Case Summary: Andrews V. Law Society of British Columbia
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 Canadian Charter of Right and Freedoms.
And if so, whether it is justified under Section 1 of the Canadian Charter of Rights and Freedoms.
One Mr. Andrews had achieved all of the qualifications to practice law, but was a citizen of the United Kingdom. The law required that he be a Canadian citizen to completely qualify as a lawyer. He was denied entry to the legal profession on that basis. Andrews argued that he was not being treated equally as many other jobs in Canada did not have a citizenship requirement. This case is noteworthy as because it established the ground rules for future equality decisions by the courts. Kinersly, an American citizen who was at the time a permanent resident of Canada articling in the Province of British Columbia, was also added as a co-respondent by order of the trial Court.
Andrews lost at the trial. The judge ruled that being a citizen involved a special commitment to the community at large, requiring a familiarity with the country, and thus citizenship was a personal characteristic relevant to the practice of law. Further the legislation being challenged was rationally based and reasonable under the circumstances and thus did not violate the equality provisions of the Constitution. Hence trial court held that the equality provisions of the Charter were not offended. Against this judgment Andrews appealed to the British Columbia Court of Appeal.
The British Columbia Court of Appeal overturned the trial judge’s decision. It ruled that the requirement of citizenship to practice law was unreasonable and unfair and that it did violate the Canadian Charter of Rights and Freedoms equality provisions. The court held that the “legislators, judges, civil servants and policemen" all play key roles in performing government functions and could be required to be Canadian, but the practice of law was a private profession that did not require that distinction. Hence the requirement of citizenship was discriminatory. Nor could this citizenship requirement be saved under section 1 of the Charter. This was not an important enough government objective to override a Charter right. The Law Society of British Columbia appealed against this judgment in the Supreme Court of Canada.
On February 2, 1989 in Andrews v. Law Society of British Columbia, the Supreme Court of Canada (S.C.C.) ruled on whether the requirement of Canadian citizenship for a specific job in Canada infringed or denied the equality rights guaranteed by section 15(1) of the Canadian Charter of Rights and Freedoms; and if it did, whether it was a reasonable limit on that right justified by section 1. In a 6-2 decision the Supreme Court of Canada agreed with the Appellate Court. The court held that the Law Society's rule violated section 15(1) and it could not be saved under section 1 of the Canadian Charter of Rights and Freedoms. Chief Justice Dickson, writing for the 5 member majority, ruled that a two step analysis was required to determine breaches of the equality provisions of the Charter:
Firstly, the court had to determine whether or not an infringement of a Charter right had occurred;
Secondly, it had to decide if there has been an infringement, whether it could be justified under section 1.
For our reference, section 15(1) of the Canadian Charter of Rights and Freedoms says:
15. (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.
And section 1 of the Canadian Charter of Rights and Freedoms says:
1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.
Justice McIntyre also set out a two-part test with respect to section 15 equality rights:
“(1) that the government action must have been made out to achieve a desirable social objective; and
(2) the equality right infringed in the process of pursuing that objective must be examined, by evaluating its “importance" to those whose rights were limited; this evaluation is then balanced against a judgment as to whether the limits achieve the objective."
In Andrews v. Law Society of British Columbia the court said that the key words in section 15(1) of the Charter were “without discrimination." Here there was discrimination in the sense that an entire class of people who could seek ordinary employment was barred from doing so in a specific instance. The court said that 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 the 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 merit and capacities will rarely be so classed. The court also mentioned that the words “without discrimination" are also of great importance. The words require more than a mere finding of distinctions which are forbidden by the section to those which involve prejudice or disadvantage. The effect of the impugned distinction or classification on the complaint must be considered. Given that not all distinctions and differentiations created by law are discriminatory, a complaint under section 15(1) must show not only that he or she is not receiving equal treatment before and under 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.
The court ruled that a rule which bars an entire class of persons form 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(1) of equality rights.
Judge LaForest also agreed with the result, but felt that a “personal characteristic" had been singled out. In his view this was discrimination which in turn breached s. 15 of the Charter and this was not the desirable social objective.
The next question was whether or not the requirement of Canadian citizenship was a “reasonable limitation" provision under s. 1 of the Charter. The judges disagreed amongst themselves. Three judges ruled that it could not be saved as the citizenship requirement was not sufficiently crucial and substantial to overcome the Charter breach. The government had not proven that a citizenship requirement was necessary to the practice of law. They were joined by a fourth judge in determining that the context of the legislation was not proportional to its objective. The main objective was to ensure that lawyers were familiar with Canada’s court and government systems. There were other ways of ensuring that the lawyers are familiar with the Canadian law. As a result the court overturned the legislation.
In this case 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" ("similarly situated test" where likes a treated alike and dislikes differently) was firmly rejected by the court.
Justice Wilson mentioned that Section 42 of the Barristers and Solicitors Act, 1979 differentiates between citizens and non-citizens with respect to admission to the practice of law. This distinction denies admission to non-citizens who are in all other respects qualified. While the requirement of citizenship applies only to those non-citizens who are permanent residents, it has the effect of requiring those permanent residents to wait for a minimum of three years from the date of establishing their permanent residence before they can be considered for admission to the Bar. It imposes a burden, in the form of some delay in obtaining admission, on permanent residents who have acquired all or some of their legal training abroad.
The court mentioned that while certain state activities may be confined to those who are full members of our political society for both symbolic and practical reasons 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. The Judges held that a rule which bars an entire class of persons from certain forms of employment solely on the ground that they are not Canadian citizens violates the equality rights of that class and discriminates against them on the ground of their personal characteristics, i.e., their non-citizen status and therefore is in violation with section 15(1) of the Canadian Charter of Rights and Freedoms.