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Vriend v. Alberta, [1998] 1 SCR 493

Facts:

Challenge of omission of sexual orientation from Alberta’s Individual Rights Protection Act by Vriend after he was dismissed from his employment for being gay. Legislative history showed it was a deliberate omission. Challenged under s.15.

Issue(s):

Does a legislative omission fall under the ambit of the Charter?

Ratio:

Under-inclusive laws can be subject to Charter review and can violate rights.

Analysis:

*Threshold test: “Some matter within the authority of the legislature” which is the proper subject of a Charter analysis
*Argument that legislative omissions are outside the jurisdiction of the courts is refuted – court qualifies by saying deference is considered in s.1 analysis
**Also, this was a deliberate failure to act by the legislature
*Positive act encroaching on rights not required by s.32 – the Charter will be engaged even if the legislature refuses to exercise its authority (through oversight or omission)
*The applicability of a Charter challenge shouldn’t depend upon legislative form – would be illogical and unfair [legislative intent is not important]
**Want to avoid a “sphere of inaction” where the Charter does not apply because it has not been legislated – this is backwards violation
*Underinclusive laws can be subject to Charter review
**Does NOT impose positive obligations on State to initiate action against inequalities – just to fix the gap by looking at impact of law on particular group


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