Vriend Versus Alberta Part 5: One Last Shot

The Supreme Court of Canada granted Delwin Vriend’s legal team the leave to appeal Justice McClung’s ruling in the Alberta Court of Appeal. As the team arrived in Ottawa, the excitement and tension was palpable. It was their last shot to compel the Government of Alberta to include “sexual orientation” as  protected ground in the Province’s human rights legislation.

In this episode, we take a deep dive into Sheila Greckol’s opening argument and visit a few of the submissions from the many interveners who spoke in support of Delwin’s case.

This would conclude the first half of the hearing before the Government of Alberta took the stand to argue its defense.

 Welcome to episode 5 of Vriend Versus Alberta.

*NOTE: 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 here.

Vriend Versus Alberta is produced by Edmonton Community Foundation and the Edmonton Queer History Project.

Archival audio of Delwin Vriend, et al. v. Her Majesty the Queen in Right of Alberta, et al was used with permission from the Supreme Court of Canada.

Read the Supreme Court’s ruling on Vriend v. Alberta.
Watch Senator Paula Simon’s speech in the Red Chamber about Vriend v. Alberta.
Learn more about Vriend v. Alberta from the Alberta Labour History Institute.
Learn more about Vriend v. Alberta  on the University of Alberta’s Bridging Connections podcast.

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EPISODE IMAGE: Sheila Greckol recounts her experience delivering her opening argument at the Supreme Court of Canada. CREDIT: Edmonton Community Foundation

Transcripts by Karli Drew.


[The Well Endowed Podcast theme music plays]

Andrew Paul [00:00:10] Hello, and welcome to The Well Endowed Podcast. I’m Andrew Paul.

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 every 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 Vriend Versus Alberta, a special podcast series about the groundbreaking Supreme Court ruling that paved the way for equality for Canada’s 2SLGBTQI+ community. 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.

[transition music plays behind episode preview]

Murray Billett [00:01:02] But the most heartbreaking and gut wrenching part of going into the Supreme Court was religious pamphlets on every damn seat.

Doug Elliottt [00:01:13] We didn’t know exactly how it was going to turn out.

Murray [00:01:17] For many of them, it was their first time at the Supreme Court of Canada.

Julie Lloyd [00:01:21] My partner gave me [laughing] a new pair of boxer shorts. So we agreed that these would be my Supreme Court boxer shorts.

Sheila Greckol [00:01:28] And as nervous as you might feel, um, you just have to go in there and, you know— It’s a very intimidating experience.

Doug Stollery [00:01:36] And so she was able to get straight through her argument. She did a [emphasized] brilliant job.

Doug E [00:01:42] I’m kind of getting goosebumps just remembering it, actually.

Murray [00:01:46] It was so moving. The tears would not stop.

Sheila [00:01:51] When he spoke, you could have heard a pin drop.

Murray [00:01:53] We had surrounded ourselves with a talented team of professional lawyers that picked this case up and collectively put it on the Supreme Court bench and said to not include sexual orientation is simply un-Canadian.

[additional transition music plays]

Darrin Hagen [00:02:16] Welcome to episode five of Vriend Versus Alberta. This series is produced by the Edmonton Community Foundation and the Edmonton Queer History Project. I’m your host, Darrin Hagen.

Canada’s highest court had granted leave to appeal the disappointing decision of the Alberta Court of Appeal, which had upheld the Alberta government’s refusal to legislate protections against sexual orientation discrimination. This was a pivotal moment… not only for the legal team fighting for justice for Delwin, but for all queer Canadians. It was also their last shot. There were no more options after this. Nothing less than a total victory would compel the Alberta government to drop its battle against the rights of its queer population and evolve alongside the rest of the provinces.

There had been a case involving gay rights that had been brought before the Supreme Court previously. A mere three years prior, the case of Egan v Canada had considered the failure by the federal government to extend the same old age security benefits to same-sex couples as to opposite sex couples.

In that case, the Court had found that the Charter of Rights and Freedoms should be interpreted to prohibit discrimination on the basis of sexual orientation by governments and government actors. Egan created an important precedent. It determined that sexual orientation was, in fact, a prohibited ground of discrimination under the Charter. It was this first important step that would allow for Delwin’s case to proceed.

But even as it established that precedent, the Egan case had ultimately been another crushing blow for the queer community on its long road to equality. A majority of the Court had decided that excluding same-sex couples from old age security benefits was either not discriminatory, or could be justified under the Charter. The challenges were more than apparent, but the winds of change were allowing a whisper of hope as the team flew to Ottawa in November of 1997.

Murray Billett was on that plane with them and recalls the excitement and tension of the moment.

[additional transition music plays]

Murray Billett [00:04:15] So there was tremendous anticipation. There was… tremendous nervousness. So we get to Ottawa and, uh, I can tell you that… our legal team— And there were, I think, around 15 lawyers. Many of them stayed up a good part of the night to prepare for that particular case. For many of them, the biggest case of their lives as well. For many of them, it was their first time at the Supreme Court of Canada. And for-for the little Prairie Fairy from Moose Jaw to go to Ottawa and see the Supreme Court of Canada, I’m expecting this huge building, and it wasn’t. You know, the courtroom isn’t much bigger than this room, maybe a little bit bigger than this room.

But the most… heartbreaking and gut-wrenching part of-of going into the Supreme Court was… religious pamphlets on every damn seat. I mean, the— these people have no respect for the… for the highest court of the land. So I went around and picked them all up, you know, [laughs] and, uh, stuffed them in my pocket. But, uh… before I went in— because I-I’m moved to tears pretty easily. I’ve almost been a pretty emotional guy and wear my heart on my sleeve, and I knew it was gonna be tough. So did I bring tissues? No, I didn’t. So I dash into the bathroom and I grab the toilet paper and I grab a whole bunch and I stuff it into my suit jacket pocket.

Julie Lloyd [00:05:48] You know what I remember is… I remember that my partner gave me [laughing] a new pair of boxer shorts. So we agreed that these would be my Supreme Court boxer shorts, and so I had my Supreme Court boxer shorts on. And so what I remember about th-the trip there was just a delicious sense of excitement, again, that I was going to the Supreme Court. I was a brand new lawyer, so that was deeply exciting, and I was very aware of how… electric this decision was, um, and this case that was about to come before the Court. To a lawyer, the Supreme Court is a church an-and it-it’s a deeply sacred place for me, certainly. So I walked in and yeah, hair stands up in the back of my neck. Still does.

Darrin [00:06:32] That was the voice of Julie Lloyd, who was then one of the small group of openly gay lawyers in Alberta. She was one of the lawyers representing the Canadian Bar Association, one of the many passionate interveners who were speaking in support of the Vriend team.

The role of interveners is to bring supplemental support to the main argument, providing additional context or examples that bolster the case. They generally represent groups who have a stake in the outcome. Interveners play a key role in assisting the Supreme Court justices in making their decision. While there were 4 interveners speaking in support of the Alberta government’s position, there were an impressive 12 interveners speaking on behalf of equality.

Jo-Ann Kolmes, who was a partner in Sheila Greckol’s firm, was also present in the halls of justice that day. Although she wouldn’t be speaking, many of the words being presented were hers, the result of research and advocacy and coordinating preparation of factums.

Jo-Ann Kolmes [00:07:28] The first phase… relates to the submissions made by Sheila on behalf of Delwin and the groups. And then the submissions by the interveners, the lawyers for the interveners, in support of Delwin and the groups who are the appellants. And the second phase… is when the lawyer, or one of— or a lawyer for the Government of Alberta, is presenting the submissions on behalf of the Government of Alberta and when the interveners in support of the government’s position are presenting. And so, Sheila Greckol’s submissions to the Court were… so important.

Darrin [00:08:13] The Vriend team’s argument zeroed in on the Charter of Rights and Freedoms. The Charter regulates government action. Under the Charter, as interpreted in the Egan case, a government cannot pass legislation that discriminates against people on the basis of their sexual orientation. But in Alberta, the government had passed its own act, the Individual’s Rights Protection Act or IRPA. This legislation regulated discrimination not by government, but by people and businesses. The IRPA specifically listed several prohibited grounds of discrimination. Grounds such as age, sex, and race. However, on the issue of discrimination based on sexual orientation, the act was silent.

The result of this was that anyone, whether queer or straight, trans or cis, had a legal remedy available if they were discriminated against under any of the categories on that list. So, if a lesbian was discriminated against because of her age, she would have recourse to file a complaint with the Alberta Human Rights Commission. However, if that same lesbian was discriminated against due to her sexual orientation, she would have no recourse. The Egan decision had solved the problem of sexual orientation not being on the list of protected grounds in the Charter. The stage had been set to make the case for adding sexual orientation to Alberta’s IRPA.

For now, let’s listen to Sheila Greckol as she presents her opening argument. We would like to thank the Supreme Court of Canada for supplying this archival audio.

Chief Justice Lamer (in archival footage) [00:09:43] I guess we start with, uh, Ms.— Ms. Greckol.

Sheila (in archival footage) [00:09:49] Thank you, My Lord. Good morning, My Lords and My Ladies. It is my privilege this morning to represent the appellant, Mr. Vriend and the other groups before this Court in their search for equality. It will be my intention to contain my remarks within 55 minutes. And Mr. Stollery, you will respond on behalf of the appellants.

Sheila [00:10:11] You know, it is like acting in the sense that you put your game show on, and as nervous as you might feel, um, you just have to go in there and you know— It’s a very intimidating experience. And I had been there fortunately a few times before that. I’ll never forget the first time going to the Supreme Court of Canada. They looked like big black birds up on a wire.

Sheila (in archival footage) [00:10:35] And while this case is brought narrowly on the basis of the firing from King’s College, it will be immediately apparent to the Court that the fundamental issue which we bring to you is the entitlement of Mr. Vriend and others in his community to advance a complaint through the Human Rights Commission.

Darrin [00:10:53] By way of setting the scene, Sheila recounted the steps that had brought them all to this moment, clarifying that this case was not just about Delwin Vriend being fired, but about the right of all Albertans to expect and demand equal treatment as provided in the Charter.

She recalled the ways that this particular class of marginalized people were excluded from full participation in Canadian society, and reminded the Court that the case was about the relationship between the Charter and the human rights legislation that we are all bound by.

Sheila (in archival footage) [00:11:24] First, this case narrowly concerns the firing of Mr. Vriend from a Christian college in the province of Alberta. However, it also concerns the entitlement to full personhood for gays and lesbians in the province of Alberta. The freedom to secure, or absence of restraint from securing, the basic needs of life: food, accommodation, work, dignity, and respect. Securing this freedom through equal application of the law in our submission goes to the very heart of equality rights in the Charter. This case then involves the relationship between the Charter and the human rights legislation upon which we depend for our freedoms in our community.

Darrin [00:12:05] Then Sheila walked the Court through the sequence of events that had led to the firing of Delwin Vriend, and specifically what had occurred when he attempted to get some justice. She recalled the fact that Delwin’s sexual orientation was known for a full year before he was asked to resign, and that upon his refusal he was fired… and that, in Alberta, there was no way to challenge that particular brand of discrimination. This meant that Delwin was being forced to fight for himself. He was fighting because his very personhood was under attack.

Sheila (in archival footage) [00:12:36] One is immediately struck by the fact that Mr. Vriend must, in essence, go to bat for himself in his employment setting over what this Court has described as his “personhood.” A characteristic fundamental to his personhood. He was, in essence, asked by his employer to deny what Mr. Justice La Forest called in Egan, “a deeply personal characteristic, which is either unchangeable or changeable only at unacceptable personal cost.” For any of us in the courtroom on any ground, and as women of my generation well-know, to explain that we are “as good as” despite the characteristic that is questioned is profoundly humiliating. But none of us who sometimes face that discrimination, and as the cases indicate often we or we all do at some point in our lives, none of us is asked to pretend that we are not what we are. In a word: to deny ourselves.

Darrin [00:13:37] Another crucial element in Sheila’s argument was the history of discrimination based on sexual orientation. Remember, in the original decision in the Court of Queen’s bench, Justice Russell had pointed out that she didn’t even need proof of the presence of this form of discrimination in Alberta because it was so apparent. Alberta’s record of anti-queer policy was not going to work in its favour. Sheila illuminated the context of the slow road towards acceptance and inclusion for Canada’s population of queer people. She spoke about the discrimination that our community had historically faced. From verbal abuse all the way to the denial of fundamental human rights, and pointed out that the Egan decision had confirmed that view.

Sheila (in archival footage) [00:14:22] Two [inaudible], on the other end, circumstances such as are described in tab 48 of our material, uh. The case the Court may be familiar with, the Queen and Venner, where a construction worker was viewed by his coworkers as a “queer” and a “fag”, and as a consequence taken for a ride, which they described as one he would never forget. And during the course of which he was kicked to death by steel toed construction boots. And I pause at this moment just to recount these facts and talk about the breadth of the discrimination. Not because the Court doesn’t have an understanding as evidenced in Egan, but because it’s important, it seems to me, to have those observations and issues at the forefront of our minds in considering the rights at stake in this case.

The fact that I would ask this Court to consider in reviewing this material is in encapsulated by the comments of Mr. Justice Cory in Egan that such stigmatization and hatred has forced gays and lesbians to conceal their identity, with the associated costs in the workplace, in the community, and in their private lives. It is submitted that this feature of discrimination against gays and lesbians is singular amongst the grounds, and singularly compelling when we consider in Alberta that every minute of every day, and many minutes of that day, gays and lesbians must consider the dangers of showing who they really are… and weigh the risks of losing a family, a friend, a job, a status, or face the prospect even of mental or physical violation of their person. As shown in the materials filed, such loathing and such fear is a burden, which at times and for some becomes too great to bear.

Darrin [00:16:07] Having set out the context, Sheila then moved forward with her argument that the exclusion of sexual orientation from the IRPA offended the equality rights guaranteed under Section 15 (1) of the Charter. There were three important steps to this argument. The first step was to show that the IRPA drew a distinction either between gay people and other disadvantaged groups in our society, or between straight people and gay people.

Sheila (in archival footage) [00:16:35] The question then becomes that the claimant must show there is a distinction between the claimant and others. It is submitted on the basis of those remarks just made that it’s clear there is a distinction drawn between the claimants who are joined together by this deep and profound personal characteristic and other groups similarly historically disadvantaged and bound together by a personal characteristic. But there is also a distinction drawn, we submit in this case, and by the exclusion between heterosexuals and homosexuals, in that the impact of the exclusion is felt only by people within the homosexual and lesbian community. And that’s because, as was mentioned in the American Supreme Court decision of Romer and Evans, the group heterosexuals also defined by the characteristic sexual orientation do not need the protections.

Darrin [00:17:41] The second step was to show that this distinction was discriminatory, either in its purpose or in its effect.

Sheila (in archival footage) [00:17:49] First, as I’ve already argued, the government’s purpose for the exclusion is shown by the legislative history to be discriminatory. The denial of discrimination by the language, few complaints, a castigation of the group as unworthy by— According to it, the epithet marginal. A denial that the IRPA can be of assistance to this group, despite the well-known salutary effects of being included within protections of human rights legislation.

Such views, and I emphasize, plus the absence by and failure by the government to advance any rational explanation for the exclusion, show in our submission that the purpose for the exclusion is based on stereotyping. But it is so compelling to consider the discriminatory effects of the exclusion on this group in the province of Alberta that I think it’s important to examine it in any event. We argue that the distinction created by the exclusion imposes burdens and denies benefits.

It imposes burdens first by the impact in— on the individual in terms of self-worth. The individual in that community in Alberta must live with the fact that the government, its own government, has said it’s not worthy of inclusion along with others in the protective provisions in the IRPA. And then to borrow a term used by her Ladyship, Madam Justice L’Heureux-Dubé, it sends a, and I quote, meta message or large important message to the community that this group is not worthy of protections in our fundamental human rights legislation in the province of Alberta.

So it imposes burdens. It has discriminatory effects. It also withholds benefits in this sense. There is a denial in two ways, or a withholding of benefits in two ways. First of all, the way the act is structured, there’s the preamble which provides the glowing and important language about respect. Then there are the remedial provisions typical of human rights legislation, which provide for the filing of complaints and the accessing of remedies. And… it’s apparent then that one of the important discriminatory effects is, as with the case of Mr. Vriend, he was unable, and members of that community are unable, to access the protective and remedial provisions.

Darrin [00:20:36] And finally, the third step was to show that the distinction was on a ground recognized under the Charter. In this case, on the basis of sexual orientation.

Sheila (in archival footage) [00:20:46] So we submit the distinction is shown to be discriminatory. And moving to step two, as set out in Eldridge, the distinction is discriminatory based on a named or analogous grounds as has already been found in the case of Egan of this Court.

Darrin [00:21:04] Having argued that the exclusion of sexual orientation from the IRPA constituted an infringement of the equality rights under the Charter, Sheila moved on to address the pillars of the Alberta government’s defence. It was up to the Government of Alberta to justify that infringement under Section 1 of the Charter by showing that the exclusion was demonstrably justified in a free and democratic society. This is called the Oakes Test, which proceeds in various steps.

First, the Alberta government had to show that either there was a pressing and substantial objective for human rights legislation, or for the exclusion of sexual orientation from that legislation. The former was easy to establish. The latter was much more difficult.

On this point, Sheila reminded the Court that the Crown had called zero evidence to justify this exclusion. She quoted the homophobic language in Justice McClung’s written decision, and pointed out that there was zero proof for the claims he had leaned upon when writing his decision.

Sheila (in archival footage) [00:22:05] I think it’s important to remember that the Crown called no evidence in this case, despite its onus. Um, and also in this case that we draw comfort from the words in the Andrews case that the Oakes Test must be flexibly applied. We submit that the first step involves an examination of the purpose of the law, and whether or not it’s pressing and substantial. On the view that it is the purpose of the IRPA which must be examined, it is submitted that there can be no doubt that it is pressing and substantial. On the view that it is the narrow purpose of the exclusion that must be examined at the first stage of the Section 1 analysis it’s submitted that the government has not and cannot show that there is a pressing and substantial rationale for the exclusion.

The purposes of the exclusion are referred to by Mr. Justice McClung and refuted at pages 22 to 23 of the appellant’s Factum. Objectives are referred to by his Lordship, such as morality, religion, weakening of family values, spreading of AIDS, apparent behaviour. We submit none of these objectives have been proved or indeed were argued by the respondents in the Court of Appeal. And if they were, we would suggest that those kinds of objectives bespeak an effort to continue to marginalize the group at issue.

Darrin [00:23:31] Next, the government had to demonstrate that there was a rational connection between the purpose of IRPA and the exclusion of gays and lesbians from IRPA. The purpose of IRPA is the recognition and protection of the inherent dignity and inalienable rights of Albertans through the elimination of discriminatory practices. And yet the government was doing the exact opposite by excluding an identifiable community from the protections. How would the Government of Alberta demonstrate that the way to eliminate discriminatory practices was to indulge in discrimination?

Sheila (in archival footage) [00:24:04] Even since the inception of this case, there has been no effort whatsoever by the government to respond to the calls for inclusion. It can no longer be said that time is required for legislative response, much as I believe was the case in the case of Miron. There are no financial implications shown by the government, and there is no impact on other statutes demonstrated by the government in this case.

Darrin [00:24:30] Next, the government had to demonstrate that in seeking to achieve its objective, it had done so in a way that minimally impaired the Charter rights of Alberta’s queer population.

Sheila (in archival footage) [00:24:42] Secondly, moving to minimum impairment. Again, we suggest no efforts have been made in this case by the government to tailor the limiting measure so as to bring this case into the class of cases like McKinney and Edwards Books. We rely on the views of Madam Justice McLachlin in RJR-MacDonald that deference cannot be used as a reason for the courts to abdicate Charter responsibility. And as well, the views espoused in Eldridge that deference is not to be accorded merely because the issue is one of those social issues with which the provincial government is concerned. Again, and I emphasize, there has been no effort by the government to look at the issue and try to minimally impair the rights of the group at issue here. It is an absolute denial of rights. This, in spite of the work of its own commission through the years to elucidate upon the discrimination and bring the government to act.

Darrin [00:25:43] Lastly, the Government of Alberta had to show that the positive benefits of exclusion outweighed the negative impact of infringement of Charter rights. It was apparent that the exclusion of an entire section of the population had zero redeeming effects. In fact, many studies, and history itself, had established that failing to provide human rights protection had the effect of further marginalizing groups that were already suffering from the impact of discrimination.

Sheila (in archival footage) [00:26:12] The analysis shows here an omnibus human rights legislation providing protection to disadvantaged groups with the willful exclusion of one, which has the impact or effect of further marginalizing that group. Of perpetuating the discrimination. Of sending the message to the community that this group, these people, are not worthy of government protection.

Darrin [00:26:37] Now Sheila headed into her closing argument on remedy. Remember, if the legislation is unconstitutional, the typical remedy is that it will be struck down unless the government corrects that defect within a certain time period. In this case, if the Alberta government didn’t add sexual orientation as a protected ground under IRPA within the time period, then the entire IRPA would be struck down, leaving the province with no human rights legislation at all. Sheila and her team argued for a different remedy called reading in, which would have the Court itself amend the legislation rather than waiting for the government to do so.

Sheila (in archival footage) [00:27:15] We argue that the guiding principles both to ensure respect for the role of the legislature and to ensure the purposes of the Charter are observed lead inexorably to the conclusion that reading in should obtain in this case. I suggest that it would be… it would be fundamentally wrong to strike down and deny members of all disadvantaged groups and thereby thwart both the purposes of the Charter and the IRPA when the remedy of reading in is readily available. It’s a narrow, it’s a precise, and I suggest perfectly apt remedy in this case.

Darrin [00:27:50] In under an hour, Sheila had delivered the submission that her team had spent months crafting. By the time she was finished, there was a tangible shift in the atmosphere in the Supreme Court. Things were proceeding very differently than they had when they had argued in the Alberta Court of Appeal. Her co-counsel, Doug Stollery, recalls how different the mood in the room was when compared to their appearance in front of Justice McClung. For instance, this time no judges disrespectfully turned their backs on the team as the argument was presented.

Doug Stollery [00:28:21] We had faced obviously a very difficult hearing at the Court of Appeal, and th-the mood in the Supreme Court of Canada was completely the opposite. The nine judges hearing the case sat and listened intently to what Sheila had to say, uh, but they weren’t interjecting with… with questions. And so she was able to get straight through her argument. She did a [emphasized] brilliant job.

Sheila [00:28:47] I think we settled down. They were so kind and so polite and so, you know— They were so genteel, in a way, and they were listening attentively. There was not a crossword, there was not a… sort of mean, low ball question. Nobody was turning their backs on us. So it was actually something, you know— something I think— I think I enjoyed the experience so much because they were, I think, respecting us. They were respectful of us.

Darrin [00:29:17] Once Sheila Greckol had presented their case, it was time for the many interveners to deliver their submissions in support of Vriend. There were a total of 17 interveners speaking that day, all focusing on specific elements and issues that added nuance and additional context to the main argument.

One of the lawyers representing one of the interveners was Doug Elliott, speaking on behalf of the Canadian AIDS Society.

Doug Elliott [00:29:40] I was very excited. My parents had actually come to watch the argument. It was the first time that my parents had been to watch me in the Supreme Court of Canada. Uh, but we knew there was a lot of riding on it. We really wanted to win. We didn’t know exactly how it was going to turn out, but there certainly was a profound sense that this was a historic case. That it was a kind of case that was going to be read by law students for decades thereafter.

Chief Justice Lamer (in archival footage) [00:30:12] Elliott.

Doug E (in archival footage) [00:30:15] Good afternoon, Chief Justice, My Lords and Ladies.
As you know, I represent the Canadian AIDS Society, a national coalition over— of over 100 local organizations fighting AIDS across Canada, including in the province of Alberta. The Canadian AIDS Society supports the ap-appellant on all issues.

Physical disability is covered under the IRPA, and one might wonder in those circumstances why the Canadian AIDS Society takes an interest in this appeal. The reality of the AIDS epidemic in this country is that the majority of the cases have been, and continue to be, among gay men. As a result, the AIDS epidemic has an intersection with homophobia in this country. As Justice Coultas noted in the Brown case, which is found in tab two of my Brief of Authorities, the form and content of discrimination against gays is uglier and the cry more shrill since the onset of AIDS.

Darrin [00:31:24] Elliott argued that in the battle against AIDS, promoting and protecting human rights was crucial. In a world where a human being could feel safe from discrimination in regards to sexual orientation, that person is more likely to seek out testing and treatment and counselling. The battle against this global health catastrophe was always made worse when homophobia intersected with AIDS.

As Doug Elliott spoke, he was keenly aware of how this case would affect his own future as a queer Canadian.

Doug E [00:31:54] Well, I mean, we are supposed to maintain a level of professional detachment when we argue a case, but there can’t be any doubt that… when I was arguing cases affecting the LGBT community, I was very conscious of the fact that I’m a member of the LGBT community. That this case is important to me personally. I mean, I made no bones about that in front of the Supreme Court of Canada as well. They all knew that I was gay. And when I talked about the LGBT community, I didn’t say “they.” I said “we.”

Doug E (in archival footage) [00:32:33] Finally on remedy. In my respectful submission, the approach that should be taken in a case like this is the approach that was taken in the Haig case. Now, in the Haig case, Justice Krever was faced with a situation where the government had promised to bring in the appropriate amendment, and that encouraged him. This is simply the flip side of that situation, My Lords and Ladies. There is no hope for the gays and lesbians of Alberta unless this Court interferes.

Unknow voice (in archival footage) [00:33:05] In Haig, did they read-in sexual orientation generally into the Code or—

Doug E (in archival footage) [00:33:10] Yes, that’s what they did. And it was encouraged by the fact there had been repeated statements by the federal government that they were going to get around to doing it. But in this case, I say it’s just the reverse situation. That, in fact, this government will never get around to doing it. And protection from discrimination will never exist unless this Court leads the way.

Darrin [00:33:34] There were many more interveners scheduled, each addressing a different aspect of the case.

Cynthia Petersen was speaking for EGALE, the national organization fighting to advance equality for the gay and lesbian community. Cynthia reiterated the fact that the Government of Alberta’s exclusion of sexual orientation was, in fact, a deliberate act of discrimination.

Dale Gibson was intervening on behalf of the Alberta Northwest Conference of the United Church of Canada, the country’s largest Protestant church. His submission shattered the monolithic concept of religion being essentially anti-gay by shining a spotlight on the diversity within the Christian community, demonstrating eloquently that there is no one overarching view about the queer and trans community within Christianity.

Dale Gibson (in archival footage) [00:34:20] My submission is that… remember, we’re try— We’re talking here about what is a reasonable limit in a free and democratic society. That is— It is absolutely unreasonable for a government to attempt to oppose religious beliefs on the one hand, and protection against discrimination on the other. First question is, whose religious beliefs? Not the religious beliefs of my clients… who, uh, represent the largest Protestant church in this country. Not the religious beliefs of many other groups. Yes, the religious beliefs of some. But it is not the role of government, I submit, to be adopting the religious beliefs of a particular group, or groups, of religion and opposing those to state protection against discrimination. Indeed, our position would be that this absence from the statute doesn’t so much respect religious values as it does violate the religious beliefs of those who hold beliefs different than the one that underlies the omission.

Darrin [00:35:37] The last of the interveners speaking in support of Delvin Vriend was Lyle Kanee. Kanee was a partner in Sheila Greckol’s firm and had worked closely with the members of Vriend’s legal team on the main presentation. But his contribution that day was as intervener on behalf of the Canadian Jewish Congress. Without exception, the stories from the many people in the room that day recall his presentation as one of the more moving moments in an intense and inspiring day.

Lyle Kanee [00:36:02] I-I was nervous, for sure. And I was nervous not because I hadn’t been in a courtroom before, but I felt the weight of, as I say, the responsibility of bringing the message of the Canadian Jewish Congress. And essentially what we were doing was we were telling the Court that discrimination has a— it’s a slippery slope.

Lyle (in archival footage) [00:36:26] Canadian Jewish Congress is here today in support of the appellants because this case involves fundamental issues of human rights for gays and lesbians, for all minorities, and for all Canadians. The Jewish community uniquely appreciates the importance of being vigilant in the fight against racism and all forms of discrimination, and recognizes that it has an obligation to object wherever discrimination exists. Congress owes this obligation to be vigilant to, among others, the memory of the 6 million Jews who perished during the Holocaust, as well as the thousands of Righteous Gentiles who risked or sacrificed their lives to save members of the Jewish community from persecution.

Congress does not invoke the memory of the Holocaust in a casual or alarmist way. However, one of the important lessons to be learned from that bleak period of history is that the first laws passed by the Nazi regime did not call for the annihilation of the Jewish community of Europe. The first laws simply stripped Jews of their rights to accommodation and employment. It was hoped that by stripping Jews of these fundamental rights, Jews would emigrate from Germany, and the country would rid itself of its Jewish problem.

This case also addresses fundamental rights, such as the right to accommodation and employment. Here, in its most charitable characterization, Alberta has chosen not to intervene when its citizens strip gays and lesbians of their right to accommodation and employment strictly on the basis of their sexual orientation.

Lyle [00:38:11] And what happened in Nazi Germany was that the court was complicit. And I was urging this Court not to be complicit and to intervene, to promote equality and to protect the rights of gays and lesbians. And that’s a pretty bold thing to do your first time at the Supreme Court. And so, first of all, I think it’s very kind of others to say that they were moved by our presentation.

Sheila [00:38:41] When he spoke, you could have heard a pin drop and I think there wasn’t a dry eye in the place. And it was cathartic.

Jo-Ann [00:38:49] I was in tears. I know others were as well. It was a very moving, emotional, uh— The commitment to equality rights. The description of the harm.

Murray [00:39:01] It was so moving. The tears would not stop. So I reach into my pocket to… to grab some of my toilet paper and I look and there’s— Delwin’s crying. And so now my toilet paper is getting handed down the aisle like this. It was… it was that emotional.

Doug E [00:39:18] The quality of the advocacy was about the best I had ever seen in my life up to that point.

Doug S [00:39:24] And it was a very… powerful argument. It was also the last argument on behalf of the interveners. And immediately before the counsel for the Government of Alberta had to start his argument.

Murray [00:39:41] We had surrounded ourselves with a compelling, significant, talented team of professional lawyers that literally picked this case up and collectively put it on the Supreme Court bench and said, “This is the reality, and to not include sexual orientation is simply un-Canadian. It is the right thing to do. It is the right time to do it. It’s gotta be done.”

Darrin [00:40:09] On the next episode of Vriend Versus Alberta, the Alberta government finally speaks to why it wants to continue to discriminate against its queer population. And then, a last minute shift in the Court’s schedule turns what should have been a routine lunch hour into an intense flurry of frenzied preparation.

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Doug S [00:40:26] And of course, this was Delwin’s case, really, on behalf of the entire LGBTQ community.

Sheila [00:40:32] What Justice McLachlin famously said, “you mean in order to get protection as individuals, they have to get AIDS.”

Murray [00:40:38] You could have heard a pin drop.

Doug S [00:40:40] We felt that we had a very solid case. The [laughing] real question was, could we persuade the judges?

Julie [00:40:48] Um, a lot of the emotional dust didn’t settle for days after that.

Sheila [00:40:51] He was not a constitutional lawyer. So in my view, he was out of his depth.

Doug S [00:40:55] I felt it hard not to cry… ‘cause I was thinking, “This is my life that we’re talking about.”

Sheila [00:41:02] I felt we were on the side of justice. And it’s a palpable feeling, actually. It just penetrates your heart and your soul.

Julie [00:41:09] A lot of meaningful conversation. I think we were all kind of like wet dish rags at the end of that, really.

Murray [00:41:16] And again, you don’t know what the end result’s gonna be ‘cause you gotta wait a long time to get the… get the decision.

Doug S [00:41:20] But within 20 days after the case, Justice Sopinka, the what— the person we viewed as the swing vote on the Court, passed away, tragically.

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Andrew [00:41:32] 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 Murray Billett, Doug Elliott, Julie Lloyd, Sheila Greckol, Doug Stollery, Jo-Ann Kolmes, Justice Lamer, Lyle Kanee and Dale Gibson.

Archival audio of Delwin Vriend, et al. v. Her Majesty the Queen in Right of Alberta, et al. was used with permission from the Supreme Court of Canada.

The music in Vriend Versus Alberta is written, composed, and recorded by Darrin Hagen. Many thanks to our sound operators: Arianna Brophy, David Gallinger, and Andrew Paul. We would also like to thank our production assistants: JoAnne Pierce, Cara Paul and Graeme Lummer.

Special thanks to Doug Stollery, Cindy Davis, Edmonton Public Schools Archives and Museum, Cambridge LLP, and Goldblatt Partners LLP.

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

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