Vriend Versus Alberta Part 3: No Recourse

[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.

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Murray Billett [00:01:05] The only avenue that Delwin had was to file a human rights complaint.

Delwin Vriend [00:01:09] How can a government direct a supposedly independent agency, tasked with human rights, not to investigate certain human rights?

Murray [00:01:17] They said, “We can’t accept this complaint because the words sexual orientation are not included in the legislation.”

Doug Stollery [00:01:25] It was not a popular case. Lawyers were not banging down the doors to take on this case.

Doug Elliott [00:01:30] And that same name kept coming up again and again and again.

Various voices [00:01:35] Sheila Greckol.

Sheila Greckol.

 

Sheila Greckol.

Doug S [00:01:38] And went home and that evening, sent her a note, sent a small cheque because there was no money for this appeal.

Sheila Greckol [00:01:45] I think I phoned him and I said, “I need you. I don’t need your money. I need you to come and help us.”

Doug S [00:01:51] I barely knew where the courthouse was. Clearly I was the wrong person for this job.

Sheila [00:01:57] Another thing you learn, if equality means anything, it means that people have the right to be protected against hatred. And there should be no exceptions to that.

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Darrin Hagen [00:02:15] Welcome to episode three of Vriend Versus Alberta. This series is produced by Edmonton Community Foundation and the Edmonton Queer History Project. I’m your host, Darrin Hagen.

In the previous episode, we learned about the unceremonious firing of Delwin Vriend by King’s College. The reason for the firing? King’s College determined that it could not allow a member of its staff to be openly gay. It violated their code of Christian conduct. In 1991, there were a few options open to anyone in Alberta who had to contend with being fired on such discriminatory grounds.

Delwin had two choices: stay quiet and accept his termination, or fight back. Delwin decided to fight back. And so, he approached the Alberta Human Rights Commission with the intent to launch a grievance. But as we are about to learn from Murray Billett and Delwin himself, this was easier said than done.

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Murray Billett [00:03:14] So in terms of redress, the only avenue that Delwin had, subsequent to his termination, was to file a human rights complaint. But… the human rights language of the day, the Individual Rights Protection Act, I-R-P-A did not include sexual orientation. Despite that, we went to the Human Rights Commission and Delwin said, “I want to file a complaint. I’m fired for being gay.” And what was cool was King’s College made it real easy. They were crystal clear that he was being fired for being gay. So we had that locked and loaded. We knew that’s why he was dismissed. So when we went to the Human Rights Commission, and-and Delwin can tell a story with more precision than I…

 

Delwin Vriend [00:03:59] Yeah. So I, uh— the Human Rights Commission. We— I had to make an appointment. They— They’re expecting me already. I mean, it’s been in the news. They see my name on the… on the schedule. So I come in and was like, “Oh, hi.” “Hi. Yeah, we’re waiting to— We’re, uh… we’re expecting you. We’ll brief you shortly.” And, um, go in and sit with her in her office and say, “So, yeah. You know, tell me a little bit about what happened. Obviously, I know… from the media a lot of what’s happened.” So I tell her the story and, uh, she says, “Yeah, no, obviously I think there’s a problem here. But we’ve been directed by the Alberta government that we are not to investigate any cases surrounding sexuality. So there’s really nothing we can do.” And, you know, I was sort of expecting that. But of course, disappointed that the Human Rights Commission itself wouldn’t be pushing back a little bit harder against the government.

Murray [00:04:51] They said, “We can’t accept this complaint because the words sexual orientation are not included in the legislation. Sorry, we can’t help you. The ministers have advised the Human Rights Commission. We can’t help you.” So that made it very clear that, in terms of any kind of justice, it wasn’t gonna happen at the Human Rights Commission because the language wasn’t there. So the only avenue left subsequent to that was a court case.

Delwin [00:05:23] How can a government direct a supposedly independent agency, tasked with human rights, not to investigate certain human rights? Like. Err. Um. So yeah, I went away… I went away disappointed. Um, basically went back to my lawyer and said, “Hey, what’s the next step?” “Well, we have been denied by the Human Rights Commission. So the next step is to bring a suit against the government for not protecting your rights.” And so we started on that.

Murray [00:05:56] And for me, I was kind of happy about that. And the reason I was pleased, when a person files a complaint to the Human Rights Commission, it’s about me and the Human Rights Commission and that employer. So it has the unilateral impact solely on the individual filing the complaint, and the, uh, person that they complained against if they would’ve filed against King’s College. This was never about King’s College, but what it did… was give us the opportunity to put it into the court of the day. And with that, it’s going to have an impact on everybody instead of just the one person through the Human Rights Commission.

 

Delwin [00:06:38] Uh, Victor Leginsky was his name. And… yeah, he was— he was a confident lawyer. He was fairly busy and he ended up moving to Ottawa after the very first court case, so he— that was… that was the end of the court case for him. He was also fairly expensive. We did some fundraising. I paid some out of my own pocket. It wasn’t that much, but we did some fundraising for it. And he took it through the, um, the Court of Queen’s Bench.

I have very… dim memories of that first court case. I know I was in the court. I can almost picture it. But, you know, my involvement in the court case was very minimal. This was a paper case. I didn’t have to… to testify. I didn’t have to be a witness. This was just— I mean, everyone agreed to everything that had happened. The King’s College was clear that Yes, we fired him ‘cause he was gay.

Murray [00:07:32] So we filed a complaint at the Court of Queen’s Bench. And Justice Russell was the judge. And, uh, so there’s only one single judge at the Court of Queen’s Bench. Uh, we filed that complaint and she ruled in our favor. And the most important and telling part of this case… and I would invite anybody that’s out there that’s interested in this case… take a look at the Queen’s Bench decision and the Delwin Vriend case with Madam Justice Russell on the bench. She took what’s called judicial notice. Judicial notice means we don’t even need evidence. It is, and I’m paraphrasing what she said, that “discrimination against gay people is a notorious reality that is known by everyone, and I don’t need any kind of evidence to prove that there’s discrimination against gay people.” So that was the most compelling and powerful part of her decision that solidified our win. The fact that she didn’t even need evidence to prove that our community was being discriminated against.

Delwin [00:08:42] And we won in that case. So we were… we were quite happy. Of course, there’s always room for appeals, and of course, the government appeals. Now, we’re disappointed. We’re not surprised, but we’re disappointed that the government appeals.

Murray [00:08:57] Um… that hurt. This is [crying] where it gets emotional. [To production crew] Guys, just give me a sec here.

It gets… it gets really— When you think you win something and you deserve to win… and you have a government take that right and pull it out of your hands. And that’s what they did… when they decided to go to the Court of Appeal.

Darrin [00:09:20] Delwin’s first lawyer moved away from Edmonton before the Alberta government decided to appeal the decision. This meant that if Delwin wanted to move forward with his case, it was back to square one. He was working part-time at the AIDS Network, and so he was surrounded by activists who were trying to change the world in their own way. And that’s when two extremely significant stories of Canadian queer activism suddenly intersected.

Doug Elliott is a gay activist and lawyer who had been involved in the AIDS movement since 1983. When the federal government decided to hold a public inquiry into the tainted blood scandal, he was one of the legal minds retained by the Canadian AIDS Society to take part in the Krever Inquiry. As this inquiry held hearings across the country, Doug Elliott found himself in Alberta at a very pivotal moment in the story.

Doug Elliott [00:10:10] When I went to Edmonton, I was meeting with local gay activists like Michael Phair and Murray Billett who were going to be testifying at the Krever Inquiry, uh, potentially. And I also met with the people from the AIDS Network of Edmonton Society. But what I didn’t know until I got to the AIDS Network of Edmonton Society was that Delwin Vriend was working for them. And they told me that Delwin had a problem because he needed a lawyer to handle the case on appeal, and he wondered if I would take on the appeal for him. I said I would help him, uh… agreed to meet with him, but we had a conversation about me representing him, and I said, “Look, Delwin, uh, it’s— I’m flattered that you would like me to represent you, and I really would like to help you, but I’m not the right person for you.” And I said I would help him find a lawyer that was not me. So I got busy trying to find him a lawyer and, um, started reaching out to people to ask who was the right person for Delwin. And that same name kept coming up again and again and again. Uh, and that name was Sheila Greckol.

Darrin [00:11:20] Sheila Greckol was a partner in Chivers, Greckol and Kanee, a firm that already had a history of defending human rights by taking cases that may not be the easy or popular battles. Sheila was passionate about equality, representing women and unions when they went up against the Alberta government. And the firm had defended gay men who had been caught in traps of police overreach as far back as the Pisces bathhouse raid in 1981.

Sheila Greckol [00:11:45] I had a random phone call from someone I didn’t know named Doug Elliott, who you might know from his long and deep work with the LGBTQ2S community in Toronto and with the HIV, the blood bank cases, all of that. And he was a very, uh… and still is, I think, a very estimable advocate for the community in Toronto and on other important cases. And he called, he was gonna be in Edmonton.

Doug E [00:12:14] So, uh… I asked around about Sheila Greckol and I found out that because she was so good, she was extremely busy. And that the tough part was not going to be persuading her to take on the case, but getting to talk to her at all. So I decided to trick her… um, [laughing] is essentially what happened. I knew that she had been on the board of the AIDS Network of Edmonton Society. And, uh, I called her-her office and I said— I told the truth. I said, “I’m a lawyer with the— representing the Canadian AIDS Society. I’m here for the Krever Inquiry. We’re only here for a limited period of time. I really would like to talk to Ms. Greckol.”

Sheila [00:13:00] He came— made an appointment, came to see me, and asked me if I would take over the Delwin Vriend case. Um, by the time that… that, uh, request came along, of course I was fully familiar with the trials and tribulations, and pain and suffering being endured by the community. And I was also a human rights lawyer. So I had some… skills to bring, uh, at that point. And the community— I’m speaking more broadly in Edmonton. I was involved in political activities, I was involved in women’s rights at that point, and the abortion… cause and doing many other things. So I-I was eager to take this on because I thought that, um… this among the many things that we were doing as an activist community in Edmonton and Alberta at that time probably was, you know, most needing of our advocacy and our assistance.

Doug E [00:13:54] And I said, “You know, I know that the Canadian AIDS Society feels very strongly that we have a kind of moral obligation to help our beleaguered LGBT brothers and sisters in Alberta who are facing a daunting battle against the Klein government. And facing, uh, societal homophobia that’s worse than in other places. And we feel like… those of us who are in a little better situation should be standing shoulder to shoulder with folks in Alberta.” So, I said, “If it gets to the Supreme Court of Canada, which it may well, um… at that point, the Canadian AIDS Society will seek intervener status, and I will stand next to you in the Supreme Court of Canada and support your position as the lawyer for the Canadian AIDS Society. That, I can promise you.”

Um, so Sheila said she would think about it. She was interested in the case. Her only concern really was that she was so busy— What— How, you know, would she find the time to be able to do it? But, of course, she did eventually say yes and took on the case, which made me very happy, indeed.

Darrin [00:15:12] Delwin had managed to find his new lead counsel, thanks to Doug Elliott’s efforts. But taking on the government of Alberta was going to require a full team of committed and talented legal minds.

Here’s Delwin recalling his initial meeting with Sheila to begin the process of building their team.

 

Delwin [00:15:29] So… I was introduced to Sheila Greckol and-and sat down with her, and I don’t remember all the details there either, but I do remember, yes, that she was very interested in this case. I mean, I think it was already a fairly high-visibility case and, uh, a fairly important case in her mind, definitely for… for Alberta. And, uh, she was quite willing to take this on. And in fact… and this was probably the saving grace, uh, had it not been for Sheila Greckol… she took it on pro bono… which I mean, just allowed us to do it.

Sheila [00:16:04] That I guess I was, you know… [laughing] as he would say, quote, “shilling for contributions” to help us fight our case, because a legal case, sure, we could provide our legal services pro bono, but that doesn’t pay the bills down at the courthouse or the costs or what we would need to, you know, fly to Ottawa, all the rest of that. So anyway, Doug reminds me that he saw me up there, uh, you know, speaking at a probably very small rally beside— in Strathcona.

Darrin [00:16:31] In the ‘90s, there were very few openly gay lawyers in Alberta. One of those lawyers was Edmonton’s Doug Stollery. The case came to his attention in a very ordinary way. It wouldn’t have occurred to him as he rode his bike through a park that a life-changing moment was imminent.

Doug Stollery [00:16:47] So in— One day in June of 1994, I was on-on my bicycle, and I happened to be cycling by, uh, a small park in Edmonton. Uh, and I saw somebody that I knew from law school; a woman by the name of Sheila Greckol, she was here ahead of me. And, uh, I stopped and saw that she was talking about a case that she had just undertaken to represent a fellow who had been fired from his job because he was gay, and how she was going to take this to the Court of Appeal to… to protect Delwin’s interests. I thought, “This is a great case. Good for you, Sheila.” And went home and that evening, sent her a note, sent a small cheque because there was no money for this appeal, so they were looking to raise some money— Sent a small cheque and said, “You know, Sheila, if you want some help, I’m-I’m happy to volunteer” thinking like maybe I could photocopy or… or do some research or something.

Sheila [00:17:42] But what I remember is opening his letter at my desk and there was a cheque in it, but I won’t tell you how much. And he… he was making a contribution to the case. And he just wrote a nice little, sweet little note saying, “If I can be of any further assistance—” And of course, I knew him by reputation. A brilliant lawyer, Harvard trained, had done all kinds of things, had taught and was, you know, a— really a scion of the academic legal community. And so, [laughing] I think I phoned him and I said, “I need you. I don’t need your money. I need you to come and help us.”

 

Doug S [00:18:16] Because I was a solicitor, I-I… reviewed, drafted, negotiated contracts, particularly construction contracts, and really knew nothing at all about the Charter of Rights and Freedoms. And in fact, the Charter didn’t even exist when I went to law school. So this was completely new territory for me. So, Sheila picked up the phone and said, “Hey, this is great. Thanks for the cheque” and, um, “love to have you volunteer, uh, I’d love you to be co-counsel.” Which was, you know, a very odd thing for me since I barely knew where the courthouse was. So, clearly I was the wrong person for this job. Except as Sheila and I discussed it, there really wasn’t anybody else ‘cause it was not a popular case. Lawyers were not banging down the doors to take on this case. The government was-was adamant in their position. And I think there was probably some reluctance, uh, on the part of some to… to take on a case directly against the government. No, and you weren’t getting paid for this.

Sheila [00:19:19] Well, as a labor lawyer and human rights lawyer in Alberta, I was fighting with the government a lot and my clients included, for example, the United Nurses of Alberta. The government in some form was always on the other side of those cases. The strike cases, the unlawful strike cases. So… I understood what it was to have the government as an adversary. They have the resources, they have the high-priced downtown lawyers, [laughter] they have the political will to do what they want.

Doug S [00:19:48] And we really needed somebody on the team who had lived experience as a gay man or a… or a lesbian. And in Edmonton, at that point, you could count on one hand the number of out gay lawyers and have… like… four fingers leftover. So that kind of left me, I’m afraid. And [laughing] so, I joined the team and I figured, well, I’ll just have to do some learning [laughing] over the next little bit so that I’m ready to go.

Sheila [00:20:19] Another thing you learn during your-your period of years of development as a lawyer, you know when there’s… truth in what you’re saying. You have a deep understanding both that you are on the side of the angels from the perspective of whether or not it’s the right thing to do. You also know when you have a sound legal basis to advance a case. Not an iffy legal basis, a sound legal basis. If Section 15 of the Charter of Rights and Freedoms guarantees equality before and under the law to all Canadians, why should people in the gay and lesbian community and the trans community be denied those same rights? It’s that simple. And if equality means anything, it means that people have the right to be protected against hatred in the provision of the fundamental basics of a life with dignity. Which is the right to work, the right to have a place to live, the right to access healthcare and other public services, the right to [emphasized] the fundamentals of existence. That is what provincial human rights legislation protects for each citizen, and there should be no exceptions to that.

Darrin [00:21:34] Coming up on the next episode of Vriend Versus Alberta.

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Sheila [00:21:38] I was not optimistic that we would be successful at the Court of Appeal.

Murray [00:21:43] And so when we saw… uh, Justice McClung come out, no pun intended, we… knew that we were gonna be in trouble.

Sheila [00:21:51] We wanted to get evidence before the court. The heightened risk of suicide, the numbers of deaths and the profound psychological trauma suffered by members of the-the community.

Doug S [00:22:04] He swung his chair around and faced the wall so that he wouldn’t have to look at us as we made our argument.

Murray [00:22:10] The man had the audacity to turn his chair and put his back to the courtroom.

Doug S [00:22:18] So, that was a sign that things weren’t going well.

Doug E [00:22:21] Justice McClung’s ruling may be the most homophobic ruling in the history of Canada since the Charter of Rights came into effect. I was so enraged… that I actually took the decision and hurled it down the streetcar.

Delwin [00:22:36] It meant we had another decision to make. If we’re going to do this, we’re going to the end. Uh, we’re gonna go to Supreme Court.

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Andrew [00:22:45] 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 Murray Billett, Delwin Vriend, Doug Stollery, Doug Elliott and Sheila Greckol. The music in Vriend Versus Alberta is written, composed, and recorded by Darrin Hagen. Many thanks to our sound operators, Ariana Brophy and Andrew Paul. We’d also like to thank our production assistants, JoAnne Pierce and Graeme Lummer.

 

Special thanks to Doug Stollery, Cindy Davis, Edmonton Public Schools Archives and Museum, and Cambridge LLP. You can learn more about Edmonton Community Foundation at ecf.ca, and check out more queer history by visiting the Edmonton Queer History Project at EdmontonQueerHistoryProject.ca.