The Vriend Decision:
Why Media Coverage of the Supreme Court Decision Made is Politically Easy for Alberta to do Nothing

ON APRIL 2, 1998, THE SUPREME Court of Canada ruled that Alberta Human Rights Legislation did not protect homosexuals from discrimination and was in violation of Section 15 of the Charter. The decision resulted from Delwin Vriend's seven year battle with the Alberta government to have his dismissal from a private Christian School adjudicated by the Alberta Human Rights Commission. In the decision, Supreme Court Justices Frank Iacobucci and Peter Corry argued that the ruling that requires homosexual rights to be "read in" to Alberta's Human Rights Legislation was not the final stage of the process. They pointed to section 33 of the Charter of Rights and Freedoms, which allows legislatures to use the so-called notwithstanding clause to override the Supreme Court decision. But how realistic was the Alberta government's chances of invoking the notwithstanding clause?

Premier Ralph Klein's initial reaction was, "Its pretty hard to go against that kind of judgment and the kind of consideration which was given . . . by the Supreme Court of Canada." What Mr. Klein did not acknowledge was that it would be equally difficult to go against the perception of Alberta as a human rights backwater. In a previous issue of On Balance on the interplay between the courts and the media, we argued that it did not necessarily matter whether plaintiffs in Supreme Court decisions won or lost—what really mattered was whether their case won media attention. That media attention, combined with the legitimacy associated with having a Supreme Court case heard, would be the catalyst for social change. In this case, by portraying Alberta negatively, the media would be part of the movement against using the notwithstanding clause.

In this issue of On Balance, we examine the media's first day treatment of the Vriend decision. How much attention was the decision given? We examine the portrayal of the government of Alberta in particular and the province in general, along with Delwin Vriend, and the Supreme Court, to see what images were presented of them. In examining images of the major players, we found that no matter how much support the public gave the government to invoke section 33, the descriptions of the three participants in the ruling would help determine the ultimate use of the notwithstanding clause. Indeed, in the week following the decision, the premier's office was deluged with 1,000 phone calls and faxes a day calling for the notwithstanding clause to be used. Despite the outpouring of support for the notwithstanding clause, the government chose to abide by the Supreme Court ruling. While media coverage did not "force" or cause the government to abide by the court ruling, it certainly enabled the government to maintain its stance that it would not respond to the court's decision.

National TV gives decision limited attention

CBC, CTV, and Maclean's magazine gave the Vriend decision very little coverage. Although it was the lead item on the "National," that coverage consisted of only one story. No in-depth coverage or discussion of the decision was provided on the "National" or the "Magazine." This would not be significant if it were not for the fact that when the Supreme Court upheld the law in another high-profile homosexual rights case, that case received much more of CBC's attention. In 1995, James Egan lost his case to have spousal benefits apply to same-sex couples. That story was given the top news billing along side another Supreme Court decision, the Thibaudeau victory, and was the second story on the "National." Moreover, it also was the subject of an in-depth interview with Wendy Mesley and James Egan. This was followed by a panel discussion with Osgoode Hall constitutional law expert Patrick Monahan and Shelagh Day, who was identified as the co-chair of the Justice Committee of the National Action Committee on the Status of Women. Both experts agreed that the "court got it wrong" when it refused to allow spousal benefits to same-sex couples. Both panellists applauded the Supreme Court decision to read homosexual rights into section 15 of the Charter.

In the Vriend decision, CBC simply did not provide the in-depth interviews or analysis of the decision. The only reference to the 1995 case was in Alison Smith's introductory remarks that the "ruling amounts to rewriting Alberta law to bring it into line with the federal Charter of Rights." This statement made it appear that the Charter has a specific clause which identifies gay rights, rather than an earlier Supreme Court decision that "read it" into the Charter. The lack of discussion on even the controversy of reading in gay rights gives credibility to the perception that Alberta was simply wrong. The "Magazine" portion of CBC's "National" was silent on the issue. The two stories that night were on Hepatitis C and a report on a cancer doctor. The next night CBC chose to present its game show "The National Quiz" rather than debate court activism.

"CTV News" provided the same lack of debate on the Vriend decision. There was only one story about it the day the decision was brought down, and it was placed second in the news lineup. Again, this is in contrast to "CTV News'" treatment of the Egan decision, where it was the lead item and followed up by an interview between Lloyd Robertson and University of Manitoba law professor Jack London.

In Maclean's, although the decision was placed on the corner of its cover, the Vriend decision comprised only a one-page story.

The lack of attention by the national news media shows tacit approval of the Supreme Court's activism. The National Media Archive has often argued that much media power lies in what they choose to discuss and what to omit. When issues are not debated, the media signal is that there is no controversy, no opposing viewpoints that have merit. By giving the decision as little attention as they did, and providing practically no debate on Supreme Court activism, these news outlets signalled their approval of the decision and judicial activism. When the Supreme Court does not flex its activist muscles, then the media seek to promote their social causes by providing the opposing viewpoints.

Newspapers provide necessary background

In contrast to the magazine and television coverage of the decision, the Calgary Herald and the Globe and Mail gave extensive attention to the decision. Since there was a mixture of news, analysis, and opinion stories on the decision, the remainder of the discussion will contrast the Herald with the Globe coverage.

Image is everything

There is a commercial airing on television that has the slogan: "Image is Nothing." While it may be nothing when drinking a carbonated beverage, it is everything in politics. Who won and who lost the image race in the Vriend decision?

Vriend received positive coverage

Delwin Vriend was given almost completely positive coverage in the two newspapers we examined. In the Globe and Mail he received only positive references. He received the most number of positive mentions of the three parties. Thirty percent of the statements about the three parties went to Delwin Vriend. They were all positive.

Table 1a: Globe and Mail's Descriptions of Major Players in the Vriend Decision
Government of Alberta		Delwin Vriend		Supreme Court
Positive	Negative	Positive	Negative	Positive	Negative
Red-neck reputation a myth	Shame on you Ralph Klein	Former devout member		God Bless the Supreme Court	Courts are wrongfully usurping
	Shame on you Stockwell Day	Unlikely hero		Not about to retreat	Sustained attack
	Government against the people	Self-deprecating and humble		Nation gave judges the role
	Intolerant climate	Very strong Christian		Equal to the task
	Not known for its tolerance on gays	Poster boy for gay rights		Rightly read in
	Waffled on notwithstanding clause	Most Albertans supported him
	Kicked and screamed and whined	Courageous
	Hysteria	Regular Albertan
	Scare-mongering

Alberta given greatest amount of negative descriptions

Both the Globe and Mail and the Calgary Herald gave more negative than positive evaluations of the province of Alberta in the context of this decision. Nine out of ten Globe and Mail and 8 out of 10 Calgary Herald descriptions and opinions of Alberta were negative. For example, in the Globe and Mail Alberta was described as having an intolerant climate, being hysterical, and scare mongering. Delwin Vriend's comment that the Klein government was "against the people" was reported in both newspapers.

Calgary Herald comments were more frequently negative toward the province than were those of the Globe and Mail. The Alberta government, which had "humiliated themselves," was also described as "dragging their heals," and "hateful." The comment by Vriend that the province "kicked and screamed and whined" was repeated by Vriend and by editorial writers three times in the day's paper.

It should be noted that both the Globe and Mail and the Calgary Herald ran several stories and editorials over the week following the decision which expressed differing viewpoints on the issue. The point of this study is to show how the initial media reaction set the tone and enabled the Alberta government to pursue its own agenda.

Supreme Court given mixed assessments

While Vriend was nearly unanimously applauded and the Alberta government nearly universally condemned, the only true debate surrounded the role of the Supreme Court. The Globe and Mail was over twice as likely to support as to condemn the Supreme Court's activism. In contrast, the Calgary Herald was 8 times as likely to reject the Supreme Court's activism.

Where the Calgary Herald's unsigned editorial supported the decision from a "rights and tolerance standpoint" it warned against the "new and alarming standard in judicial activism." In contrast, the Globe and Mail's unsigned editorial pointed to the Vriend decision as proof that Supreme Court activism is needed, saying, "Yesterday the Supreme Court of Canada rightly concluded that the IRPA unreasonably offends the Charter and 'read in' sexual orientation to Alberta's existing legislation." Moreover, the Globe provided over one-half of a page reprinting the majority reasons for ruling against Alberta.

Table 1b: Calgary Herald's Descriptions of Major Players in the Vriend Decision
Government of Alberta		Delwin Vriend		Supreme Court
Positive	Negative	Positive	Negative	Positive	Negative
Wisely capitulated to the court of legal and public opinion	Should be ashamed	Victory	Ingracious [sic] in victory	Proper decision	Meddling
Wild West has been tamed	Disgrace to our province	Well-liked by students and staff		Welcome decision	Not accountable, not elected
Victorious update for Alberta	Dragged their heals	Ecstatic			Attacked families
	Shameful				Cultural war
	Lost opportunity to do the right thing				New alarming standard in judicial activism
	Humiliated itself				No way to run a country
	Hateful				Irritating and potentially dangerous violating of the boundaries of the court
	Failed				Bad law
	Changing the laws won't change attitudes that encourage such vile discrimination				Perversion of the charter
	Kicked and screamed and whined (3)				Inventing rights
	Klein surrendered
	Wild West has been maimed

Conclusion

This case study examined the first day of reaction to the Delwin Vriend decision. Despite the Supreme Court indicating that the legislature has the last word on laws, the Alberta government could not invoke the notwithstanding clause without being portrayed as a constitutional rights abuser. The media examined in this study underlined this thesis in two ways.

First, television signalled approval of judicial activism by its lack of attention to the issue. Both CBC and CTV provided only one story on the Supreme Court decision, which made it appear as though the Supreme Court's decision was not controversial, except with extreme groups. Television news did not portray the Court decision as creating precedent or as infringing on the role of government.

Second, newspapers provided much more negative attention to the Alberta government than to the issue of judicial activism. The Globe and Mail went as far as to say that the Supreme Court was "equal to the task." While the editorial pages of the Calgary Herald were more critical of judicial activism, many columnists condemned the Alberta government's defense of its position.

—Lydia Miljan

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Last Modified: Wednesday, October 20, 1999.