Andrews v Law Society of British Columbia, [1989] 1 SCR 143 is the first Supreme Court of Canada case to deal with the equality rights provided under Section 15 of the Canadian Charter of Rights and Freedoms. British law graduate Mark David Andrews challenged the validity of Section 42 of the Barristers and Solicitors Act contending that the Canadian citizenship requirement for being called to the bar violated Section 15 of the Charter.
The Supreme Court outlined a test, sometimes called the "Andrews test", to determine whether there has been a prima facie violation of equality rights. Andrews further held that discrimination according to grounds analogous to those enumerated in Section 15 could result in a violation of the Charter.
Background
Mark David Andrews (1959–2020) was a British international rower and a graduate of the Faculty of Law at the University of Oxford. In 1983, Andrews relocated to Vancouver with his Canadian spouse, both pursuing articling positions and completing the bar admission courses. While Andrews's spouse was called to the bar, as a permanent resident in Canada, Andrews himself was not. Notably, British Columbia stood out among other provinces in Canada as it prohibited British subjects from being called to the bar, while most other provinces did not enforce such a restriction.
In his decision, Justice Martin Rapson Taylor of the Supreme Court of British Columbia ruled that the citizenship requirement did not infringe upon the equality rights safeguarded by Sections 15 and 7 of the Charter. Justice Taylor ruled that the statute did not discriminate because it did not draw an "irrational or irrelevant distinction, or otherwise impose a disadvantage. Taylor noted the requirement was rational as those entitled to practise law have "special commitment to the community which citizenship involves", and the delay to become a naturalized citizen provided time to gain knowledge of Canada to practise competently. Further, the decision regarding whether citizenship should be a prerequisite for practicing law fell under the jurisdiction of the legislature.
British Columbia Court of Appeal opinion
thumb|left|Andrew's appeal was heard by future [[Chief Justice of Canada Beverley McLachlin.]]
Andrews filed an appeal to the Taylor decision, arguing Taylor's definition of "discrimination" which included the requirement of "irrationality", which Andrews argued that if found would in fact constitute discrimination under Section 15. Joseph Arvay argued the case for the Attorney General of British Columbia.
On appeal to the British Columbia Court of Appeal, Justice Beverley McLachlin authored a unanimous opinion overturning the previous ruling. McLachlin concluded that there was no compelling justification for the citizenship requirement in order to practice law, rendering it unreasonable, unfair, and a violation of equality rights under Section 15 of the Charter.
McLachlin pointed out that the requirement for citizenship was not historically established in British Columbia until 1971, and it was only enforced in two other provinces, and was not a tradition of the British Commonwealth. The argument that lawyers needed citizenship to fulfill their role as participants in government was dismissed, with McLachlin referring to the opinion of United States Supreme Court Justice Lewis F. Powell Jr. in re Griffiths (1973) 413 U.S. 717, which stated that lawyers do not become government officials solely by virtue of being lawyers.
When evaluating whether the reasonable limits provision in Section 1 of the Charter was applicable, McLachlin determined that the limitation imposed by the citizenship requirement was not reasonable. Specifically, the intended objective served by the requirement was not sufficiently justified, pressing, or substantial. Other interveners for the respondent included 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. For the appellant, the Attorney Generals for the provinces of Ontario, Quebec, Nova Scotia, Saskatchewan, and Alberta were granted intervener status, as well as the Federation of Law Societies of Canada. A number of the interveners approached the case with the intent of arguing the merits of equality, but no position of the merits of Andrews or Kinersly's case.
Majority opinion
On February 2, 1989, the Supreme Court issued its decision in favour of Andrews. The majority of the court led by Justice Bertha Wilson with Chief Justice Brian Dickson and Justice Claire L'Heureux-Dubé concurring, held that Section 42 of Barristers and Solicitors Act violated Section 15 of the Charter, and it could not be saved under Section 1.
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 Section 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.
References
;Citations
;Cases
;Bibliography