The Arduous Struggle for Equality

Twenty Years After Vriend vs. Alberta

Image for PostImage courtesy of Jo-Ann Kolmes.

On the morning of November 4, 1997, small pamphlets of hate adorned each seat in the Supreme Court of Canada's main courtroom. Exactly who had left them was unknown, but the reason was obvious: in hearing the case of Delwin Vriend, Canada's highest court had signaled that the "threat" of homosexuality was an issue of national importance.

Each homophobic tract was quietly, but swiftly, removed by the legal team who had arrived to argue Vriend's case. Unsettled by the find, the team, which included future University of Alberta Chancellor Douglas Stollery, readied themselves for the hearing. This was not to be the day in court that they had imagined.

The case of Delwin Vriend vs. the Province of Alberta, which revolved around the violation of the Canadian Charter of Rights & Freedoms by the Alberta Individual Rights Protection Act's omission of protections to prevent discrimination based on sexual orientation, was set to take two days; the first day would see the counsel for Vriend and supporting interveners present their argument, and day two would see counsel for the province and supporting intervenors present their case and then allow the Vriend team to offer their rebuttal.

Before arriving to the court, the Vriend team had already decided to prepare their rebuttal after hearing the first day's arguments. They had planned to ensure that their counterstatement would respond to the questions raised by the judges. They would spend their evening carefully crafting the delivery of their case, and Stollery would be the one to deliver it the next day.

With the homophobic propaganda pamphlets removed from the room, the rest of the morning went as expected. The Vriend team and their interveners presented their opening arguments.. As the noon hour approached, Chief Justice Antonio Lamer quite casually announced that he had changed his mind about the length of the case - rather than two days, he wanted to hear the whole thing in just one.

"You know that sinking feeling that you get? That 'oh no!' moment? It was one of those," Stollery says thinking back to that time. Remember, the then solicitor had intentionally entered court that day without a ready rebuttal. Presenting at the Supreme Court for the first time would be an intimidating experience on its own; doing so as a solicitor whose early career speciality was in the preparation of contracts and not in human rights law would have been daunting. But to be a first time presenter at the Supreme Court of Canada, who had virtually no human rights experience, very little trial experience, and no planned rebuttal to present must have been inconceivable. It only added to the already intense tension of the day.

With only a lunch break providing pause, Stollery and lead counsel Sheila Greckol grabbed their sandwiches, headed to a couch, and got to work.

Image for PostImage courtesy of Jo-Ann Kolmes.

The rustle of their lunch bags was the only distraction allowed as the two crafted the argument that Stollery would share with the judges. Then, what must have felt like either the shortest or longest lunch break ever was over and Court was quickly back in session. Time sped up and the final argument for Vriend was made. Knowing how significant the consequences of the decision could be, anxiously waiting for the decision was the only thing left to do. But that would take months, not minutes. They headed back home to Edmonton the next night. They would have left sooner, but because they were acting on a pro bono basis, they'd booked non-refundable tickets in anticipation of the two-day hearing.

Getting to Court

Although the case presented to the Supreme Court of Canada only lasted a day, getting to the Supreme Court had taken years. Originally fired by The King's College in 1991 for being in a same-sex relationship, Vriend initially complained to the Alberta Human Rights Commission who rejected the complaint because the Alberta Individual Rights Protection Act did not include protections to prevent discrimination based on sexual orientation.

Vriend sued the province for violating the Canadian Charter of Rights and Freedoms, winning the case in 1994. The provincial government appealed the decision and the original verdict was overturned in 1996.

Sheila Greckol, now a judge of the Alberta Court of Appeal, but then, a local labour and human rights lawyer in Edmonton, had become involved as the lead counsel for the Vriend team. After hearing Greckol mention the state of the Vriend case at a passionate post-Pride Parade talk, Douglas Stollery was inspired to assist as best he could. He sent her a short note offering to help run office errands, and when she called him in to chat, one thing lead to another and Stollery joined the team as one of the co-counsel positions alongside Jo-ann Kolmes, June Ross, and lead Sheila Greckol.

With each member of the Vriend legal team coming from their different offices, the case was pulled together over long evenings and short weekends. Each member of the team poured themselves into the very difficult and very technical case.

"One of my tasks as a member of the team was to go every week to the newsstand and see what we were facing that week," Stollery recalls. What he found was rarely encouraging.

Although reading the headlines was uncomfortable, Stollery explains that this "kind of work helped us because we gained an understanding of the arguments that we needed to address. It's one thing to understand your own argument well, but it's another to understand the arguments of those who are opposed."

Learning to understand the other side would become increasingly important even after the case had been presented, since the court of public opinion was still in full session.

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Alberta Report was just one of the publications drawing attention at that time. On its November 17, 1997 cover, the magazine ran the headline "Why do Canada's courts invent charter rights for gays and not babies?" Another article in the same issue appeared under the headline "When Vriend wins, so does Graham James [a junior hockey coach convicted of sexual assault]."

As is the case with all Supreme Court rulings, the team waited anxiously for months before finding out the decision. Finally on the morning of April 2, 1998, it came. Someone from a firm in Ottawa had to pick up the decision from the court and literally call the team in Edmonton. As he flipped through the pages, the Vriend team waited. At last, the words came through the phone… The Supreme Court of Canada ruled in favour of Vriend. They'd won!

Image for PostImage courtesy of Jo-Ann Kolmes.

The team was filled with excitement and turned on the TV to see what the media would report. It only took a few minutes, but one of the first stories that came across the screen featured one of the province's interveners decrying the decision. "What she had to say was similar to the arguments that we'd heard before. But what I found surprising was that behind her was a large poster protesting the decision. I wondered where that came from and how it was that they managed to have this poster prepared so quickly," Stollery said.

While the Vriend team had been preparing themselves by looking to see what the other side might say, the opposing side had been preparing a media campaign to encourage the Alberta government to invoke the Notwithstanding Clause in the event of a Vriend win. The clause, which permits the government to override a court decision on the Charter of Rights and Freedoms, had, at that point, never been used in the province. The launch of the media campaign meant the excitement over the Supreme Court victory was short lived. Postcards were being sent to the Government of Alberta, petitioning it to use the Notwithstanding Clause. "The challenge for all of us on the team was that, while we had expertise in the law, we didn't have any expertise in fighting a public relations campaign. And we certainly didn't have any money to launch a counter public relations campaign."

Calder Bateman offered guidance, free of charge, on how to handle the negative press, because there was a lot of it. In particular, Delwin Vriend had become the public face of a controversial cause, so any advice on how to handle the interest and at times malicious intrusion of the media was welcomed.

Ultimately, then Premier Ralph Klein opted not to invoke the clause. For the team, Stollery says that the decision "felt like a new victory." Although a battle had been won, Stollery and the team knew full well that the struggle for equality was still far from over. It would be another 11 years before the province would finally follow through on amending the Alberta Individual Rights Protection Act, and when they did, they added a line that would require teachers to give parents warning if issues related to the LGBTQ2+ community were to be raised in class - for the purpose of allowing parents to pull their children from such discussions. The amendment was removed by the passing of Bill 10 in 2015.

In twenty years, have things changed?

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"Immediately after the case, when the campaign was on to invoke the notwithstanding clause, there were lots of ugly things being said, and at that point human rights on the basis of sexual orientation was thought to be extraordinarily controversial and many people adamantly opposed it. But, six months later, I could see the attitudes changing," said Stollery.

He's believes this was possible because the daily lives of people who had opposed or been indifferent to the case, hadn't changed. "People realized that the world didn't come to an end. Their lives continued. Those who weren't subject to sexual orientation discrimination continued with their daily lives. And those who were subject to that discrimination started to see, slowly, started to see that lift."

While Stollery believes tremendous progress has been made since that case, he just as strongly believes that, even in 2018, there is still a long way to go. "Discrimination exists in lots of places, including discrimination against gays and lesbians - certainly transphobia remains a serious issue in our society. And racism and other forms of discrimination all exist as well. And while we've made wonderful progress from a legal perspective in Canada, there are many, many countries in the world where progress has not been made."

Looking closer to home though, he notes that, "the fact that the Supreme Court declared discrimination against gays and lesbians to be fundamentally wrong, and the exclusion from human rights to be a breach of Canada's constitution had an important impact on people's attitudes."

Twenty years after delivering the rebuttal for Vriend vs. Alberta, on November 28, 2017, Douglas Stollery once again found himself in Ottawa. This time, instead of facing homophobic propaganda or listening to arguments to excludeLGBTQ2+ discrimination protections, he heard the Prime Minister of Canada say, "we are truly sorry."

"It was tremendously emotional. It brought back a lot of memories of darker times. And I was in a sense of awe that we had moved as far as we have."

Continuing to move forward is something that Stollery believes we can and must continue to do. "Each of us has a responsibility to do what we can to make the world a better place. And the progress that we've made in human rights for all people over the last 50 years or so, comes from the efforts of tens or hundreds of thousands of people, individually and collectively, to try to make change."

Twenty years after Vriend vs. Alberta, it's worth remembering that "difficult as the goal of equality may be it is worth the arduous struggle to attain. It is only when equality is a reality that fraternity and harmony will be achieved. It is then that all individuals will truly live in dignity" (Vriend v. Alberta, 1998).

On Monday, March 19, 2018, you can learn more about the Vriend case and its University of Alberta connections at the inaugural Chancellor's Forum: Pride or Prejudice? Celebrating LGTBQ2 Rights. This year's forum is being held in conjunction with the University of Alberta's Pride Week (March 12-21) and Equity, Diversity, & Inclusion Week (March 17 -13).Chancellor's Forum: Pride or Prejudice? Celebrating LGTBQ2 RightsChancellor's Forum: Pride or Prejudice? Celebrating LGTBQ2 Rights. This year's forum is being held in conjunction with the University of Alberta's Pride Week (March 12-21) and Equity, Diversity, & Inclusion Week (March 17 -13).