A rule which bars an entire class of persons from certain forms of employment, solely on the grounds of a lack of citizenship status and without consideration of educational and professional qualifications or the other attributes or merits of individuals in the group, infringes section 15 equality rights.
Wilson J, joined by Dickson CJ and L'Heureux-Dubé JJ
Concur/dissent
La Forest J
Dissent
McIntyre J, joined by Lamer J
Beetz, Estey and Le Dain JJ took no part in the consideration or decision of the case.
Andrews v Law Society of British Columbia, [1989] 1 SCR 143 is the first Supreme Court of Canada case to deal with the equality rights provided under Section 15 of the Canadian Charter of Rights and Freedoms. British law graduate Mark David Andrews challenged the validity of Section 42 of the Barristers and Solicitors Act contending that the Canadian citizenship requirement for being called to the bar violated Section 15 of the Charter.
The Supreme Court outlined a test, sometimes called the "Andrews test", to determine whether there has been a prima facie violation of equality rights. Andrews further held that discrimination according to grounds analogous to those enumerated in Section 15 could result in a violation of the Charter.
Background
Mark David Andrews (1959–2020) was a British international rower and a graduate of the Faculty of Law at the University of Oxford. In 1983, Andrews relocated to Vancouver with his Canadian spouse, both pursuing articling positions and completing the bar admission courses.[2] While Andrews's spouse was called to the bar, as a permanent resident in Canada, Andrews himself was not.[2] According to Section 42 of British Columbia's Barristers and Solicitors Act the Law Society of British Columbia had the authority to call a person to the bar only if they were a Canadian citizen. However, at that time, the Citizenship Act required applicants for naturalization to meet various qualifications, including a residency requirement of living in Canada for three out of the four previous years. Andrews, who moved to Canada in 1983 did not meet that the requirement.[2]
Section 42 of the Barristers and Solicitors Act provided the following criteria for admission to the British Columbia bar:
Section 42: The benchers may call to the Bar of the Province and admit as solicitor of the Supreme Court
(a) a Canadian citizen with respect to whom they are satisfied that he
(i) is a person of good character and repute and fit to become a barrister and solicitor of the Supreme Court;
(ii) has been enrolled on the books of the society as an articled student;
(iii) has complied with the rules made by the benchers under section 41;
(iv) has, in accordance with the rules, been in actual attendance and served as an articled student of a practising barrister or solicitor for the term that the benchers may by rule prescribe; and…
Supreme Court of British Columbia opinion
Andrews filed a motion to challenge the validity of Section 42 of the Barristers and Solicitors Act, contending that the Canadian citizenship requirement for being called to the bar violated Section 15 of the Charter.[3] He argued that this requirement resulted in the denial of equal treatment under the law for non-Canadian candidates, thereby discriminating against them based on their national origin.[c 1] Notably, British Columbia stood out among other provinces in Canada as it prohibited British subjects from being called to the bar, while most other provinces did not enforce such a restriction.[c 2]
In his decision, Justice Martin Rapson Taylor of the Supreme Court of British Columbia ruled that the citizenship requirement did not infringe upon the equality rights safeguarded by Sections 15 and 7 of the Charter.[c 3] Justice Taylor ruled that the statute did not discriminate because it did not draw an "irrational or irrelevant distinction, or otherwise impose a disadvantage.[c 4] Taylor noted the requirement was rational as those entitled to practise law have "special commitment to the community which citizenship involves", and the delay to become a naturalized citizen provided time to gain knowledge of Canada to practise competently.[c 5] Further, the decision regarding whether citizenship should be a prerequisite for practicing law fell under the jurisdiction of the legislature.[c 3] Because it was not deemed discrimination under Section 15 of the Charter, Section 1 test of reasonable limits was unnecessary, although Taylor noted, if a Section 1 limitation was considered, citizenship would have constituted a reasonable limitation.[c 6]
Andrews filed an appeal to the Taylor decision, arguing Taylor's definition of "discrimination" which included the requirement of "irrationality", which Andrews argued that if found would in fact constitute discrimination under Section 15.[c 7]Joseph Arvay argued the case for the Attorney General of British Columbia.[c 8]
On appeal to the British Columbia Court of Appeal, Justice Beverley McLachlin authored a unanimous opinion overturning the previous ruling.[c 9] McLachlin concluded that there was no compelling justification for the citizenship requirement in order to practice law, rendering it unreasonable, unfair, and a violation of equality rights under Section 15 of the Charter.[c 10]
McLachlin pointed out that the requirement for citizenship was not historically established in British Columbia until 1971, and it was only enforced in two other provinces, and was not a tradition of the British Commonwealth.[c 11] The argument that lawyers needed citizenship to fulfill their role as participants in government was dismissed, with McLachlin referring to the opinion of United States Supreme Court Justice Lewis F. Powell Jr. in re Griffiths (1973) 413 U.S. 717, which stated that lawyers do not become government officials solely by virtue of being lawyers.[c 12]
When evaluating whether the reasonable limits provision in Section 1 of the Charter was applicable, McLachlin determined that the limitation imposed by the citizenship requirement was not reasonable. Specifically, the intended objective served by the requirement was not sufficiently justified, pressing, or substantial.[c 9]
Supreme Court judgment
Proceedings
The problem put to the court was whether the requirement of Canadian citizenship for admission to the British Columbia bar is an infringement upon or denial of the equality rights guaranteed by Section 15(1) of the Charter, and if so, whether it is justified under Section 1.[c 8]
The importance of the case in regards to equality rights saw several interest groups seek and receive intervener status.[4] Gorel Elizabeth Kinersly, an American citizen and permanent resident of Canada articling in British Columbia was added as a co-respondent in the appeal. Kinersly's addition ensured that the appeal would not become moot as Andrews was called to the British Columbia bar in 1986 following the Court of Appeal order, and became a Canadian citizen.[5] Other interveners for the respondent included the Women's Legal Education and Action Fund, the Coalition of Provincial Organizations of the Handicapped, the Canadian Association of University Teachers, and the Ontario Confederation of University Faculty Associations.[4] For the appellant, the Attorney Generals for the provinces of Ontario, Quebec, Nova Scotia, Saskatchewan, and Alberta were granted intervener status, as well as the Federation of Law Societies of Canada.[4] A number of the interveners approached the case with the intent of arguing the merits of equality, but no position of the merits of Andrews or Kinersly's case.[6]
Majority opinion
On February 2, 1989, the Supreme Court issued its decision in favour of Andrews. The majority of the court led by Justice Bertha Wilson with Chief Justice Brian Dickson and Justice Claire L'Heureux-Dubé concurring, held that Section 42 of Barristers and Solicitors Act violated Section 15 of the Charter, and it could not be saved under Section 1.[c 8]
The test set out by McIntyre J and adopted by the majority held that claims under Section 15 would be assessed based on:
Actual differential treatment,
Based on one of the enumerated prohibited grounds in s 15 or one that is analogous to those grounds,
Which is discriminatory because of an imposed burden or denied benefit.[3]
The court first defined a general approach to the equality guarantee. The court stated that the Section is not a general guarantee of equality, rather it is only concerned with equal application of the law. It was further stated that it should be recognized that not all differences in treatment will result in inequality and that identical treatment may result in inequality.
The court was critical of the concept of "similarly situated" which had emerged as the dominate was to address these cases in Canada, rejecting the concept. Similarly situated treats cases that are alike to other like cases, and unalike cases unalike.[6] The court's criticism reevaluated Bliss v Canada (AG), a pre-Charter Supreme Court case where a pregnant woman was denied employment benefits, was considered as an example of the problems with such an approach.[6] The court further argued the "similarly situated" concept could be used to justify the Nuremberg laws.[6]
Instead the court concentrated on the prohibition on discrimination.
Paragraph 280. . . discrimination may be escribed as a distinction, whether intentional or not but based on grounds relating to the personal characteristics of the individual or group which has the effect of imposing burdens, obligations, or disadvantages on such individual or group not imposed on others, or which withholds or limits access to opportunities, benefits, and advantages available to other members of society. Distinctions based on personal characteristics attributed to an individual solely on the basis of association with a group will rarely escape the charge of discrimination, while those based on an individual's merits and capacities will rarely be so classified.[c 13]
The court states the discrimination must be based on an "enumerated or analogous grounds", and the individual seeking to strike down a law must demonstrate the existence of differential treatment based on either of the two grounds. From there the onus shifts to the Crown who must show the law justified under Section 1.
The majority found that the citizenship requirement was not strongly linked to a person's capabilities to practice law, and so found it in violation of Section 1.[3]
Dissenting opinions
In dissent, McIntyre and Lamer JJ disagreed on the point of the Section 1 analysis, believing it would be upheld on the basis of "reasonable limit" and preferred to be deferential to the House of Commons. La Forest J wrote a separate decision. However, all three decisions adopted the Section 15 analysis used by McIntyre J.[3]
Legacy
Andrews was the leading case during the first decade of Section 15 jurisprudence. By holding the phrase "in particular" in Section 15 made the listed grounds non-exhaustive and recognizing citizenship as an analogous ground, the Court opened the door to include other historically marginalized groups that were not explicitly protected under that section such as members of Canada's LGBT community.[3]
In the 1999 case Law v Canada (Minister of Employment and Immigration), the Supreme Court tightened the Andrews test, limiting burdensome differences in treatment to those that a reasonable person would say violated the claimant's dignity as a human being. This position was reversed by the Supreme Court in the 2008 case R v Kapp, back to the original test, but re-adjusted in Quebec (AG) v A in 2013 and again by Kahkewistahaw First Nation v Taypotat in 2015. However, much of the Andrews approach remained the same through these cases.[3]
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