Vriend Versus Alberta Part 4: Unappealing

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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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Sheila Greckol [00:01:04] I was not optimistic that we would be successful at the Court of Appeal.

Murray Billett [00:01:08] And so when we saw… uh, Justice McClung come out, no pun intended, we… knew that we were gonna be in trouble.

Sheila [00:01:17] 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 Stollery [00:01:29] 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 [00:01:36] The man had the audacity to turn his chair and put his back to the courtroom.

Doug S [00:01:44] So, that was a sign that things weren’t going well.

Doug Elliott [00:01:47] 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 Vriend [00:02:02] 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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Darrin Hagen [00:02:17] Welcome to episode four 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 heard the story of Delwin Vriend bringing his wrongful dismissal case to the Alberta Human Rights Commission, only to learn that the commission had been specifically instructed not to investigate cases involving queer and trans rights. When he challenged this by taking the Alberta government to court, his team was successful in an astonishing ruling by Justice Russell, who stated in her written ruling that discrimination against the queer and trans community was a historical, universal, notorious and [emphasized] indisputable social reality.

But the victory was short-lived. The Alberta government appealed the decision, sending the case to the Alberta Court of Appeal, the next step in the arduous process of seeking justice in Alberta. Delwin and his legal team were about to learn firsthand how entrenched homophobia was.

Let’s listen, as Delwin Vriend and Sheila Greckol recall the day of the appeal.

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Delwin Vriend [00:03:26] For the appeal, we-we had to go to the Appeals Court of Alberta. I remember that morning, walking up to the court building, there’s— all these-these cameras are… are watching me enter the court building. And I come up to the door and I push and… it doesn’t go for me. It’s like, oops.

[Laughter]

Of course, that’s on camera everywhere. Every single television station has me trying to bumble into the building.

Sheila Greckol [00:03:50] I had articled at the Alberta Court of Appeal. And I was, you know, arguing cases already at that point at the Alberta Court of Appeal. I was fully aware of the personalities involved on the court, the… the kind of conservative, and in some cases religious orientation, of some of the judges. So, I was not optimistic that we would be successful at the Court of Appeal.

Darrin [00:04:12] Three judges of the Alberta Court of Appeal were assigned to hear this case: Justice John McClung, who presided over the appeal, along with Justice Constance Hunt and Justice Willis O’Leary.

Delwin [00:04:24] And then, yeah, walk up to the… walk up to the courtroom where we have Justice McClung. Uh, we knew that in advance. Uh, we were not pleased with that. We knew that this would be difficult because he was… one of those conservatives who really didn’t like this, and we knew that there would be, uh, some-some hard arguing to do.

Darrin [00:04:44] Justice McClung was the grandson of Nellie McClung, who was famous for advancing women’s rights as well as being infamous for her stance on eugenics. Buzz McClung, as he was known, has left behind an enduring and troubling history from his time in Alberta’s justice system.

After making his mark as one of Canada’s top criminal defense lawyers in the early 1970s, he was eventually elevated to the Alberta Court of Appeal in 1979. We’ll be exploring his decision in the Vriend v Alberta case in some detail, but it should be noted that his decision in this case was not his most regrettable decision. He later ruled in a notorious sexual assault case that the teenage victim provoked her assailant by not showing up for a job interview in, quote, “bonnets and crinolines,” end quote. And that the actions of the assailant were, quote, “far less criminal than hormonal,” end quote.

Very miss in mind, it will probably come as no surprise when you hear his written ruling on queer and trans rights in Alberta.

As Murray Billett recalls, it certainly didn’t bode well from the beginning.

Murray [00:05:48] And so when we saw… uh, Justice McClung come out, no pun intended, we… knew that we were gonna be in trouble. He had very antiquated views.

Delwin [00:05:59] Of course, I’m… I’m just there as a spectator like any other spectator there. There’s-there’s no special Delwin seat or… or whatever. So I’m a spectator there watching Sheila argue the case and the government arguing their case in front of Justice McClung. And, you know, it’s hard to tell what’s going to happen. Uh, no one really knows. Except from the questioning of McClung, it was clear that he… he was leaning to rule in the— in… in… in favour of the government.

Sheila [00:06:32] Well, he was very hostile to it. And in fact… I went in there with not such a solid feeling of comfort because I had brought a preliminary application to try to add to our material. An affidavit from Dr. Warneke who, as you may know, was a… really a world renowned expert on some of the suffering experienced by members of the community.

And so, we wanted to get evidence before the court of what discrimination meant to individuals. For example, the heightened risk of suicide, the numbers of deaths by— and-and the various ways that that occurred, and the profound psychological trauma suffered by members of the community. Suffering from discrimination, the marginalization of people, the rejection by their family— families, rejections by friends, rejections by community, sometimes a loss of employment, the hatred, what it means to suffer from the hatred.

Darrin [00:07:36] In 1997, the suicide rate among queer and trans Canadians was six times the national average. Death from AIDS and HIV were rising and with it, a whole new form of anti-gay discrimination. The human toll of exclusion could be seen in the numbers of queer and trans people who faced expulsion from our families or our jobs. The rate of drug abuse and smoking was higher in the queer population, resulting in even more deaths. Being queer or trans, especially in a province like Alberta, where the government was actively working against us, was difficult, dangerous, and sometimes deadly.

Sheila [00:08:12] We wanted to put this evidence forward, and there is— it’s called a Brandeis brief. There is the ability in law, and in fact, uh, you know, there’s decisions from our court about this. We’re… we’re entitled to bring this type of evidence before the court to set the social context for the purely legal argument. And in fact, social context judging has become standard law in Canada. We have cases from the Supreme Court of Canada that say, “To better fully understand cases and to be making legal decisions, we should be able to look at the social, the economic, the… the entire context of the problem and the decision that we’re making.” So that’s all we were arguing. We were wanting to put this affidavit forward. Well, I got such a dressing down from Justice McClung when I brought that preliminary application as though I was engaging in some type of sleight of hand in doing something, you know, inappropriate.

And of course, I wasn’t. I mean, it was just an application to bring further evidence before the court that was really non-controversial, well-documented, well-researched, and by a prominent authority in our community, but also beyond the borders of our province, Dr. Warneke. So, that application was not successful. By the time we got to actually arguing the case, he had published an article containing all of this information, so we included it in our authorities and [laughing] that did not endear me to Justice McClung. [Laughing] And so I was in even deeper trouble for having done that. So anyway, there was that. So he had very strong personal feelings about this.

Darrin [00:09:55] Despite the overwhelmingly supportive tone of the initial decision by Justice Russell, there were signs that led both Doug and Sheila to sense that the next decision might not go the way they hoped.

Doug Stollery [00:10:06] Now, the judges were not… particularly accepting of the arguments that we were making. And in fact, the presiding justice, Justice McClung, when Sheila Greckol started to argue our side of the case, he swung his chair around and faced the wall so that he wouldn’t have to look at us as we made our argument. So, that was a sign that things weren’t going well.

Sheila [00:10:31] So we had a very, you know— It was a— It was a very unpleasant experience, and he turned his back, uh, when I was arguing. Then I argued… the balance of the case to his back, uh, which is an extremely, sort of, demoralizing, disrespectful thing for a member of the court to do.

Murray [00:10:48] That’s the part that really astonished me was… when Sheila tried to enter a particular set of evidence that McClung didn’t like, the man had the audacity to turn his chair and put his back to the courtroom. Un— In my view, unprecedented. But at that point, we kind of knew where things were going to go. I think it was a sad day for the justice system, for a judge of any kind to do something like that. But it certainly put the writing on the wall, uh, with, um… tremendous clarity.

Delwin [00:11:26] Of course, we weren’t… extremely hopeful. We weren’t… extremely disheartened, either. We thought, you know, it could go either way. But when his decision came down, and I don’t know how much later it was, but, uh, when the decision came down and-and, uh, the Alberta government had won their appeal, of course, yeah, that’s a… that’s a huge disappointment. Like really? Really? After… after all this, you’re going to give into the government. The government’s gonna get their way. And… despite [emphasized] everything that we’ve argued, despite everything we’ve shown, sexuality is not going to be a protected ground in Alberta. So that was a— that was a big disappointment. And I thi— I mean… I think we did have a rally down at the legislature about that. It was a disappointment rally. Yeah, that was— that was not a pleasant moment.

[Defeated laughter]

Doug S [00:12:18] We lost the appeal two judges to one, and the-the judgment against us was forceful— Just, let’s just say it was forcefully written.

Darrin [00:12:28] Forcefully written could be an understatement. The controversial conservative judge didn’t hold back in his written decision. In fact, there were comments and phrases that would ultimately come back to haunt him, and that would have significant impact in the years ahead.

Sheila [00:12:42] Well, it was full of hate, and I would say homophobia and moral, um— you know, the tyranny of the majority kind of thinking and… and moralizing about a particular point of view. Um, punishing, really. He said things like, you know, um, “Gay rights goes against a millennial of moral teaching.” He used a phrase in that decision: “rights, euphoric, costs, scoffing, lefties.” He might as well have said, bracket, “Ms. Greckol.” You know, he used a rape illusion relative to the trial judge who had made the decision at the Court of Queen’s Bench in favor of, um… in favor of the applicant, Delwin Vriend. And the very disappointing thing to me was I had… people who I very much respected in the community, who… who thought it was brilliantly written and who, you know, supported what he was doing.

Darrin [00:13:43] Doug Elliott, who had introduced Delwin to Sheila Greckol, was not one of these people. Back in Toronto, he had been following the case, knowing it would have implications beyond Alberta’s borders. He has vivid memories of his reaction to the language in McClung’s decision.

Doug Elliott [00:13:59] Justice McClung’s ruling may be the most homophobic ruling in the history of Canada since the Charter of Rights came into effect. It was absolutely appalling. When I was reading it on the streetcar, and I came to the part where he was talking about Clifford Olson and Jeffrey Dahmer, I was so enraged… that I actually took the decision and hurled it down the streetcar. I think that people in the car thought someone had gone off their meds. Uh, I apologized [laughing nervously] to everyone and-and picked it up. But it made me furious. In fact, later I complained to the Canadian Judicial Council about his language, and they agreed with me that it was homophobic and inappropriate.

Sheila [00:14:42] So it was… it was painful for me, not— And I wasn’t, uh, obviously the subject of-of the— or part of the community that he was writing about. But it was painful for me to see people and where they lined up on this issue. Even then. Even at that stage when we’re on the verge, really, of a breakthrough.

Delwin [00:14:59] That was not a pleasant— It meant we had another decision to make. And, um, it wasn’t really a decision to make. Uh, I had already decided, if we’re going to do this, we’re going to the end. Uh, there’s no use giving up halfway, uh… we’re gonna go to Supreme Court.

Doug E [00:15:14] Uh, I felt terrible for Delwin and terrible for Sheila. Um, I called them and expressed my concern, and, uh, they assured me that they were going to be seeking leave to appeal to the Supreme Court of Canada. I was convinced they would get it.

Delwin [00:15:31] Oh, I was asked at many points. Uh, Murray Billett asked me. I think even Sheila Greckol asked me. It’s like, “Look, are you… are you… are you ready to go for this? This is gonna be another couple of years. And, you know, you-you’ve seen what the stress is right now with the media, that’s just going to continue. Do you… do you really want to?” It’s like, “Yeah, I— Look, I know it’s stressful. I hate it. It’s— But we gotta do this. This is our chance.” So we did! Uh, Sheila started preparing for the, um, for the Supreme Court challenge. And, uh, we appealed to the Supreme Court. And the Supreme Court, uh, agreed to hear the case.

Darrin [00:16:07] The team had been granted leave to appeal. This meant they were bringing the case before the highest court in the nation. That in itself was a victory. But it wasn’t over by a long shot, and many potential perils lay ahead. Win or lose, the consensus was that the Klein government had other weapons of denial in its arsenal. There was even the possibility that the Alberta government could dismantle human rights protection, not just for queer and trans Albertans, but for all Albertans rather than concede defeat.

Here are Sheila Greckol and Doug Stollery detailing some of the concerns they were facing.

Sheila [00:16:43] If we were unsuccessful, it would close the door to access to the equality rights Section 15 in the Charter for the LGBTQ2S community. So the stakes were high, uh, despite how confident I personally was in my heart.

Doug S [00:17:00] Other— You know, other cases had gone before courts. Up to that point, there had never been a successful case before the Supreme Court of Canada. So, if we were to lose… well, we’d still be in the same position. Again, maybe it would be a little worse ‘cause it would be just that much harder for the next case to come along and win.

Sheila [00:17:17] I do believe in the arc of justice. I do believe that we live in one of the greatest countries in the world, if not the greatest, uh, with our Charter of Rights and Freedoms and our legal system. And I-I felt just full of a great deal of hope moving forward. But of course, there’s always risks.

Doug S [00:17:35] Strangely, there was a-a serious risk of winning as well… because the traditional remedy that’s available if a court finds that legislation is in breach of the Charter— typically the remedy is for the court to say to the legislature, “Well, you’ve got a period of time, six months, for example, to amend the legislation to make it compliant with the Charter. And if you don’t, then the legislation will be struck down.” So the risk that we faced, which was a real and practical risk, was that if we won and the remedy that was granted was the court saying, “You’ve got a limited period of time, or we’ll strike down the legislation” that the Alberta government would’ve let the government— let the Human Rights Act fall. Which then would’ve meant that no one on any ground would have protections under the Human Rights Act ‘cause it wouldn’t exist anymore.

So what we needed was, not only to succeed on the merits and to have the court find that this was a breach of the Charter, we also needed the court to… provide a rather unique remedy called reading in. And what that means is the court goes— the court itself, in effect, amends the legislation by adding the words that are needed to make it compliant. And in our case, what that meant when— was the court would have to add in reference to sexual orientation throughout the Human Rights Act, so that it would be dealt with just like other grounds, like-like age or… or, uh, disability, et cetera.

Sheila [00:19:18] You put as much as you can in to support, factually, the case that you’re advocating. Uh, by that time, there were a growing— there was a growing body of legal precedent to deal with, uh, under the Charter. Um, it’s never… it’s never simple, put it that way. And in those years, which I call the halcyon years of human rights in Canada, we were developing analytical approaches to both human rights and to Charter law. So it was a challenge, from a legal perspective.

Doug S [00:19:52] We felt that we had a very solid case. The real question was, could we persuade the judges that we had a very solid case?

Sheila [00:20:03] The higher the stakes, the more important it is in your own mind. The more… the more you want to bring everything that you have to give to bear for that case. Like, you want to bring your passion, but also your cold analytic skills. And the adrenaline rush, I think, propels you forward and sharpens your abilities and skills whatever they may be.

Darrin [00:20:24] Coming up on the next episode of Vriend Versus Alberta.

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Murray [00:20:28] But the most heartbreaking and gut wrenching part of going into the Supreme Court was religious pamphlets on every damn seat.

Doug E [00:20:39] There’s that old saying that “a tie is like kissing your sister.” Well, we didn’t wanna kiss our sister. We wanted to win.

Murray [00:20:45] For many of them, it was their first time at the Supreme Court of Canada.

Julie Lloyd [00:20:49] My partner gave me [laughing] a new pair of boxer shorts. So we agreed that these would be my Supreme Court boxer shorts.

Sheila [00:20:57] And as nervous as you might feel, um, you just have to go in there and, you know— It’s a very intimidating experience.

Doug S [00:21:04] And so she was able to get straight through her argument. She did a [emphasized] brilliant job.

Doug E [00:21:10] I’m kind of getting goosebumps just remembering it, actually.

Murray [00:21:13] It was so moving. The tears would not stop.

Sheila [00:21:18] When he spoke, you could have heard a pin drop.

Murray [00:21:21] We had surrounded ourselves with a talented team of professional lawyers that picked this case up and collectively put it on the Supreme Court bench and said to not include sexual orientation is simply un-Canadian.

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Andrew [00:21:38] 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 Sheila Greckol, Murray Billett, Doug Stollery, Doug Elliott, Delwin Vriend, and Julie Lloyd. The music in Vriend Versus Alberta is written, composed, and recorded by Darrin Hagen. Many thanks to our sound operators, Ariana Brophy, David Gallinger, and Andrew Paul. We’d also like to thank our production assistants, JoAnne Pierce, Cara Paul and Graeme Lummer.

Special thanks to Cindy Davis, Doug Stollery, Edmonton Public Schools Archives and Museum, and Cambridge LLP.

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.