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.
Does a legislative omission fall under the ambit of the Charter?
Under-inclusive laws can be subject to Charter review and can violate rights.
*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