April 17, 1998

In this issue:

• Valuing equality means valuing the court's authority to ensure it
• Who do we think we're fooling?

I feel extremely good about being one of the lawyers who worked on behalf of Delwin Vriend. The case invoked s. 15 of the Canadian Charter of Rights and Freedoms to call the Alberta government to account for its continuing refusal to include gay men and lesbians in its human rights legislation. This created a fundamental inequality. While many charter cases raise debatable issues of social policy, this case was about the basic and widely shared belief that all persons are equal in dignity and rights.

The Vriend case was not about "promoting" any "lifestyle" or "special rights" for gays and lesbians. All that it sought to do and did was to bring Alberta into the same position as the rest of Canada, as a place where employment, accommodations and services cannot be withheld from anybody because of personal characteristics that have no bearing on the need for, qualification for or entitlement to a job, a place to live or public services.

We all have a myriad of personal characteristics, and so we are all members of minorities and majorities. I am female and Jewish, and also white and heterosexual. Our families link us to other communities and differences. These personal characteristics and associations make us who we are. We must be able to live and participate in society as who we are.

While I believe these are shared values, I also believe we do not always act on them. On a day-to-day basis, we tend to look out for ourselves and those we see as being like us, and to ignore or sometimes react with suspicion or dislike of those we see as

different. We do this in our personal lives, and in our communities, right up to the level of our legislatures. The exclusion of gays and lesbians in Alberta human rights law was an extreme form of this kind of neglect or hostility.

In my understanding, that is why we, as a Canadian community, democratically adopted s. 15 of the Charter of Rights and Freedoms. We were recognizing that we, and by extension our governments, do not always act consistently with our underlying beliefs. We were creating a protection for ourselves as minorities from ourselves as those who act carelessly or even maliciously. We gave the courts a role in this protective system; a role to review our collective actions, to see whether or not they are consistent with our underlying beliefs.

Courts can err. But did the Supreme Court of Canada err in the Vriend decision? All members of the court held that, in excluding gays and lesbians from basic human rights protection, Albertans were not living up to the guarantee of equality. I have not heard a serious argument that this decision was wrong.

Some of the reaction to the Vriend case has not been about what the court did in this case, but what it might do in some other case in the future. Some of the reaction has provided a clear demonstration of the existence of discrimination and the need for human rights protection for gays and lesbians.

Much of the criticism has been directed not to the decision, but to the court's role under the charter. This seems strange to me given the solid foundation for the decision itself. The court has been criticized simply because it has authority, and not because of concern that it exercised the authority poorly.

It has been argued that the words "sexual orientation" do not appear in the charter, and that it was the court that read in these terms, first into the charter in the 1995 Egan decision, and then into human rights law in the Vriend decision. But s. 15 of the charter does not purport to give a comprehensive listing of prohibited forms of discrimination; that was expressly left by our elected bodies to be developed by the courts. In 1995 the court held, again unanimously, that discrimination based on sexual orientation, like discrimination based on race or religion or gender, is due to stereotyping and not merit and that it has caused and continues to cause recognizable social harms. For these reasons, the court held that such discrimination should be included in s. 15. Those who complain of this cannot realistically suggest the court lacked clear authority or a clear and compelling rationale.

There is disagreement about the form of remedy selected by the court. Alberta's human rights law was unconstitutional. The court was obliged to provide a remedy. Would it really have been less of an intrusion into the legislative role to declare the entire human rights law invalid, even after a period of delay, rather than to extend its protection? Overall, the court concluded that it was adopting the least intrusive approach, and, in the final analysis it appears this conclusion was justified.

In the Vriend case our protective system operated as it should. If we value the right to equality, we must also value the authority of the court that gives that right its meaning and effectiveness. To override the charter's protective system simply because the court has done its job would be irrational, anti-democratic, and a fundamental attack on all of our equality rights.

Have you ever been caught in a conspiracy of silence when everyone masked their real feelings, hiding them behind pretence and falsehood? Here's a story to show you how it works.

Once upon a time, too many years ago now, my high school band played "O Canada" at the start of a choir concert. Sitting in the bass section facing the audience, I was able to watch as puzzlement spread across the auditorium. No one rose to their feet or stood at attention because no one could recognize the melody, it was so poorly played.

Afterwards, we comforted the instrumentalists with any number of excuses. "People didn't see the lights dim." "Most folk don't stand up for the national anthem any more." "The crowd was distracted by the ceiling fans." Well meaning falsehoods -- a conspiracy of silence. Who did we think we were fooling? The orchestra was a disaster.

Is there perhaps not a similar conspiracy of silence surrounding the course set by a true north strong and private province such as Alberta? Go anywhere in the country and you'll find yourself boasting of our booming economy. "Jobs are going begging." There's always a clutch of envious disbelievers willing to listen to our legends about the "no sales tax" land of freedom. "Just look at West Edmonton Mall if you want to see real progress," we tell them.

Then in the hushed silence created by the mention of this city's chief land mark and high temple, we whisper on about balanced budgets, lower taxes, oil revenues, and the Heritage Fund. We're rich, we're moving ahead, we're on the cutting edge, we're plugged in, on-line and up linked.

Perhaps.

When will we muster the modesty and honesty necessary to tell the whole truth?

Life in this province is very good for the rich and beautiful, and we like to trumpet its glamour. If you're on the top of the heap, there's not a better heap to dominate.

But many folks don't ever get a chance to climb higher than a month-by-month existence. Young people languish in minimum wage "Mcjobs" that promise little future and even fewer benefits. To raise a family on the meaner, leaner salaries, you may work several jobs, hold a number of out sourced contracts for off-hours, or cultivate a money-making home industry.

Books are balanced on the backs of the poor. Health services are slashed, teachers and nurses are penalized, and everything is a pay-as-you go proposition in the new restructuring. The university has not been immune to this fee-based economy. It's simple.

As governments claw back, students fork out.

If we were able to look at our society from a sober distance, we'd admit that the silver lining comes with a serious cloud formation. But according to the dynamics of our conspiracy, we don't mention these darker dimensions to others or even to ourselves, as the most vulnerable are surrendered to political expediency.

And we certainly don't recognize the victims of our propaganda. There have been many special interest groups who have suffered the derision of our up-beat culture. Most recently, our pent-up frustration has been aimed at gays and lesbians who have become a lightning rod for our unspoken, but present, collective discontent.

Conspiracies, especially the false ones, thrive on silence. If someone had stood up in that school auditorium and said, "That's a terrible rendition of the national anthem," the orchestra might have tried harder.

Surely, the same needs to happen in our society -- and perhaps the university is still a location where truth and objectivity retain some value.

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