Inside McClung J.A.'s Closet in Vriend v. Alberta: The Indignity of Misrecognition, the Tool of Oppressive Privacy, and an Ideology of Equality


  • James R. Olchowy



Addressing recent expressions of concern about the Supreme Court of Canada's alleged inability to articulate a principled and coherent philosophy of the Charter, the author scrutinizes Vriend v. Alberta, a controversial gay-rights case in which starkly antithetical philosophical approaches to the Charter come into focus. While differentiating theoretically between modern and postmodern paradigms of justice, and contracting McClung J.A. 's majority judgment for the Alberta Court of Appeal with the ruling of the Supreme Court of Canada in Vriend, the author argues that the Supreme Court — guided by the Charter's equality provisions — has begun to articulate a postmodern philosophy of the Charter centred on the idea of inclusive justice. This emerging philosophy of inclusive justice is premised on the notion that the law works to produce the reality in which we live. not merely to reflect it. Whereas, in Vriend, McClung J.A. 's philosophy of the Charter adheres to the assumptions of modern jurisprudence and the concepts of classical liberalism — in particular, concepts such as abstract individualism, the private/public divide, and formal equality — the Supreme Court's philosophy in Vriend is coloured by postmodern insights that cogently impugn McClung J.A. 's traditional assumptions and concepts. What the Supreme Court's position makes clear is that, by resorting to a rhetoric of misrecognition, an ideology of privacy, and an ideology of equality, McClung J.A. tellingly exposes the limitations of his Charter philosophy, which actually reinforces and perpetuates the discriminatory treatment and oppression of sexual minorities in Canadian society. Juxtaposed with McClung J.A. 's questionable interpretive approach is the Supreme Court's emphasis in Vriend on achieving substantive equality — an emphasis that the author construes as underscoring how the Supreme Court has actually gone some distance toward articulating a credible postmodern philosophy of the Charter.