in Edmonton that was raided also in 1981.

Darrin [00:08:46] Michael Phair is a longtime queer rights activist in Edmonton, as well as being the first openly gay politician elected in Alberta. For him, the question of equal rights protection forever changed his life when he was arrested as a found-in, in the notorious bathhouse raids that swept across the nation.

Michael Phair [00:09:04 For me, and I think for, uh… th-the broader community… the pivotal point was, uh, the bath raids of Pisces in 1981 in, um, very end of May into early June. Um, i-it was a huge event because there were 53 of us, I think, that were arrested. Um, then the owners were arrested as well, as well as the people working there by the police and was, perhaps, the largest mass arrest in Alberta before.

Um, we were all, uh, given, uh— We were charged with being found-ins, which is a criminal offense, were told that, uh, we would be interviewed. Uh, there was a judge or two there, and somebody that works in the court. And a number of people were interviewed. I was not, they only interviewed about 10 or 12, and then they said everybody could leave, uh, which I did, and went back to where I had parked my car right by Pisces and-and drove home. And on the seven o’clock news, the top of the news was the story about Pisces, the raids. I was like, “Oops, I think this is going to go on.” ‘Cause I thought I’d go home and take a nap and be fine, kind of thing. And that… and that wasn’t going to happen.

Darrin [00:10:19] Dr. Kristopher Wells is an activist and educator, and the director of the MacEwen University Center for Sexual and Gender Diversity. He remembers life before the Vriend decision.

Dr. Kristopher Wells [00:10:30] For many people, it was a dangerous time to grow up. It was to be visible, to make your— not only your identity, but your relationships part of the fabric of the city and province. And with, uh, having to hide in the shadows often comes a lot of shame and stigmatization with that. And so, I don’t think we can ever underestimate the impacts, not only of the overt homophobia of the time, but also the internalized homophobia. You know, when you are afraid to hold your partner’s hand because somebody might see that, and that might mean you lose your job, uh, because somebody suspects that, um, you’re gay, lesbian, or bisexual.

Darrin [00:11:14] The reality was that discrimination against queer and trans Canadians permeated every level of our lives, even as the legal tide slowly changed direction. Small but significant advances showed that there was the possibility of hope on the horizon. In 1978, immigration laws were changed to prevent discrimination against gay immigrants following a three year battle led by gay activists from across Canada.

But a watershed moment… was the creation of the Canadian Charter of Rights and Freedoms.

Frank [00:11:44] And then there were other events taking place in that pre-Charter period. Immigration law was changed to allow gay individuals to come to Canada. They were a prohibited class. Quebec introduced legislation way be— ahead of anybody else on sexual orientation being a ground for, uh, prohibited discrimination. So these were events of the pre-Charter.

But the real… the real turning point was the introduction of the equality provisions of the Charter of Rights and Freedoms, which I believe the Charter was one of the outstanding contributions of Prime Minister Trudeau.

Darrin [00:12:36] Julie Lloyd is an Alberta provincial court judge, and is one of the first openly gay or lesbian judges in the province. Before she became a judge, she was a lawyer based in Edmonton, and was an intervener in the Supreme Court hearing on Vriend v Alberta. Her activism began as she watched the world change while studying to become a lawyer.

Julie Lloyd [00:12:54] Because I was a queer person who went to law school. And when I was in law school, we learned a lot about the Canadian Charter of Rights and Freedoms. We lear— We read those cases, we understood the legal machine, which is very different than the political machine. And so, when I was a queer person going through law school, I was deeply optimistic. I was reading the cases, the decisions that the Supreme Court was handing down. Not in queer issues directly, but generally speaking. And it was very hopeful.

The power and enthusiasm for human rights that was rekindled through the Canadian Charter of Rights and Freedoms in 1982 and ‘85 just was a… was a wildfire in the law schools. And so, I came out early, uh, in my professional experience with a North Star. And my North Star was the Charter of Rights and Freedoms, and my North Star was Section 15. And I had, and continue to have… a complete confidence that that is the most powerful tool that we have in this country to help minority folks.

Darrin [00:13:59] Canada’s minorities now had a powerful tool for change, but in the list of marginalized Canadians that could now expect protection, sexual orientation was not expressly included in the equality provisions of Section 15 of the Charter.

Doug E [00:14:15] In 1982, when they, um, promulgated the Charter of Rights, they had refused to include sexual orientation as an express ground of protection. But… the liberal government in a compromise had left a list of protected grounds open-ended, uh, so there was a suggestion that perhaps sexual orientation was an included analogous ground.

Um, so starting in 1985, when Section 15 came into effect, um, LGBT activists and their lawyers started taking governments to court. But up until 1992, basically the cases had all failed. Um, the courts always agreed that sexual orientation was included under Section 15 as an analogous ground, but they always held that under Section 1 of the Charter of Rights that the discrimination against us was demonstrably justified. So we lost.

Darrin [00:15:23] In 1995, the Supreme Court of Canada confirmed that, although sexual orientation is not expressly referenced in Section 15 of the Charter, it is analogous or equivalent to those other grounds listed in Section 15. This means, governments in Canada are prohibited from discriminating against their citizens on the basis of sexual orientation. But the Charter applies only to governments and people acting on behalf of governments. Protections against discrimination by non-government actors are found in provincial and federal legislation, not the Charter.

Legislation across Canada provides protection against discrimination on a variety of grounds. Quebec was an early champion recognizing sexual orientation in its provincial protections as early as 1977, becoming the first jurisdiction in the world to ban discrimination based on sexual orientation.

Over the next 15 years or so, other provinces followed Quebec’s lead. By the mid 1990s, human rights legislation in every province in Canada prohibited discrimination on the basis of sexual orientation… except Prince Edward Island and Alberta. Opposition parties in Alberta proposed amendments to include sexual orientation. Those proposed amendments were defeated. The Alberta Human Rights Commission itself recommended including sexual orientation as a prohibited ground of discrimination. The Alberta government refused to accept that recommendation.

The issue remained as to whether the decision by the Alberta government not to provide this protection constituted a breach of the Charter of Rights and Freedoms.

Doug E [00:16:59] Well, I’ve always thought of Alberta as the most difficult terrain in Canada for the LGBT community. Uh, it’s always had a much higher percentage of small sea and big sea conservatives. There’s a big Bible Belt in Alberta that is strongly connected to American Evangelicals. And so, it’s always been very tough, I think, for the LGBT community in Alberta compared to, you know, Toronto or Montreal, for example.

I have family and friends in Alberta, and they’re— [laughing] some of them are LGBT folks, and the ones who aren’t are all very supportive. So I don’t mean to suggest that everyone in Alberta is anti-LGBT. Far from it. But I will just say that i-it came as no surprise to me that Alberta was one of the last provinces to have sexual orientation in their human rights legislation. And it also came as no surprise to me that there was longstanding and very vocal opposition to adding that to the human rights law in Alberta.

Darrin [00:18:16] Independent Senator Paula Simons was a journalist working at the Edmonton Journal when the Vriend case wound its way through Canada’s legal system. She recalls pre-equality Alberta… clearly.

Paula Simons [00:18:28] Before the Delwin Vriend decision, Alberta law was silent on the rights of people who were— Wha-what was the phrase they would’ve used? “Had a same sex orientation.” Uh, I mean, Alberta’s human rights legislation, which was drafted in 1972 under the— instead of in the first years of the Peter Lougheed government… was groundbreaking in its time in 1972. But it was completely silent about the rights of queer Albertans, or trans Albertans, even more silent. And so, if you applied for a job, if you wanted to rent an apartment, if you wanted to make a reservation in a restaurant, it was absolutely not illegal in any way to be denied those services. The law wasn’t explicitly discriminatory, but it provided no protection.

Darrin [00:19:14] Doug Stollery was one of the only openly gay lawyers in Edmonton when Delwin Vriend’s story came to his attention. He ultimately served as co-counsel when the case moved to the upper courts. For him, as for all gay activists, the gaps in protection for marginalized queer people could be felt on a personal level.

Doug Stollery [00:19:33] The Alberta government made a conscious decision that human rights legislation should not include protections against sexual orientation discrimination. So that meant, in Alberta, you could be fired from your job because you were gay. You could be refused employment on the basis that you were gay. You could be refused service in a restaurant because you were gay or lesbian. You could be, uh, tossed from your apartment i-if your landlord determined that you were gay or lesbian. So, that was the environment in Alberta at the time.

Michael [00:20:04] My sense was that people were kind of like, “Well, you know, if you just kind of stay under the, you know… and not— don’t make any noise or much of a fuss, people and won’t even notice you around, and it’s no big issue. That no one bothers gays and lesbians.” And there still was this perception that you didn’t wanna be noticed and you didn’t want it to be known that you were gay. And there were some real reasons for that because, at the time in Alberta, under the Individual Rights Protection Act, which was our— the Act that the provincial government had brought in to ensure that people weren’t discriminated against… it did not include gays and lesbians and trans, etc.— uh, gender within it.

And so, people like me could be fired from employment. I could be refused services and I could be refused housing in terms of apartments or whatever, if wanted. So there was always tha-that danger. And there were a number of people over the years that, in fact, were discriminated against publicly. And what was very much a concern.

Dr. Kristopher Wells [00:21:04] Um, you could take nothing for granted. You could never be assured of your safety, your employment, or even the recognition of your relationships. But, you know, I think one of the greatest costs was, uh, within ourselves. Th— Just the… the fight to overcome, you know, internalized shame and the internalized homophobia and the stigma that was still surrounding so many people’s perceptions or understandings of the, you know, lesbian, gay, and bisexual community.

Darrin [00:21:35] The Alberta government refused to include sexual orientation as a protected ground against discrimination in its human rights legislation, which was then called the Individual Rights Protection Act. So it remained up to the community to take up this cause to sue the Alberta government under the Charter for an order requiring it to include protection against sexual orientation discrimination.

Frank [00:21:59] I don’t wanna leave the subject with an impression that it was just courts who were the only agents for change. This is not the case. There were most important aspects. The gay membership of those communities was crucially important. They’re the ones that decided whether they would take cases to the courts. They were the ones that articulated why they should be recognized as equally entitled to the protection of the Charter. They’re the ones who were the clients of the lawyers. And they’re the ones that I think, sort of, looked at it in a… very much an incremental way, which I thought seeing it unfold over the decades, it was very strategic. They looked at the right to work. Why should someone be deprived of work because of his or her sexual orientation?

Dr. Kristopher Wells [00:23:01] Wel-well, before Vriend, we can go back to the LGBTQ Purge that came in the, you know, the 1950s and ‘60s where, uh, LGBTQ people were driven out of the military, police, any level of government. And that happened, you know, here in Alberta as well as across, uh, Canada. And that continued on right until the 1990s, until Vriend basically said, right, “This discrimination is illegal and it needs to stop.” But here in Edmonton when we— We can think about Vriend and the community response as being sort of like a version of Alberta Stonewall, where the community galvanized and fought back. And that had started, uh, here in Edmonton.

Delwin’s case was a long time coming because groups like, um… GATE: Gay Alliance Towards Equality, GALA: Gay and Lesbian Awareness Association, the Metropolitan Community Church (MCC), Dignity Edmonton, these LGBT community groups all had been fighting for basic inclusion on the grounds of sexual orientation into Alberta’s human rights legislation for a long period of time. And then when Vriend’s case came forward, they were ready. The community was ready. And, um, uh… so there was—

By the time you got to the Supreme Court of Canada, there were no guarantees as to which way this was going to go. And I think, uh, that’s another reason why this was so significant of a decision. A decision that just wouldn’t change the landscape of Alberta, but would, uh, shake and change the very foundations of Canada.

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Darrin [00:24:52] On the next episode of Vriend Versus Alberta.

Delwin Vriend [00:24:57] The King’s College had zero written, or even communicated policy, on homosexuality.

Melanie Humphreys [00:25:04] I think what there was, was an expectation that everybody that served at King’s would agree with a traditional understanding of marriage.

Delwin [00:25:13] And that Monday morning, the article comes out, and my name’s in it, of course, and so was the [laughing] King’s College. Now they really had to deal with it because now they were in the public.

Michael [00:25:21] The college board and president demanded that he, um, resign.

Joachim Segger [00:25:27] And it’s sort of shocking that we ended up firing Delwin, which was wrong. It was just simply wrong to fire him.

Murray Billett [00:25:35] And I’m going, you know, I’m a union guy. Like, what the hell’s going on with that? Why? How can… how can they do that?

Michael [00:25:41] It was another thing that very quickly, people organized around and said, “Alright, what can we do?”

Murray [00:25:46] And for them to fire him simply for being gay, it just didn’t sit well with this old Prairie Fairy.

Melanie [00:25:53] It became very apparent to me at the beginning of my presidency that there was a deep hurt.

Murray [00:25:59] What this case did… it kind of lit the fire under the backsides of a lot of people because of the injustice of what happened.

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Andrew [00:26:09] This episode of Vriend Versus Alberta is produced by Edmonton Community Foundation and the Edmonton Queer History Project. It was written, directed, and hosted by Darrin Hagen. It was edited and chase produced by Andrew Paul. In this episode, you heard the voices of the Honourable Frank Iacobucci, Doug Elliott, Michael Phair, Dr. Kristopher Wells, Julie Lloyd, Senator Paula Simons, Doug Stollery, Delwin Vriend, Melanie Humphreys, and Joachim Segger.

Special thanks to Doug Stollery, Cambridge LLP, Torys LLP, Cindy Davis, the Edmonton Public Schools Archives and Museum, the King’s University, and Glass Bookshop. The music in Vriend Versus Alberta is written, composed, and recorded by Darrin Hagen. Many thanks to our sound operators Ariana Brophy, David Gallinger, and Andrew Paul. We’d also like to thank our production assistants, Cara Paul, JoAnne Pierce, and Graeme Lummer.

You can learn more about Edmonton Community Foundation at ecfoundation.org, and check out more queer history by visiting the Edmonton Queer History Project at EdmontonQueerHistoryProject.ca.