Friday, October 06, 2006

Talking Point: Delwin Vriend Case and Religious Freedom

Back here, we have a commenter dredging up the Delwin Vriend case in Alberta as an example of how "unfair" the Charter Challenge Program is to "religious freedom".

Given that the Vriend case concluded sometime back in the 1990s, I decided to go digging around and take a look at what the actual Charter challenge that Vriend raised really was all about.

Vriend was fired from his job - specifically because he was gay. I'm not going to get into my opinions about firing someone because of their sexual orientation here - I've expounded on what I think of that particular issue many times before. However, the Vriend v. Alberta case has little to do with the particulars of Vriend's firing. In fact, almost nothing.

The Charter challenge was related to the fact that Vriend's attempt to file a human rights complaint was rejected specifically because Alberta's Human Rights legislation at the time did not include GLBT citizens. The Vriend case was a matter of forcing the Alberta government to cease its tacit discrimination by omission against GLBT citizens living in that province.

It is notable that neither King's College or The Christian Reformed Church are named in the suit itself, nor in fact do they appear on the list of intervenors in the case. (They may have been members of one or more of the groups listed as intervenors in the case, as quite a large number of them are conservative religious organizations).

In short, the Vriend case with respect to King's College didn't go very far in the first place. (As far as the Alberta Court of Appeals perhaps - but I don't happen to have the case documentation for that at hand). The actual Supreme Court challenge was with respect to the laws of Alberta, not King's College per se.

So far, I have yet to see any religious organization actually launch a charter challenge. (If I recall correctly, the CCP was specifically intended for funding challenges against laws that breach the Charter of Rights and Freedoms, therefore, I would expect that it would provide funding assistance to the parties launching the challenge) Since the other party to such challenges is, unsurprisingly, the government, this is quite legitimate. Few individuals have the financial resources to push a challenge like that through to the Supreme Court, while the Government has effectively boundless resources. (If nothing else, they can stall things almost indefinitely - draining the plaintiffs resources if they so choose - after all when your budget is in the billions, what's a few million?)

So, as I suggested earlier to my commenter, I can't think of a single case where a religious organization has in fact launched a charter challenge of any sort. There have certainly been numerous cases where they have claimed that their "charter rights" are being infringed upon, but nobody seems to have actually raised an actual charter challenge. (Not surprising, when the legislation that generates the most whining almost always provides explicit references back to the Charter - it becomes pretty hard to claim that the law itself breaks the Charter)

The Vriend decision has been a sore point with religious conservatives in Alberta for a long time. Mostly because it forced the Alberta government to recognize the civil rights of GLBT citizens, and made it much more difficult to deny those citizens recognition in law. I suspect that had Vriend's appeal to the human rights tribunal in Alberta been heard in the first place (which would have tacitly admitted GLBT citizens have right to recourse under Alberta's human rights legislation), that no Charter Challenge would have been launched anyhow. I also suspect, in light of other human rights decisions I've seen, that his dismissal would likely have stood anyhow - but it is troubling to think that an employer would dismiss someone simply because they are gay.

However, the talking point that Vriend got a "free ride" is utter bunk. The man was fired from his job (removing his income source), made a public figure whether or not he wanted it, and had his life dragged through the court system for years. I can hardly call that "a free ride".

4 comments:

Anonymous said...

Grog,


I need to do more research but I do have the following comment:

You said:
but it is troubling to think that an employer would dismiss someone simply because they are gay

No-one supports firing people simply because they are gay. Vriend was not fired simply because he was gay. He was fired because he actively promoted a gay lifestyle at the Christian College by wearing T-shirts and badges with pro-gay slogans at the school. I think almost everyone at King's that interacted with him on a daily basis knew he was gay and he was not fired.
The whole point of what is wrong with Alberta v. Vriend is that Vriend was not fired from a job at any regular private sector firm because he was gay, he was fired from a Christian College which had long-understood proscriptions against engaging in homosexual activity on campus. If Vriend was a laboratory instructor at a Pharma or Engineering company he wouldn't have been fired.
The fact that a Christian College, with well-recognized, long-standing, Charter-protected specific religious beliefs against homosexual activity was the only place that a homosexual could get fired indicates that in reality Alberta was not discriminating against homosexual persons in non-religious private-sector employment. The choice of King's College wasn't an accident; LGBT activists wanted sexual orientation put in to the legislation and no sector of society would cooperate by actually discriminating against homosexual persons. The only way they could make it happen was by trying to get the courts to pick up a case and look past the fact that the only reason it was before them was that a Christian institution was being asked to ignore activities by a teacher that was contrary to its beliefs and chose not to. The courts went along.

This 'case' was used to boomerang a rights challenge that forced sexual orientation in to the Human Rights legislation over the heads of the People's elected representatives and the Queen (i.e. the procedure for legal change expressly stated in the Constitution).
The Charter was meant to provide individuals with rights against government action, it was not meant to regulate activities between individuals. The courts changed this without any input from the People or their elected representatives whatsoever and made interactions between individuals subject to the Charter. This is what's wrong. The courts are legislating, not interpreting and applying, which is a fundamental breach of the separation of powers. The judiciary is independent of the legislature and the legislature is independent of the judiciary.

Grog said...

There's a couple of factual errors in your suppositions:

1) He was fired because he actively promoted a gay lifestyle at the Christian College by wearing T-shirts and badges with pro-gay slogans at the school.

The "position statement" was adopted long after Vriend had been employed by the college for several years. (Check paragraph 6 of the Factual background in the Supreme Court decision).

I heard about the buttons and suchlike, but whether they fall before or after the adoption of that "position statment" by the college is unknown to me at this time.

2. The Charter was meant to provide individuals with rights against government action, it was not meant to regulate activities between individuals.

Where the heck do you get that assertion from? That is clearly not stated anywhere in the Constitutional or Charter documents.

Second, since the law of this nation often does place directives on the interactions between individuals, the Charter logically must have similar scope. The very notion that we have laws that define individual rights makes it quite clear that in fact those protections extend far beyond interactions between the individual and the government.

3. The courts changed this without any input from the People or their elected representatives whatsoever and made interactions between individuals subject to the Charter.

Have you actually _read_ the Charter and the supporting Constitution documents? The courts have been interpreting within the framework of those documents.

Anonymous said...

re: 2. The Charter was meant to provide individuals with rights against government action, it was not meant to regulate activities between individuals.

Where the heck do you get that assertion from?


Well, if I was to grab hold of someone, pat them down, and steal their wallet I would not be arrested for violating section 8 of the Charter; I would be arrested for assault and theft under the Criminal Code. My interaction with the other person is governed by statute, not the Charter. Kidnapping is not covered under section 9 of the Charter either. Sections 8 and 9 govern the actions of agents of the state (usually the police).

If the Charter regulates social interaction between individuals, why do we need Federal and Provincial human rights statutes? Are they redundant?
As I read the Charter I see negative and positive rights (freedoms and entitlements) a legal person has vis-a-vis the state; I don't see it controlling interpersonal relations.

Grog said...

Kidnapping, assault etc. are defined within the Criminal Code of Canada, which is backed by the Charter itself. In the cases you cite, the Charter applies with respect to section 7, which speaks to the security of the person. Yes, that section binds the state, but similarly, it also is binding upon the individual citizens as well.

Statute is limited by the terms of the Charter. For example, it would be a fundamental violation of the Charter itself to declare the practice of a peaceful religion illegal in Canada (e.g. Falun Gong which is banned in China). Such a law would be legitimately challenged against the Charter of Rights and would likely be struck down by the Supreme Court of Canada. (Which is precisely the kind of ruling that is often criticized as coming from an "activist judiciary")

As I stated earlier, since the Charter stipulates Individual Rights, it to some degree does have an impact on the interaction between individuals, as well as between individuals and organizations.

Most of the provincial human rights statutes in Canada predate the Charter of Rights itself. As such, to some degree they are in fact redundant. However, they remain legally valid insofar as they often form the framework within which provincial governments deliver services. (The constitution does delineate the division of powers between Federal and Provincial governments) Since no province I am aware of has repealed their provincial legislation, we find ourselves with the unique situation of that legislation being "massaged" incrementally to align it with the overarching principles of the charter.

To be perfectly honest, I've never really considered the impact of repealing the provincial rights legislation entirely. I suspect that could create some very odd situations for a while.