Andrews v. Law Society of British Columbia, 1989 CanLII 2 (SCC), [1989] 1 SCR 143
Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143
The Law Society of British Columbia
and
The Attorney General of British Columbia Appellants
and
The Attorney General for Ontario,
the Attorney General of Quebec,
the Attorney General of Nova Scotia,
the Attorney General for Saskatchewan,
the Attorney General for Alberta,
the Federation of Law Societies of Canada Interveners
v.
Mark David Andrews
and
Gorel Elizabeth Kinersly Respondents
and
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 Interveners
indexed as: andrews v. law society of british columbia
File Nos.: 19955, 19956.
1987: October 5, 6; 1989: February 2.
Present: Dickson C.J. and McIntyre, Lamer, Wilson, Le Dain*, La Forest and L'Heureux-Dubé JJ.
on appeal from the court of appeal of british columbia
Constitutional law -- Charter of Rights -- Equality before and under the law and equal protection and benefit of law -- Citizenship required for call to bar -- Whether or not requirement discriminatory with respect to qualified Canadian residents who are not citizens -- Whether or not requirement justified under s. 1 -- Canadian Charter of Rights and Freedoms, ss. 1, 15(1) --Barristers and Solicitors Act, R.S.B.C. 1979, c. 26, s. 42.
The respondent Andrews, a British subject permanently resident in Canada met all the requirements for admission to the British Columbia bar except that of Canadian citizenship. His action for a declaration that that requirement violated s. 15(1) of the Canadian Charter of Rights and Freedoms was dismissed at trial but allowed on appeal. Kinersly, an American citizen who was at the time a permanent resident of Canada articling in the Province of British Columbia, was added as a co-respondent by order of this Court. The constitutional questions before this Court dealt with: (1) whether the Canadian citizenship requirement for admission to the British Columbia bar infringed or denied the equality rights guaranteed by s. 15(1) of the Charter; (2) if so, whether that infringement was justified by s. 1.
Held:
Section 15(1) of the Charter
Per Dickson C.J. and McIntyre, Lamer, Wilson and L'Heureux-Dubé JJ.: Section 15(1) of the Charter provides for every individual a guarantee of equality before and under the law, as well as the equal protection and equal benefit of the law without discrimination. This is not a general guarantee of equality; its focus is on the application of the law. No problem regarding the scope of the word "law" arose in this case because legislation was under attack.
The "similarly situated should be similarly treated" approach will not necessarily result in equality nor will every distinction or differentiation in treatment necessarily result in inequality. The words "without discrimination" in s. 15 are crucial.
Discrimination is a distinction which, whether intentional or not but based on grounds relating to personal characteristics of the individual or group, has an effect which imposes disadvantages not imposed upon others or which withholds or limits access to 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 classed.
Generally, the principles applied under the Human Rights Acts are equally applicable to questions of discrimination under s. 15(1). However, the Charter requires a two-step approach to s. 15(1). The first step is to determine whether or not an infringement of a guaranteed right has occurred. The second step is to determine whether, if there has been an infringement, it can be justified under s. 1. The two steps must be kept analytically distinct because of the different attribution of the burden of proof; the citizen must establish the infringement of his or her Charter right and the state must justify the infringement.
The grounds of discrimination enumerated in s. 15(1) are not exhaustive. Grounds analogous to those enumerated are also covered and the section may be even broader than that although it is not necessary to answer that question in this case since the ground advanced in this case falls into the analogous category.
The words "without discrimination" require more than a mere finding of distinction between the treatment of groups or individuals. These words are a form of qualifier built into s. 15 itself and limit those distinctions which are forbidden by the section to those which involve prejudice or disadvantage. The effect of the impugned distinction or classification on the complainant must be considered. Given that not all distinctions and differentiations created by law are discriminatory, a complainant under s. 15(1) must show not only that he or she is not receiving equal treatment before and under the law or that the law has a differential impact on him or her in the protection or benefit of the law but must show in addition that the law is discriminatory.
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 s. 15 equality rights. Section 42 of the Barristers and Solicitors Act is such a rule.
Per La Forest J.: The views of McIntyre J. as to the meaning of s. 15(1) were substantially agreed with in so far as relevant to the question of whether or not the impugned provision amounted to discrimination based on "irrelevant personal differences" such as those listed in s. 15 and, traditionally, in human rights legislation. The opening words of s. 15 referring more generally to equality, however, may have a significance that extends beyond protection from discrimination through the application of law. Nevertheless, all legislative classifications need not be rationally supportable before the courts; s. 15 was not intended to be a tool for the wholesale subjection of legislation to judicial scrutiny.
The impugned legislation distinguished the respondents from other persons on the basis of a personal characteristic which shares many similarities with those enumerated in s. 15. Citizenship is typically not within the control of the individual and is, at least temporarily, a characteristic of personhood which is not alterable by conscious action and which in some cases is not alterable except on the basis of unacceptable costs. Non-citizens are a group of persons who are relatively powerless politically and whose interests are likely to be compromised by legislative decisions.
Citizenship, while properly required for certain types of legitimate governmental objectives, is generally irrelevant to the legitimate work of government in all but a limited number of areas. Legislating citizenship as a basis for distinguishing between persons, here for conditioning access to the practice of a profession, harbours the potential for undermining the essential or underlying values of a free and democratic society embodied in s. 15. Legislative conditioning on the basis of citizenship may, in certain circumstances, be acceptable in the free and democratic society that is Canada, but that legislation must be justified by the government under s. 1 of the Charter.
Per Dickson C.J. and Wilson and L'Heureux-Dubé JJ.: The legislation at issue was not justified under s. 1.
The objective of the legislation was not sufficiently pressing and substantial to warrant overcoming the rights protected by s. 15. Given that s. 15 is designed to protect those groups who suffer social, political and legal disadvantage in our society, the burden resting on government to justify the type of discrimination against such groups is appropriately an onerous one.
The proportionality test was not met. The requirement of citizenship is not carefully tailored to achieve the objective that lawyers be familiar with Canadian institutions and customs and may not even be rationally connected to it. Most citizens, natural-born or otherwise, are committed to Canadian society but that commitment is not ensured by citizenship. Conversely, non-citizens may be deeply committed to our country. Even if lawyers do perform a governmental function, citizenship does not guarantee that they will honourably and conscientiously carry out their public duties: that is a function of their being good lawyers, not of citizenship.
Per La Forest J.: While in general agreement with McIntyre J. about how the legislation must be approached under s. 1 in balancing the right infringed by the legislation against its objectives, the legislation fails to meet the test of proportionality.
Citizenship neither ensures the objectives of familiarity with Canadian institutions and customs or of commitment to Canadian society. Restriction of access to the profession to citizens is over-inclusive. Less drastic methods for achieving the desired objectives are available.
While certain state activities may, for both symbolic and practical reasons, be confined to those who are full members of our political society, such restriction should not apply to the legal profession as a whole. The practice of law is primarily a private profession. A lawyer working for a private client does not play a role in the administration of justice requiring citizenship. Ordinary lawyers are not privy to government information and there are rules to restrict lawyers from obtaining confidential governmental information. Their situation differs from those involved in government policy‑making or administration.
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