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The Law Society of British Columbia and The Attorney General of British Columbia v Mark David Andrews and Gorel Elizabeth Kinersly
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October 5, 6, 1987
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February 2, 1989
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{Link without Title} 1 SCR 143
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19956
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19955
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1987-1988
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Wilson J
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Dickson CJ and L'Heureux-Dubé JJ
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La Forest
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McIntyre J
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Lamer J
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Andrews, a
British subject permanently resident in Canada, met all the requirements for admission to the provincial bar with the exception that he was not a Canadian citizen. Andrews brought a motion to strike down the requirement for citizenship on the grounds it violated ''s. 15'' of the Charter.
At the Trial level,
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.
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 ''s. 15(1)'' of the Charter. And if so, whether it is justified under ''s. 1''.
The court held that the Law Society's rule violated ''s. 15'' and it could not be saved under ''s. 1''. The majority was written by Wilson J. with Dickson C.J. and L'Heureux-Dubé J. concurring.
In dissent McIntyre J. and Lamer J. disagreed on the point of the ''s. 1'' analysis, believing that it would be upheld on the basis of "reasonable limit". The opinion on the "test", however, was unanimous.
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. The case of
Bliss V. Canada , a pre-Charter SCC 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.
. . . discrimination may be described as a distinction, whether intentional or not but based on grounds relating to the personal characteristics of the individual or group which has the effect of imposing burdens, obligations, or disadvantages on such individual or group not imposed on others, or which withholds or limits access to opportunities, benefits, and advantages available to other members of 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 merits and capacities will rarely be so classified.
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''.
