Andrews v Law Society of British Columbia


Andrews v Law Society of British Columbia, 1 SCR 143 is the first Supreme Court of Canada case to deal with section 15 of the Canadian Charter of Rights and Freedoms. In the case, the court outlined a test, sometimes called the "Andrews test", to determine if there has been a prima facie violation of equality rights. This case expanded the application of section 15 of the Charter by adding analogous grounds for discrimination to the extent enumerated grounds.

History

Andrews, a British subject and a permanent resident in Canada, met all the requirements for admission to the provincial bar with the exception he was not a Canadian citizen. Andrews brought a motion to strike down the requirement for citizenship on the grounds it violated section 15 of the Charter.
At trial, Supreme Court of British Columbia held in favour of the Law Society. On appeal to the British Columbia Court of Appeal, the ruling was overturned.

Judgment

The issue 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 of the Charter, and if so, whether it is justified under section 1.
The majority of the court held that section 42 of Barristers and Solicitors Act violated section 15 and it could not be saved under section 1. The majority was written by Wilson J with Dickson CJ and L'Heureux-Dubé J concurring. 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.
The test set out by McIntyre J and adopted by the majority held that claims under section 15 would be assessed based on:
  1. Actual differential treatment,
  2. Based on one of the enumerated prohibited grounds in s 15 or one that is analogous to those grounds,
  3. Which is discriminatory because of an imposed burden or denied benefit.

    Important Figures

List of important figures in the appeal:
Irwin Nathanson, Q.C., and Rhys Davies, for the appellant Law Society of British Columbia.
Joseph Arvay, for the appellant Attorney General of British Columbia.
Elizabeth C. Goldberg and David Dinklecock, for the intervener the Attorney General for Ontario.
Jean-Yves Bernard and Julie Hudon, for the intervener the Attorney General of Quebec.
Alison Scott, for the intervener the Attorney General of Nova Scotia.
Robert G. Richards, for the intervener the Attorney General for Saskatchewan.
Richard F. Taylor, for the intervener the Attorney General for Alberta.
P. B. C. Pepper, Q.C., for the intervener the Federation of Law Societies of Canada.
D. G. Cowper and W. S. Martin, for the respondents.
Mary Eberts and Gwen Brodsky, for the intervener the Women's Legal Education and Action Fund.
J. David Baker, for the intervener the Coalition of Provincial Organizations of the Handicapped.
Steven Barrett, for the interveners the Canadian Association of University Teachers and the Ontario Confederation of University Faculty Associations.

Reasoning

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.
As such, the suggestion to apply the same legal rules to groups or individuals who are "similarly situated" was firmly rejected. Bliss v Canada , 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.
Instead the court concentrated on the prohibition on discrimination.
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 s. 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.

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.
In the 1999 case Law v Canada , 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 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.