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Andrews v Law Society of British Columbia

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FactsEdit

Andrews was a British citizen and a lawyer. He moved to Canada and attempted to join the Law Society of British Columbia. He passed all of the necessary tests for individuals with international degrees, however he was not allowed to become a member because s. 42 of the Barristers and Solicitors Act (now replaced with the Legal Profession Act) limited membership to Canadian citizens. He sued the Law Society claiming that this provision is contrary to s. 15 of the Charter. The Law Society was successful at trial but this was overturned on appeal.

IssueEdit

  1. Does s. 42 of the Act violate s. 15 of the Charter, and, if it does, is it justified by s. 1?

DecisionEdit

Appeal dismissed.

ReasonsEdit

The general issue that must first be decided in this case is how something can violate s. 15 of the Charter – what must a law possess in order to infringe upon the rights guaranteed, and which rights are protected? McIntyre gives the judgment setting out this stipulation - he first says that it is important to realize that equality does not mean treating "like groups alike, and differing groups differently" as stated by McLachlin in the Court of Appeal, as this would allow for entire groups to be discriminated against. What is truly meant by protecting equality is that it must be ensured that everyone is treated fairly under the law, and is not treated differently because of a characteristic that has no legal bearing.

He then proceeds to define how discrimination is proven in a Charter claim, and how s.1 must relate to s.15. He rejects the view that any differential treatment results in discrimination that violates s.15 (Hogg's argument) as this trivializes the values of the Charter. He also reject’s McLachlin's view that the reasonableness and fairness of the legislation must be considered as this assigns too minor a role to s.1. He states that in order for something to be "discrimination" under s.15 three things must be established:

  1. differential treatment,
  2. an enumerated or analogous ground (open for interpretation), and
  3. that the legislation imposed a disadvantage.

All of the judges accept this as the test. If these are established, then the Oakes test must be used to see if the discrimination is permitted under s.1.

The judges all agree that s.42 violates s.15 of the Charter as it treats non-citizens differently on an analogous ground to those enumerated in the Charter and that it imposes a disadvantage on them as they cannot work as a lawyer. Everyone except for McIntyre agrees that this violation is not justified by s.1. The Law Society puts forward three arguments attempting to justify the provision:

  1. lawyers should be citizens to ensure that they are familiar with Canadian customs,
  2. citizenship attaches a real connection to Canada, and
  3. lawyers should be citizens as they play a role in the governance of our country.

The majority find that these are not saved by s.1 as they can be established by other means (tests to ensure non-citizen lawyers understand Canadian customs), being a citizen doesn’t necessarily mean you are connected to the country, and finally that lawyers do not really play a role in governing our country.

McIntyre, dissenting in part, believes that lawyers do play a role in governing our country, and their duties are distinct and allow them to access information that could reasonably be desired to remain among citizens. Further, he states that this is a policy decision to be left to the legislature.

La Forest agrees with the majority, but says that Charter discrimination should not only apply to people who are discriminated against by laws, but to people discriminated against in general. He also talks at length about how to argue an analogous ground – things that are generally out of your control, and that you should not be expected to change.

RatioEdit

In order for a law to violate s. 15(1) of the Charter three things must be established:

  1. differential treatment,
  2. differential treatment made on the basis of an enumerated or analogous (open to interpretation) ground, and
  3. the effect of the legislation imposes a disadvantage.

If these are satisfied, it must be determined if the law is justified by s. 1 using the Oakes test.

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