[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]

Doug Stollery [00:01:04] The Alberta government never really framed an argument about why allowing discrimination, uh, was okay.

John McCarthy (in archival footage) [00:01:14] Our submission that human rights legislation and the Charter were designed to achieve different purposes.

Justice Cory (in archival footage) [00:01:20] But if it’s the very homosexuality which leads to the problem, how did they get before the tribunal?

Justice Beverley McLachlin (in archival footage) [00:01:27] Have to get AIDS to get protection.

Doug S [00:01:30] I came in with-with no preparation.

Sheila Greckol [00:01:32] We had the law on our side.

Doug S [00:01:35] Uh, I had a, you know, handwritten presentation with, I think, a little bit of mustard on it.

Sheila [00:01:40] We had the, I would say, public support on the issue.

Doug S [00:01:44] When the case finished, we had a reasonable sense that we might have been successful in convincing, uh, Justice Sopinka.

Sheila [00:01:51] I believe that we left very optimistic.

Doug S [00:01:54] And 20 days after the case was heard, he died.

[additional transition music plays]

Darrin Hagen [00:02:06] Welcome to episode six 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.

In the previous episode, we took a deep dive into Sheila Greckol’s opening arguments at the Supreme Court of Canada, and we heard from a few of the interveners who spoke in support of Delvin Vriend’s case against the Government of Alberta. The equality of countless Canadians was riding on what happened that day in the highest court in the nation. Things seemed to be going well, but the lawyers for the Alberta government hadn’t delivered their arguments yet.

Doug Stollery was co-counsel with Sheila Greckol, and he was listening intently to everything, analyzing what was being presented because he was scheduled to deliver the closing arguments in support of Delwin’s case at the end of the hearing. Originally, the hearing was scheduled to run over the course of two days, but just as the midday lunch break was announced on day one, Justice Lamer made a bombshell announcement, which meant the lunch break would be anything but leisurely.

Here’s Doug Stollery recounting the moment.

[additional transition music plays]

Doug S [00:03:09] Okay, so, the schedule was supposed to be that, uh, Sheila would present our case-in-chief. That sh-she would open up the appeal. After Sheila, then all of the interveners who were supporting us would speak. Then they were to have only five minutes each. And then there was— the counsel for the Government of Alberta was to present their argument. And then the lawyers for each of their interveners were to present their arguments. And then I was to close, doing the rebuttal to the arguments that had been made by the government and by their interveners. And the case had been set for… two days.

So, in preparing the case, we worked very hard on what Sheila was to say because she was right outta the gate. Uh, but we thought, strategically it would be a good idea not to prepare my argument in advance because it was to reply to what the government had said. And we knew that because it was two days, and we knew that I would be on the second day, that we would have the entire evening in between to prepare. So… I came in with… with no preparation, but again, thinking that evening we would work hard and come up with something. And at the lunch hour, Chief Justice said, “seem to be making decent time. I’ve decided we’ll… we’ll do the case in one day.”

Chief Justice Antonio Lamer (in archival footage) [00:04:33] I wanted to tell you that, uh, my calculations here indicate that we should be finished soon if everybody stays within their time limits. Somewhere around 4:35. I say this for the benefit of those who have either hotel reservations or plane reservations that must be modified. And so that you know that we intend to try to finish this case today.

Darrin [00:04:57] But prior to Doug rising to present his closing arguments, the Government of Alberta finally had its turn to deliver its argument in defense of continuing to leave queer Albertans out of the Individual’s Rights Protection Act, or the IRPA, its human rights legislation.

The lead counsel for the Government of Alberta was John McCarthy. He began his argument by stating that the Government of Alberta supported the decision of the Alberta Court of Appeal to overturn Justice Russell’s ruling in the Court of Queen’s Bench. Remember, Justice Russell had ruled that sexual orientation should be read into Alberta’s human rights legislation. McCarthy then stated that the Charter of Rights and Freedoms is a document that has always been directed at regulating government’s legislation and actions, not private activity of individuals, which is correct.

Here is John McCarthy in the Supreme Court of Canada.

John McCarthy (in archival footage) [00:05:53] It is therefore Alberta’s position that the Court should not substitute its view— own view for that of elected legislators as to what grounds ought to be protected in human rights legislation. The role of elected legislators is to determine what laws to pass. The role of the judiciary is to ensure that laws which are passed are in compliance with the Constitution. The Constitution has not delegated any powers of elected legislators to the judiciary. One of the essential characteristics of government in Canada is that it is a responsible government. This means… that… those who make laws are ultimately responsible to those who elect them.

Darrin [00:06:42] Those familiar with Alberta politics over the decades may recognize a familiar refrain of “Let Alberta decide what’s best for Alberta.” This prompted the first of what would be many probing questions from the Supreme Court justices, including Justice John C. Major. Justice Major wanted to know that if it was solely up to the provincial legislature to create and oversee its human rights legislation, did that mean that a provincial government could exclude people from the legislation?

Justice John C. Major (in archival footage) [00:07:12] But having enacted one, can they leave people out of it?

[brief pause before response]

John McCarthy (in archival footage) [00:07:17] Our submission is that the— having an enacted a human rights, uh, statute, as have all other jurisdictions in Canada, uh… those jurisdictions, including Alberta— the legislatures of those jurisdictions have had in the past, and should rightly have in the future, the proper authority, the legislative authority to, uh… include whatever grounds they deem appropriate. The grounds are many and varied… throughout Canada.

Justice Major (in archival footage) [00:07:58] Can they pick and choose who’s going to be covered?

[brief pause before response]

John McCarthy (in archival footage) [00:08:02] Uh, they can pick and choose… uh, the grounds to be covered, provided there is no… legislative distinction.

Darrin [00:08:13] This compelled Justice Peter Cory to jump into the exchange.

[momentary inaudible, overlapping voices]

Justice Peter Cory (in archival footage) [00:08:18] Mr. McCarthy, on that basis, could you, for example, exclude nationality as a ground, leave race in, but exclude nationality so that, for instance, in employment, national origin could be a basis for hiring, or not hiring, or dismissing?

Darrin [00:08:43] McCarthy drew a parallel between nationality and citizenship, and argued that the IRPA provides protections to all persons on those grounds listed in the Act without distinction based on other grounds not listed in the Act, like citizenship and sexual orientation. McCarthy forged ahead, stating that he didn’t see why the Government of Alberta should have to make a list of specific grounds that it wasn’t going to cover under the IRPA. He brought up the examples of certain protected grounds found in the legislation of some other provinces, like political belief, criminal convictions, and irrational fear of disease, and asked whether the failure to include those grounds in the IRPA constituted a distinction in breach of the Charter.

McCarthy and Justice Cory continued the back and forth on this point.

John McCarthy (in archival footage) [00:09:31] And I don’t… [sigh] I don’t see why legislatures have to indicate… by legislation, what they’re not going to legislate about.

Justice Cory (in archival footage) [00:09:46] But does that mean that they— Does it not mean… homosexuals are then denied equal benefit of the law in that they don’t have access to, perhaps, the only tribunal that can remedy the problem for them?

[brief pause before response]

John McCarthy (in archival footage) [00:10:04] They have access to the tribunal the same as anyone else does under the grounds that are covered in the statute.

Darrin [00:10:12] The idea that queer Albertans were still able to access protection through the IRPA, and the Alberta Human Rights Commission, under different grounds was a theme that McCarthy returned to repeatedly as he presented his argument. But the justices were still expressing some skepticism that the Government of Alberta actually understood what the real issue at hand was.

Here’s Justice Cory probing further. Note that the “tribunal” he refers to is the Alberta Human Rights Commission.

Justice Cory (in archival footage) [00:10:41] But if it’s the very homosexuality which leads to the problem, how did they get before the tribunal?

John McCarthy (in archival footage) [00:10:50] As the tribunal stands now, uh, that ground is not included as— similar to political belief, criminal convictions, irrational fear of disease. However, let me give you an example of how, uh, they can access the Act or— My learned friend from the Canadian AIDS Society has just used the example of… of, uh, the physical disability of the HIV/AIDS virus and that, of course, is covered under the Act. He’s indicated that homosexual males, um, in disproportionately large numbers may have that particular physical disability, and if they are discriminated against on the basis of that physical disability, then they can have access to the Act the same as anyone else.

Justice Beverley McLachlin (in archival footage) [00:11:45] Have to get AIDS to get protection.

[widespread laughter in the Court]

John McCarthy (in archival footage) [00:11:49] No. Uh, that’s not… that’s not my point, but there is protection available for those who have AIDS, similarly in the other grounds that are covered.

Darrin [00:12:03] That moment you just heard, the moment when Justice Beverley McLachlin interjected about gay men having to get AIDS in order to receive human rights protection, that’s a moment that was imprinted on the memories of everyone present. It was a moment that characterized the tone of that day in the Supreme Court of Canada. The Supreme Court justices had asked a minimum of questions during Sheila Greckol’s opening argument, but they had many questions for John McCarthy as he worked his way through the government’s submission.

One pressing question was this: if McCarthy was arguing that it was the sole responsibility of the Government of Alberta to decide which grounds were to be protected and which grounds were not to be protected, did that mean that it had the power to [emphasized] remove protected grounds of discrimination? Grounds like race, age, or disability. Grounds that were already included in the IRPA.

Listen to McCarthy and Chief Justice Lamer as they address this issue.

John McCarthy (in archival footage) [00:12:59] Our submission is that this is within… uh… the purview of the legislature to decide what grounds are to be included in, uh— when you’re legislating with respect to private activity, and… you don’t have to set out what grounds you’re not legislating with respect to private activity.

Chief Justice Lamer (in archival footage) [00:13:22] What you’re saying also is that if you can abrogate the Act… if you can abrogate it, you can— you can shrink it.

[brief pause before response]

John McCarthy (in archival footage) [00:13:32] Yes. It’s totally up to the legislature to determine what areas of private equity it wants to legislature—

Chief Justice Lamer (in archival footage) [00:13:39] If you abrogate it, then you can shrink it—

John McCarthy (in archival footage) [00:13:43] Yes—

Chief Justice Lamer (in archival footage) [00:13:43] Or expand it.

John McCarthy (in archival footage) [00:13:44] Or expand it, yes.

Chief Justice Lamer (in archival footage) [00:13:45] That’s the gist of your argument.

John McCarthy (in archival footage) [00:13:46] Yes. It’s totally within the purview of the legislatures.

Darrin [00:13:50] That inspired Justice Charles Gonthier to interject. He asked McCarthy if this was the opinion of the Government of Alberta, did the government feel it could remove any of the other protected grounds already expressly included in the Charter?

Listen closely for a terse clarification from Justice Claire L’Heureux-Dubé at the end.

Justice Charles Gonthier (in archival footage) [00:14:11] Are you, uh— are you arguing that, uh, you could exclude some of the grounds that are specifically stated in Section Fi— uh, 15 such as race, for instance, and that no justification would be required?

John McCarthy (in archival footage) [00:14:25] Well, I refer to you— If I could answer that by quoting Madam Justice L’Heureux-Dubé, uh, in-in— which is set out in Paragraph 14 of my Factum—

Justice Charles Gonthier (in archival footage) [00:14:34] Well, it’s your answer. I’d like hers she can give.

[widespread laughter in the Court]

John McCarthy (in archival footage) [00:14:38] Well, I adopt her answer.

[widespread laughter in the Court]

Justice Claire L’Heureux-Dubé (in archival footage) [00:14:45] I don’t adopt my answer in that context.

[continued laughter]

Darrin [00:14:51] Next, the Government of Alberta argued that the Charter was never intended to be an alternative route to human rights legislation for the resolution of private discrimination.

John McCarthy (in archival footage) [00:15:02] Mr. Justice La Forest in the McKinney case indicated as follows: In his Section 1 analysis quote, the Charter was expressly framed, so as not to apply to private conduct. It left the task of regulating and advancing the cause of human rights in the private sector to the legislative branch. This invites a measure of deference for legislative choice. As counsel for the Attorney General for Saskatchewan colourfully put it, “This should lead us to ensure that the Charter doesn’t do through the back door what it clearly can’t do through the front door.”

It’s our position that provincial human rights legislation is not required to include all the enumerated or analogous grounds that are contained in the Charter.

Darrin [00:15:46] John McCarthy then went on to say…

John McCarthy (in archival footage) [00:15:48] Therefore, as is our submission, the human rights legislation and the Charter were designed to achieve different purposes. For example, the employment-related sections of the IRPA, which are the ones in this case which would potentially be engaged if the legislation had included the grounds of sexual orientation. You may argue that what is at issue is economic rights or the right to work, neither of which is protected by the Charter. The right to work is a private right or matter and therefore appropriately the focus of human rights legislation.

Darrin [00:16:20] John McCarthy then went on to say…

John McCarthy (in archival footage) [00:16:24] If the analogous ground of sexual orientation is ordered into the IRPA, then the effect of this will be that the IRPA must mirror the Charter, with the result that the Charter will directly govern private activity. A profound change. A purpose for which it was never intended. By operation of Section 32, a considered deliberate decision by the legislature not to exercise its plenary power should be immune from scrutiny under other Sections of the Charter.

Mr. Justice McClung’s view, and I’ve referred to this in par— in Paragraph 33 of my Factum cross appeal, is that the choice of silence is as appropriate in this case as it is on other especially contentious and morally-laden issues, such as physically-assisted suicide, reproductive rights for women as opposed to their cost, genetic engineering, and, to date, the right to work, to give a few examples.

Darrin [00:17:21] A lengthy discussion ensued between Chief Justice Lamer and John McCarthy about whether the Charter applied to a circumstance where the legislature had failed to include sexual orientation in its human rights legislation, including these comments by Chief Justice Lamer.

Chief Justice Lamer (in archival footage) [00:17:38] They— They are denied access to complain that they were discriminated about on a ground that we found to be included in Section 15 (1). So they are not equal before the law because they can’t go to that commission, while all others can… with their form of discrimination. So, it’s a form of discrimination tha-that is treated— that is not being protected… and therefore, there is discrimination that results in some individuals not being equal. That’s my reading of 15. Obviously we’ll never agree on that one.

[laughter in the Court]

Darrin [00:18:33] The judges continued to pepper John McCarthy with questions about the submission of the Government of Alberta that the Charter applied only to what was included in the legislation, not what wasn’t included.

That exchange contained the following comment by Justice Iacobucci.

Justice Frank Iacobucci (in archival footage) [00:18:52] So what we’re taking from all this is that there’s a new doctrine. We’ll call it the “McCarthy Doctrine.” [laughter from Justice Iacobucci, followed by others]

Th-the— That statutory nonfeasance. Statutory nonfeasance is not covered by the Charter. It’s only misfeasance that’s covered by the Charter. Is that— Is that— That’s what it really amounts to because now we’ll give— we will encourage legislatures not to— first of all, probably not to do anything, but secondly, if they do it, do it on the most limited of grounds.

Darrin [00:19:24] The government’s argument ended with submissions that if a Charter breach were found to have occurred, that finding should be limited to the employment sections of the IRPA. And that reading in was not an appropriate remedy. No oral argument was presented that the breach could be demonstrably justified in a free and democratic society under Section 1 of the Charter.

Doug S [00:19:46] You know, it’s interesting… the Alberta government never really framed an argument about why allowing discrimination, uh, was okay. Instead, their argument really was focused on “the Charter of Rights and Freedoms doesn’t apply in this case for a variety of reasons. That is, there’s nothing in the law to require us to legislate and include sexual orientation.” It was not an argument about why there was a social good to refusing to add sexual orientation to the human rights Act.

Darrin [00:20:26] The Alberta government’s presentation was followed by submissions of the interveners supporting its position, namely the Christian Legal Fellowship, the Alberta Federation of Women United for Families, the Evangelical Fellowship of Canada, and Focus on the Family (Canada) Association. That included a lively exchange between Chief Justice Lamer and Gerald Chipeur, representing the Evangelical Fellowship and Focus on the Family, about whether the purpose of the IRPA was to protect all persons from discrimination, or only those persons listed in the IRPA.

Chief Justice Lamer (in archival footage) [00:21:00] The statute is… recognize the inherent dignity and the equal and inalienable rights of all persons as being the foundation of freedom, justice, and peace in the world. Then it goes on and… drops a group.

Gerald Chipeur (in archival footage) [00:21:26] Well, I-I-I think that it’s-it’s clear that—

Chief Justice Lamer (in archival footage) [00:21:30] That if I read 1 and then I read 2, the second were as— I see that the-they cover nearly everything. Race, religious beliefs, colour, gender, physical disability, mental disability, age, ancestry, place of origin, marital status, source of income, or family status.

Gerald (in archival footage) [00:21:51] Mm-hmm. But if—

Chief Justice Lamer (in archival footage) [00:21:52] If I compare that to-to what I’ve just read before, I say— I have to say, “Well, th-they obviously do not want to protect the inherent… it’s inherent… dignity of those who have a certain sexual orientation, if that’s the purpose. I’m not— I’m not— I’m not saying that I— that is. [Gerald: Mm-hmm] And I-I’m not decided on this case—

Gerald (in archival footage) [00:22:21] But if… if in fact one takes that approach, [Chief Justice Lamer: Uh-huh] then the logical conclusion is that if the Government of Alberta were ever to repeal this, then obviously their purpose is to take away all of those rights… because we’d be going back to the way it was. And then what you have is you have—

Chief Justice Lamer (in archival footage) [00:22:40] Everybody would— Everybody would be equally unprotected.

Gerald (in archival footage) [00:22:43] That’s right. Everyone would be equally unprotec— unprotected. But… then what you would have is you would have someone arguing that the government’s action in repealing this is, in fact, taking away all… rights. And so, th-the question is, is that consistent with Section 15 of the Charter? And, uh—

Chief Justice Lamer (in archival footage) [00:23:09] That’s because everybody will be equal in Alberta [Gerald: And—] as regards the protections— those protections, uh, not being non-existent.

Gerald (in archival footage) [00:23:20] If, in fact, the conclusion is that the purpose of this legislation—

Chief Justice Lamer (in archival footage) [00:23:24] Well, I don’t know why. I didn’t write the first where as.

Gerald (in archival footage) [00:23:26] I know. No, but if the pur— If the— If the— If the conclusion [is] that the purpose of this legislation is to go beyond what the legislation actually says, and to protect every conceivable right… in terms of discrimination—

Chief Justice Lamer (in archival footage) [00:23:41] It says of all persons. The— Of the inherent dignity of [scolding] all persons.

Gerald (in archival footage) [00:23:49] If that’s the purpose—

Chief Justice Lamer (in archival footage) [00:23:53] Well, that’s what they say—

Gerald (in archival footage) [00:23:55] If that’s the purpose [laughter in background] as outlined— as outlined in the Sections that follow. Because remember, the Sections that follow actually disclose what the legislature intends to do. The purpose has to come from the legislation itself.

Chief Justice Lamer (in archival footage) [00:24:07] Well, the purpose was to… to… to… to recognize the inherent dignity of all persons… and then they [frustration building] drop a group.

Gerald (in archival footage) [00:24:16] Well, I don’t think it’s correct to say they dropped a group. The fact is they have not… added a group as fast as [Chief Justice Lamer: There’s—] some would [frustration building] have them added.

Chief Justice Lamer (in archival footage) [00:24:26] But if you wanted to protect all persons in Alberta, you’re not because you’re dropp— You’re not protecting the— uh, the homosexuals.

Gerald (in archival footage) [00:24:39] And it’s our submission that this legislation was intended to protect, and the purpose of the legislation was to protect, those who’re listed. In other words, those grounds that are listed. That’s the purpose. If, in fact, this Court finds that the purpose is everything then, um, obviously something has been left out. And so, that’s a question that, uh.. you’ll have to— you’ll have to address because, uh, we won’t agree on the purpose.

Chief Justice Lamer (in archival footage) [00:25:06] No, I know that.

Gerald (in archival footage) [00:25:09] Thank you very much.

[laughter in the Court]

Chief Justice Lamer (in archival footage) [00:25:11] And your time is up.

Gerald (in archival footage) [00:25:12] Thank you.

[widespread laughter in the Court]

Darrin [00:25:15] There was a positive feeling among Delwin’s legal team by the end of the submissions of the Government of Alberta and the interveners supporting its position. The tone in the Supreme Court that day was inspiring a growing confidence that they could have a genuine shot at winning this case. The final component, and it was an important one, was the closing argument to be delivered by Doug Stollery… the next day… or so they thought. You’ll recall that the case was scheduled over two days. Doug and the team had planned to prepare his closing argument that evening before delivering it on what was supposed to be the final day of the hearing.

But suddenly, Chief Justice Lamer announced that they would complete the hearing in a single day. There was suddenly a lot of work to do in a very short amount of time.

Doug S [00:26:06] And so, uh, you know. We’ll— We’ll wrap it all up this afternoon, which, of course, meant that I needed to present our closing argument without having [chuckling] prepared a single word of that argument. So, it was the lunch break and, uh… our plan had been that we would take a little bit of a break and, you know, have something to eat. It was just an hour.

Instead, Sheila and I found a— uh, a sofa somewhere in the… in the building and asked our friends if they would go and get us sandwiches. And so, we sat there with bag lunches and busily hand-wrote out what we thought [laughing] a closing argument would— should be based on what we had seen to that point. And so, while I had planned to come into the Court with my argument all nicely bound, typed, uh, I had a, you know, handwritten, uh, presentation with, I think, a little bit of mustard on it.

Darrin [00:27:04] Doug Stollery was about to stand in front of the Supreme Court justices. He had a job to do. He was representing a client, but he was also a subject of the very discrimination that was being challenged. The dignity of the individual, the community, and the law were all converging in one powerful moment.

Doug S [00:27:25] Well, you know, as a lawyer, you try really hard to distance yourself so that you are objective. You are there as the professional presenting, uh, the case on behalf of your client and, you know, that this is not your case. And, of course, this was Delwin’s case, but it was Delwin’s case, really, on behalf of the entire LGBTQ community. So… it was difficult to distance myself from the case. And when arguments were being made about, you know, those people. Like, I was one of those people. I felt it hard not to cry… ‘cause I was thinking, “This is my life that we’re talking about. And this is going to impact… me. And it’s going to impact my friends, uh. And it’s going to impact the entire community in such a fundamental way.”

Darrin [00:28:17] Doug approached the lectern with his mustard-stained notes. Chief Justice Lamer noted that Sheila’s time had already extended by 10 minutes earlier in the day, and so he reminded Doug to remain within his allotted 5 minute window.

5 minutes.

So much rested on what happened in the next 5 minutes.

Doug began his argument by reminding the Court that there were, in fact, four appellants in this case. Not just Delwin.

Doug S (in archival footage) [00:28:44] A point that I don’t think has been made, although I suspect every other point has been made, Sir, uh… is that there are, in fact, four appellants here, not one. Mr. Vriend, of course, and we’ve heard of his circumstances. Fired from his position because of his sexual orientation, and advised by the Human Rights Commission that they would not deal with his complaint. I do not believe it was ever withdrawn.

But there are three other appellants as well. The Gay and Lesbian Awareness Society of Edmonton, the Gay and Lesbian Community Centre for Edmonton, and Dignity Canada for Gay Catholics and Supporters. This application is not just brought by one individual who was fired from his job, and the relief that is sought is not simply relief in respect of that one act. This is an application brought more generally to get a declaration with respect to all of the sections of the IRPA.

Darrin [00:29:41] Doug then recalled the Dignity Report, which was commissioned by the Government of Alberta for the purpose of providing recommendations on human rights legislation in Alberta. In both 1984 and 1992, the Alberta Human Rights Commission had recommended that the IRPA should be amended to include sexual orientation.

Intergovernmental correspondence shows that the Alberta government considered sexual orientation a marginal ground, and that human rights legislation would not change public attitudes. The government made a deliberate choice to exclude sexual orientation.

But in 1993, the government appointed a panel to review the issue. That panel’s report, released in 1994, was called the Dignity Report. It made a number of recommendations, one of which was the inclusion of sexual orientation in the province’s human rights legislation. Recommendation number 34 in the Dignity Report stated that all grounds should apply to all areas. Areas such as employment, accommodation, public services.

This was how Doug set up his argument that it was important for the remedy not simply to address one area (like employment, for example), but that the remedy must include all of the areas as opposed to taking a piecemeal approach.

Justice Sopinka took issue with this.

Justice John Sopinka (in archival footage) [00:31:01] Well, doesn’t the legislature ha-have to be given an opportunity to consider how all this fits in? And there may be certain special defenses that apply in some areas, and not others. For instance, in Ontario for many years, with respect to religious schools, there were special defenses. And I mean, just reading it in without suspending anything. I mean… how can you say that the legislature would’ve enacted?

Doug S (in archival footage) [00:31:27] Sir, if there were— The only special defense that I think arises in the case of the IRPA itself… is the one that was identified by Madam Justice Hunt, which is Section 7 sub 2 of the Act, which deals with a bona fide pension and retirement scheme, in respect of which age and marital status are the only exceptions. Otherwise, the exceptions apply pretty generally.

Darrin [00:31:55] Doug’s mission was to demonstrate that the failure to provide protection for queer Albertans in all of the areas would mean that cases would have to be brought in front of the courts to fight for protection in every single area, creating a massive and needless burden, especially considering that the opportunity to read-in sexual orientation as a protected ground in all of the areas was available now.

Doug S (in archival footage) [00:32:18] And I would respectfully submit, My Lords, My ladies, that if it’s limited to employment-related sections, then we will have to wait for a lesbian to be denied accommodation, and bring her case forward for that Section. We will have to wait for a gay man to be denied, uh, access to a restaurant, and bring that case forward.

Unknown voice (in archival footage) [00:32:42] You don’t think the legislature will get the message?

[laughter in the Court]

Doug S (in archival footage) [00:32:45] My Lord, I su— respectfully submit that the Alberta legislature has made its position very clear. And I— There is no particular reason to believe that the Alberta legislature will voluntarily take steps to deal with the other sections of the Act. Certainly there has been no suggestion by my learned friend that that would be the case.

Darrin [00:33:09] Doug now began to set up his final remarks. It was clear what the IRPA was designed to do. And it was clear that when it came to queer Albertans, people were being left out of its protections. And it was clear that this was an intentional move by the Alberta government and that they had not demonstrated any rationale for doing so.

Doug S (in archival footage) [00:33:29] In conclusion, the IRPA declares as a fundamental principle and matter of public policy that all persons are equal in dignity without regard to race, gender, religion, and other enumerated personal characteristics. It establishes a mechanism to prevent and rectify discrimination on the basis of those characteristics.

Notwithstanding the widespread and pernicious discrimination suffered by gay men and lesbians in our society, the Alberta government has made the conscious decision to exclude sexual orientation from the IRPA. That includes the conscious decision to withhold state recognition that persons are equal in dignity without regard to sexual orientation, and to withhold the benefits of the remedial mechanism in respect of sexual orientation discrimination. It has failed to provide a rational and defensible explanation for that exclusion.

Darrin [00:34:26] And then Doug spoke to the impact of this exclusion. The human and societal toll that discrimination creates.

Doug S (in archival footage) [00:34:36] That impact is particularly detrimental in the case of gay men and lesbians. If gay men and lesbians are refused state protection against sexual orientation discrimination, their only protection may be to hide their sexual orientation from their employers and their landlords and from society as a whole. Retreating into the closet will further erode their sense of self-worth in a very fundamental way.

The Government of Alberta has made it clear that it has no intention of remedying the discrimination it has promoted and perpetuated through exclusion of sexual orientation in the IRPA. If the constitutional rights in Section 15 (1) of the Charter have any meaning, then it is the role of this Court to provide an effective remedy.

Darrin [00:35:22] And with that, years of research and preparation and activism and passion came to a close. All that was left to do was to wait for the decision, which could take several agonizing months. As positive as the team felt, there was no way of knowing what would happen next. But it seemed to have gone well.

Here’s Sheila Greckol reflecting on that moment.

Sheila Greckol [00:35:44] I believe that we left very optimistic. I-I believe we did. And in part, honestly, again, I have to say… we had the law on our side. We had the, I would say, public support on the issue and there’s always this convergence between law and community. In my view, the tables, you know— th-the corner had been turned in terms of this collection of rights.

I feel we had… the community behind us. And if— It’s always important. I mean, it’s always important. There’s always gonna be naysayers and there were in the courtroom that day. But I feel we had the… thrust of history with us that day. And so, could be that I happened to be an optimist. An eternal optimist. And maybe I was just hopeful, again, that day. But I felt… I felt we were on the side of justice and it’s a palpable feeling, actually. It just penetrates your heart and your soul and you know it’s the right thing. So… I don’t know. I was very optimistic when we left.

Darrin [00:36:46] Cautiously upbeat, the team felt they could count on four of the votes going in their favour. But based on the decision in the Egan case a few years earlier, they felt that four votes could potentially go the other way. That meant that the ninth vote, the swing vote in the form of Justice Sopinka who had previously indicated a willingness to consider this exact question, was the key.

However, it was also Justice Sopinka who had questioned Doug during his closing statement about whether the government should be given the opportunity to craft its own remedy rather than reading sexual orientation into the IRPA.

Doug S [00:37:21] One of the judges, Justice Sopinka, signaled in his judgment that, although he had found against the Charter challenge in that particular case, he might be prepared to… find a Charter breach on the basis of sexual orientation in another case. And so… we paid particular attention to his judgment in the Egan case. We watched th-the tape of that case. Uh, we tailored the argument so that we thought that that would— the argument might be one tha-that he would find compelling.

And when the case finished, we had a reasonable sense that we might have been successful in convincing Justice Sopinka. And 20 days after the case was heard, he died. So… that left us with four judges from the Egan case that had gone against gay rights, and four judges in favour. And if the Court split the same way in our case, we would lose the appeal because to prevail in an appeal, you have to have a majority on your side.

Darrin [00:38:30] There were a lot of hopes riding on Justice Sopinka’s vote. But less than three weeks after the hearing, Canada learned the tragic and sobering news that Justice Sopinka had passed away. Victory was suddenly a little bit less sure.

On the next episode of Vriend Versus Alberta.

[additional transition music plays behind next episode preview]

Murray Billett [00:38:50] So, when we got off the airport, there was a couple hundred people with banners and— and the media were there.

Doug S [00:38:57] A biiiig, really tough looking guy came up to us and said, (as Tough Guy) “Are you part of this gay case?”

Murray [00:39:03] And people had to come out and face the discrimination. And not just the discrimination, you guys. The gay bashing.

Doug S [00:39:11] The person we viewed as the swing vote on the Court passed away, tragically.

Murray [00:39:15] The decision was coming down at 7:30 our time.

Delwin Vriend [00:39:20] No matter what the decision was, that day was gonna be [laughing] hell.

Doug S [00:39:24] We got a phone call from the guy that said, “I have the decision.”

Sheila [00:39:27] The decision came over the fax machine. Delwin was waiting outside.

Delwin [00:39:33] And I just collapsed. We know the government is never— not going to be reacting well, and we know they’re going to think about invoking the notwithstanding clause. So we know the fight’s not over.

[outro music plays in background]

Andrew [00:39:50] 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 Doug Stollery, Sheila Greckol, John McCarthy, Justice Antonio Lamer, Justice John C. Major, Justice Peter Cory, Justice Beverley McLachlin, Justice Charles Gonthier, Justice Claire L’Heureux-Dubé, Justice Frank Iacobucci, Justice John Sopinka, and Gerald Chipeur.

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 and Andrew Paul.

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.