The inside story of the case that changed LGBTQ rights in Alberta
U of A chancellor Doug Stollery gives a behind-the-scenes account of the landmark case of Vriend v. Alberta.
By HALLIE BRODIE
On the morning of Nov. 4, 1997, in the Supreme Court of Canada’s main courtroom, anti-gay and lesbian pamphlets adorned each seat. Exactly who had left them was unknown, but the reason was obvious: in hearing the case of Delwin Vriend, Canada’s highest court had signalled that the “threat” of homosexuality was an issue of national importance.
Unsettled by the find, Vriend’s legal team, which included future University of Alberta chancellor Douglas Stollery, quietly but swiftly removed each of the pamphlets and readied itself for the hearing. This was not to be the day in court they had imagined.
The case of Delwin Vriend vs. the Province of Alberta revolved around the violation of the Canadian Charter of Rights and Freedoms by the Alberta Individual Rights Protection Act’s omission of protections to prevent discrimination based on sexual orientation. It was set to take two days: the first day would see counsel for Vriend and supporting interveners present their argument, and the second day would see counsel for the province and supporting interveners present their case and then allow the Vriend team to offer their rebuttal.
Chancellor's Forum celebrates LGBTQ2 rights
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.
Before arriving at the court, the Vriend team had decided to prepare their rebuttal after hearing the first day’s arguments. They had planned to ensure 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 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 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?” Stollery says. “It was one of those.”
Though Stollery had been practising law for 20 years, it was as a solicitor, working primarily in contract law. He had little trial experience and none arguing in front of the Supreme Court. He’d also gone to law school in the early 1970s—before the Canadian Charter of Rights and Freedoms had been written.
“I needed to learn all about the charter from scratch,” he said.
The essence of the case, according to the legal team, was the refusal of the Alberta government to recognize that people in the province are equal in dignity, rights and responsibilities without regard to sexual orientation.
“As a gay man, this case involved more than an academic argument; it was deeply personal,” said Stollery.
He was also very aware that no case arguing the right to equality for sexual minorities had ever been successful before the Supreme Court. In the most recent case, the court had ruled that while sexual orientation was a protected ground under the charter, the exclusion of a partner in a same-sex relationship from Old Age Pension rights either was not discriminatory or was justifiable.
“We knew that our case was an uphill struggle,” said Stollery. “I was nervous but also deeply grateful of the opportunity to argue before the Supreme Court of Canada that the refusal by the government to protect Albertans from sexual orientation discrimination was unconstitutional.”
The judge’s decision to cut the length of the trial only added to that feeling of nervousness.
With only a lunch break providing pause, Stollery and lead counsel Sheila Greckol grabbed their sandwiches, headed to a couch and got to work. The rustle of their lunch bags was the only distraction allowed as the two crafted the argument that Stollery would have to share. Then, what felt like the shortest lunch break ever was over. Court was back in session. Time sped up and the final argument for Vriend was made.
The only thing left to do was to wait for the decision, which 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 lasted only 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 filed a complaint with the Alberta Human Rights Commission, which rejected it 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, was a local labour and human rights lawyer in Edmonton then and had become involved sometime in 1994 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, 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 led to another and Stollery joined the team as one of the co-counsel positions alongside Greckol, Jo-Ann Kolmes and June Ross.
With each member of the Vriend legal team coming from different offices, the case was pulled together over long evenings and short weekends. The members of the team poured themselves into the 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 recalled. What he found was rarely encouraging.
Although reading the headlines was uncomfortable, Stollery explained 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.
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].”
The decision and its aftermath
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, six months after the case was argued, the decision was in. Someone from a law firm in Ottawa collected it from the court and called 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 had unanimously ruled in favour of Vriend.
The team was filled with excitement and turned on the television to see what the media would report. Within minutes, a story came across the screen featuring one of the province’s interveners decrying the decision. “What she had to say was similar to the arguments 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 legal 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. Postcards were being sent to the government of Alberta, petitioning it to use the controversial clause, which gives the government the power to override a court decision on the Charter of Rights and Freedoms.
“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,” said Stollery.
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 media coverage was welcomed.
Despite the campaign and political pressure, then-premier Ralph Klein opted not to invoke the clause. For the team, it “felt like a new victory,” said Stollery. And yet, he and the team knew full well the struggle for equality was 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 it did, it added a line that would require teachers to give parents notice 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 in 2015 with the passing of Bill 10.
In 20 years, have things changed?
“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 convinced it was 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 that lift, slowly,” he said.
While Stollery believes tremendous progress has been made since the 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, he notes, “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 Nov. 28, 2017, Douglas Stollery once again found himself in Ottawa. This time, instead of facing homophobic propaganda or listening to arguments to exclude LGBTQ2+ 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 Stollery believes we can and must 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.”