Delwin was dismissed from his position as a teacher at a private catholic college solely because of his sexual orientation. Sexual orientation was not included in the Alberta Human Rights Act. It had been discussed in the legislature, and many attempts had been made to have it added; however motions to do so were always defeated. Delwin claims that this omission is a violation of the Charter. Delwin was successful at trial - the judge stating "sexual orientation" should be read into the Act - but this was overturned at appeal.
- Does the Charter apply to government omissions, i.e. decisions not to include certain things in legislation?!
The court "read in" sexual orientation as grounds for discrimination.
Alberta argued that to read sexual orientation in to the Act would be to overstep judicial boundaries in law writing. However, the majority disagreed and stated that they are upholding the Constitution and the values it protects, and not merely writing new laws. Alberta also argued that there is no distinction because no one gets coverage for sexual orientation – not just homosexuals; however the court rejects this and says that it is really the effects that matter because if it were otherwise then the government could discriminate whenever they wanted to simply by omitting things from the legislation. Similarly, the province says that the purpose of the legislation is benefit inferring, and therefore it is not contrary to the Charter; however, the court rejects this and says that if there is an ulterior purpose behind the omission it must also be considered. The province also tries to argue that this claim would simply mean that all legislation has to mirror the Charter. However, the court rejects this and says that it is not the case because s.1 can save laws that do not fit with the Charter. Therefore, this argument has no footing.
Cory points out that there are two ways to find a distinction. In one way, this treats homosexuals differently than heterosexuals – this is an adverse effects argument, as homosexuals need protection more. The other difference is between homosexuals and all other minority groups, who receive protection for the grounds on which they are most likely to receive discrimination, bringing in the idea of comparator groups. This helps a claimant show that they are being treated differently: if you can establish a relevant comparator group and show that you are treated differently then them, then a distinction is being made.
- The Charter applies to government omissions as well as positive acts; if a legislature chooses not to include something in their legislation that should be protected by the Charter, then the courts can step in and insist that this right or freedom be granted.
- Choosing not to include something in a piece of legislation is a government action; it is not the same thing as not acting at all.
- It is the effects of legislation that matter in creating discrimination; purposes of omissions must be considered if they are relevant just as much as purposes of the legislation as a whole is considered.
- Establishing comparator groups is an essential element in determining that a distinction is being created.