S.C.C. Interprets Section 15 of the Canadian Charter

Andrews v. Law Society of British Columbia (1989), 10 C.H.R.R. D/5719 (S.C.C.)

This is the first decision by the Supreme Court of Canada interpreting s. 15 of the Canadian Charter of Rights and Freedoms. It is an appeal by the Law Society of British Columbia from a decision of the B.C. Court of Appeal which found that the requirement that lawyers be Canadian citizens violated s. 15 of the Charter.

Mark David Andrews met all the requirements for admission to the British Columbia bar except that he was not a Canadian citizen. When he was refused admission, he challenged the citizenship requirement on the grounds that it violated his right to equality.

McIntyre J., writing the majority decision on the interpretation of s. 15, finds that discrimination is a distinction which imposes disadvantages because of the personal characteristics of an individual or group. Also, the impact of a law on groups, not simply the law's purpose, must be taken into account when considering whether violations of s. 15 have occurred.

The principles applied to the interpretation of human rights Acts are applicable to the interpretation of s. 15 of the Charter,and human rights cases provide illumination of s. 15's meaning. By contrast, Canadian Bill of Rights cases dealt with narrower guarantees of equality than those in the Charter and do not provide help in the interpretation of s. 15.

The Court rejects tests applied in the lower court decisions in this case, namely the "similarly situate" test and the "reasonableness" test. Equality is not simply a matter of treating likes alike and unlikes unlike, as the "similarly situate" test posits. Not every difference in treatment between individuals under the law will result in inequality and, as well, identical treatment may frequently produce serious inequality. The "similarly situate" test cannot be accepted as a fixed rule or formula for the resolution of equality questions.

The "reasonableness" test, developed by the B.C. Court of Appeal in its decision in this case, asserts that only discrimination that is unreasonable or unfair violates s. 15. The Supreme Court rejects this test on the grounds that it does not keep the analysis of equality issues in s. 15 distinct from the analysis of reasonable limits which belongs under s. 1. These two analyses must be kept separate and the onus is on government under s. 1 to prove that any limits on equality are reasonable.

The Court finds that s. 15, as well as protecting individuals and groups from discrimination on the basis of the named grounds, also protects them from discrimination on grounds which are not named but which are analogous to those named. Citizenship is considered an analogous ground, and s. 15 therefore protects Andrews and others from discrimination because of citizenship.

The majority of the Court finds that the requirement of citizenship for admission to the B.C. bar violates s. 15 and is not a reasonable limit within the meaning of s. 1 of the Charter.The objective of the legislation is not sufficiently pressing and substantial to warrant overriding s. 15 rights. The requirement of citizenship does not guarantee that lawyers will be familiar with Canadian institutions and customs and may not even be rationally connected to it. Since the purpose of s. 15 is to protect those groups who experience social, political and legal disadvantages, the burden on government to justify discrimination must be an onerous one.

McIntyre and Lamer JJ. dissent on the outcome, finding that the citizenship requirement violates s. 15, but is a reasonable limit under s. 1 because of the importance of the legal profession in the government of the country.

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