Andrews v. Law Society of British Columbia

Andrews v. Law Society of British Columbia
Collection
Supreme Court Judgments
Date
1989-02-02
Report
[1989] 1 SCR 143
Case number
19955, 19956
Judges
Dickson, Robert George Brian; McIntyre, William Rogers; Lamer, Antonio; Wilson, Bertha; Le Dain, Gerald Eric; La Forest, Gérard V.; L'Heureux-Dubé, Claire
On appeal from
British Columbia
Subjects
Constitutional law
Notes
SCC Case Information: 19956, 19955
Decision Content
Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143
The Law Society of British Columbia
and
The Attorney General of British Columbia Appellants
and
The Attorney General for Ontario,
the Attorney General of Quebec,
the Attorney General of Nova Scotia,
the Attorney General for Saskatchewan,
the Attorney General for Alberta,
the Federation of Law Societies of Canada Interveners
v.
Mark David Andrews
and
Gorel Elizabeth Kinersly Respondents
and
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 Interveners
indexed as: andrews v. law society of british columbia
File Nos.: 19955, 19956.
1987: October 5, 6; 1989: February 2.
Present: Dickson C.J. and McIntyre, Lamer, Wilson, Le Dain*, La Forest and L'Heureux-Dubé JJ.
on appeal from the court of appeal of british columbia
Constitutional law -- Charter of Rights -- Equality before and under the law and equal protection and benefit of law -- Citizenship required for call to bar -- Whether or not requirement discriminatory with respect to qualified Canadian residents who are not citizens -- Whether or not requirement justified under s. 1 -- Canadian Charter of Rights and Freedoms, ss. 1 , 15(1) --Barristers and Solicitors Act, R.S.B.C. 1979, c. 26, s. 42.
The respondent Andrews, a British subject permanently resident in Canada met all the requirements for admission to the British Columbia bar except that of Canadian citizenship. His action for a declaration that that requirement violated s. 15(1) of the Canadian Charter of Rights and Freedoms was dismissed at trial but allowed on appeal. Kinersly, an American citizen who was at the time a permanent resident of Canada articling in the Province of British Columbia, was added as a co-respondent by order of this Court. The constitutional questions before this Court dealt with: (1) whether the Canadian citizenship requirement for admission to the British Columbia bar infringed or denied the equality rights guaranteed by s. 15(1) of the Charter ; (2) if so, whether that infringement was justified by s. 1 .
Held:
Section 15(1) of the Charter
Per Dickson C.J. and McIntyre, Lamer, Wilson and L'Heureux-Dubé JJ.: Section 15(1) of the Charter provides for every individual a guarantee of equality before and under the law, as well as the equal protection and equal benefit of the law without discrimination. This is not a general guarantee of equality; its focus is on the application of the law. No problem regarding the scope of the word "law" arose in this case because legislation was under attack.
The "similarly situated should be similarly treated" approach will not necessarily result in equality nor will every distinction or differentiation in treatment necessarily result in inequality. The words "without discrimination" in s. 15 are crucial.
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 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 classed.
Generally, the principles applied under the Human Rights Acts are equally applicable to questions of discrimination under s. 15(1) . However, the Charter requires a two-step approach to s. 15(1) . The first step is to determine whether or not an infringement of a guaranteed right has occurred. The second step is to determine whether, if there has been an infringement, it can be justified under s. 1 . The two steps must be kept analytically distinct because of the different attribution of the burden of proof; the citizen must establish the infringement of his or her Charter right and the state must justify the infringement.
The grounds of discrimination enumerated in s. 15(1) are not exhaustive. Grounds analogous to those enumerated are also covered and the section may be even broader than that although it is not necessary to answer that question in this case since the ground advanced in this case falls into the analogous category.
The words "without discrimination" require more than a mere finding of distinction between the treatment of groups or individuals. These words are a form of qualifier built into s. 15 itself and limit those distinctions which are forbidden by the section to those which involve prejudice or disadvantage. The effect of the impugned distinction or classification on the complainant must be considered. Given that not all distinctions and differentiations created by law are discriminatory, a complainant under s. 15(1) must show not only that he or she is not receiving equal treatment before and under the law 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.
A rule which bars an entire class of persons from 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 s. 15 equality rights. Section 42 of the Barristers and Solicitors Act is such a rule.
Per La Forest J.: The views of McIntyre J. as to the meaning of s. 15(1) were substantially agreed with in so far as relevant to the question of whether or not the impugned provision amounted to discrimination based on "irrelevant personal differences" such as those listed in s. 15 and, traditionally, in human rights legislation. The opening words of s. 15 referring more generally to equality, however, may have a significance that extends beyond protection from discrimination through the application of law. Nevertheless, all legislative classifications need not be rationally supportable before the courts; s. 15 was not intended to be a tool for the wholesale subjection of legislation to judicial scrutiny.
The impugned legislation distinguished the respondents from other persons on the basis of a personal characteristic which shares many similarities with those enumerated in s. 15. Citizenship is typically not within the control of the individual and is, at least temporarily, a characteristic of personhood which is not alterable by conscious action and which in some cases is not alterable except on the basis of unacceptable costs. Non-citizens are a group of persons who are relatively powerless politically and whose interests are likely to be compromised by legislative decisions.
Citizenship, while properly required for certain types of legitimate governmental objectives, is generally irrelevant to the legitimate work of government in all but a limited number of areas. Legislating citizenship as a basis for distinguishing between persons, here for conditioning access to the practice of a profession, harbours the potential for undermining the essential or underlying values of a free and democratic society embodied in s. 15. Legislative conditioning on the basis of citizenship may, in certain circumstances, be acceptable in the free and democratic society that is Canada, but that legislation must be justified by the government under s. 1 of the Charter .
Section 1 of the Charter
Per Dickson C.J. and Wilson and L'Heureux-Dubé JJ.: The legislation at issue was not justified under s. 1 .
The objective of the legislation was not sufficiently pressing and substantial to warrant overcoming the rights protected by s. 15. Given that s. 15 is designed to protect those groups who suffer social, political and legal disadvantage in our society, the burden resting on government to justify the type of discrimination against such groups is appropriately an onerous one.
The proportionality test was not met. The requirement of citizenship is not carefully tailored to achieve the objective that lawyers be familiar with Canadian institutions and customs and may not even be rationally connected to it. Most citizens, natural-born or otherwise, are committed to Canadian society but that commitment is not ensured by citizenship. Conversely, non-citizens may be deeply committed to our country. Even if lawyers do perform a governmental function, citizenship does not guarantee that they will honourably and conscientiously carry out their public duties: that is a function of their being good lawyers, not of citizenship.
Per La Forest J.: While in general agreement with McIntyre J. about how the legislation must be approached under s. 1 in balancing the right infringed by the legislation against its objectives, the legislation fails to meet the test of proportionality.
Citizenship neither ensures the objectives of familiarity with Canadian institutions and customs or of commitment to Canadian society. Restriction of access to the profession to citizens is over-inclusive. Less drastic methods for achieving the desired objectives are available.
While certain state activities may, for both symbolic and practical reasons, be confined to those who are full members of our political society, 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.
Per McIntyre and Lamer JJ. (dissenting): The citizenship requirement is reasonable and sustainable under s. 1 given the importance of the legal profession in the government of the country. The measure was not disproportionate to the object to be attained. Non-citizens are encouraged to become citizens and the maximum delay imposed upon the non-citizen from the date of acquisition of permanent resident status is three years. It is reasonable to expect that the newcomer who seeks to gain the privileges and status within the land and the right to exercise the great powers that admission to the practice of law will give should accept citizenship and its obligations as well as its advantages and benefits.
Cases Cited
By Wilson J.
Referred to: United States v. Carolene Products Co., 304 U.S. 144 (1938); R. v. Oakes, [1986] 1 S.C.R. 103; R. v. Edwards Books and Art Ltd., [1986] 2 S.C.R. 713; Re Dickenson and Law Society of Alberta (1978), 84 D.L.R. (3d) 189.
By La Forest J.
Referred to: Buck v. Bell, 274 U.S. 200 (1927); Union Colliery Company of British Columbia v. Bryden, [1899] A.C. 580; Kask v. Shimizu, [1986] 4 W.W.R. 154; Fontiero v. Richardson, 411 U.S. 677 (1973); Re Howard, [1976] 1 N.S.W.L.R. 641; In re Griffiths, 413 U.S. 717 (1973); Reyners v. The Belgian State, [1974] 2 Common Market Law R. 305.
By McIntyre J. (dissenting as to the application of s. 1 )
Referred to: Dennis v. United States, 339 U.S. 162 (1950); R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295; Reference Re Family Benefits Act (1986), 75 N.S.R. (2d) 338; Reference Re Use of French in Criminal Proceedings in Saskatchewan (1987), 44 D.L.R. (4th) 16; Smith, Kline & French Laboratories Ltd. v. Canada (Attorney General), [1987] 2 F.C. 359; R. v. Ertel (1987), 35 C.C.C. (3d) 398; R. v. Gonzales (1962), 132 C.C.C. 237; R. v. Drybones, [1970] S.C.R. 282; Bliss v. Attorney General of Canada, [1979] 1 S.C.R. 183; Mahe v. Alta. (Gov't) (1987), 54 Alta. L.R. (2d) 212; Reference re Public Service Employee Relations Act (Alta.), [1987] 1 S.C.R. 313; Attorney General of Canada v. Lavell, [1974] S.C.R. 1349; Reference re an Act to Amend the Education Act (1986), 53 O.R. (2d) 513; Ontario Human Rights Commission and O'Malley v. Simpsons-Sears Ltd., [1985] 2 S.C.R. 536; Canadian National Railway Co. v. Canada (Canadian Human Rights Commission), [1987] 1 S.C.R. 1114; Hunter v. Southam Inc., [1984] 2 S.C.R. 145; Bhinder v. Canadian National Railway Co., [1985] 2 S.C.R. 561; MacKay v. The Queen, [1980] 2 S.C.R. 370; Belgian Linguistic Case (No. 2) (1968), 1 E.H.R.R. 252; R. v. Oakes, [1986] 1 S.C.R. 103; R. v. Edwards Books and Art Ltd., [1986] 2 S.C.R. 713; United States v. Carolene Products Co., 304 U.S. 144 (1938); Graham v. Richardson, 403 U.S. 365 (1971).
Statutes and Regulations Cited
Barristers and Solicitors Act, R.S.B.C. 1979, c. 26, s. 42.
Canadian Bill of Rights, R.S.C. 1970, App. III, s. 1(b).
Canadian Charter of Rights and Freedoms, ss. 1 , 2 (a), 7 , 15(1) , (2) , 25 , 27 , 32 .
Canadian Citizenship Act, S.C. 1946, c. 15.
Canadian Human Rights Act, S.C. 1976-77, c. 33, s. 10.
Constitution Act, 1982, s. 52 .
Constitution of the United States of America, 14th Amendment.
Human Rights Act, S.M. 1974, c. 65, s. 6(7).
Human Rights Code, 1981, S.O. 1981, c. 53, s. 17.
Human Rights Code, R.S.B.C. 1979, c. 186, ss. 1, 22.
Immigration Act, S.C. 1910, c. 27.
Indian Act, R.S.C. 1970, c. I-6, s. 12(1)(b).
Individual's Rights Protection Act, R.S.A. 1980, c. I-2, s. 38.
Racial Discrimination Act, 1944, S.O. 1944, c. 51.
Saskatchewan Bill of Rights Act, 1947, S.S. 1947, c. 35.
Solicitors (Amendment) Act 1974 (U.K.), 1974, c. 26, s. 1.
Unemployment Insurance Act, 1971, S.C. 1970‑71‑72, c. 48.
Authors Cited
Ely, John Hart. Democracy and Distrust. Cambridge, Mass.: Harvard University Press, 1980.
Ethica Nichomacea, trans. W. Ross, Book V3, at p. 1131a-6 (1925).
European Convention on Human Rights, 23 U.N.T.S. 222, art. 14.
Head, Ivan L. "The Stranger in Our Midst: A Sketch of the Legal Status of the Alien in Canada", [1964] Can. Yearbook of International Law 107.
Hogg, Peter W. Constitutional Law of Canada, 2nd ed. Toronto: Carswells, 1985.
Lenoir, Robert L. "Citizenship as a Requirement for the Practice of Law in Ontario" (1981), 13 Ottawa Law Rev. 527.
Lepofsky, M. David and Hart Schwartz. "Case Note" (1988), 67 Can. Bar Rev. 115.
Mill, John Stuart. On Liberty and Considerations on Representative Government. Edited by R. B. McCallum. Oxford: B. Blackwell, 1946.
Schaar, John H. "Equality of Opportunity and Beyond," in J. Roland Pennock and John W. Chapman, eds., Nomos IX: Equality. New York: Atherton Press, 1967.
Tarnopolsky, Walter Surma. Discrimination and the Law, 2nd ed. Revised by William F. Pentney. Don Mills, Ont.: De Boo, 1985.
Tussman, Joseph and Jacobus tenBroek. "The Equal Protection of Laws" (1949), 37 Calif. L. Rev. 341.
APPEAL from a judgment of the British Columbia Court of Appeal (1986), 2 B.C.L.R. 305, 27 D.L.R. (4th) 600, [1986] 4 W.W.R. 474, allowing an appeal from a judgment of Taylor J. (1985), 66 B.C.L.R. 363, 22 D.L.R. (4th) 9, [1986] 1 W.W.R. 252. Appeal dismissed, McIntyre and Lamer JJ. dissenting. The first constitutional question should be answered in the affirmative; the second in the negative.
Irwin Nathanson, Q.C., and Rhys Davies, for the appellant Law Society of British Columbia.
Joseph Arvay, for the appellant Attorney General of British Columbia.
Elizabeth C. Goldberg and David Lepofsky, for the intervener the Attorney General for Ontario.
Jean-Yves Bernard and Julie Hudon, for the intervener the Attorney General of Quebec.
Alison Scott, for the intervener the Attorney General of Nova Scotia.
Robert G. Richards, for the intervener the Attorney General for Saskatchewan.
Richard F. Taylor, for the intervener the Attorney General for Alberta.
P. B. C. Pepper, Q.C., for the intervener the Federation of Law Societies of Canada.
D. G. Cowper and W. S. Martin, for the respondents.
Mary Eberts and Gwen Brodsky, for the intervener the Women's Legal Education and Action Fund.
J. David Baker, for the intervener the Coalition of Provincial Organizations of the Handicapped.
Steven Barrett, for the interveners the Canadian Association of University Teachers and the Ontario Confederation of University Faculty Associations.
//Wilson J.//
The judgment of Dickson C.J. and Wilson and L'Heureux-Dubé JJ. was delivered by
WILSON J. -- I have had the benefit of the reasons of my colleague, Justice McIntyre, and I am in complete agreement with him as to the way in which s. 15(1) of the Canadian Charter of Rights and Freedoms should be interpreted and applied. I also agree with my colleague as to the way in which s. 15(1) and s. 1 of the Charter interact. I differ from him, however, on the application of s. 1 to this particular case.
As my colleague points out, s. 42 of the Barristers and Solicitors Act, R.S.B.C. 1979, c. 26, differentiates between citizens and non-citizens with respect to admission to the practice of law. The distinction denies admission to non-citizens who are in all other respects qualified. While the citizenship requirement 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.
I agree with my colleague 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. I agree with him also that it discriminates against them on the ground of their personal characteristics, i.e., their non-citizen status. I believe, therefore, that they are entitled to the protection of s. 15.
Before turning to s. 1 , I would like to add a brief comment to what my colleague has said concerning non-citizens permanently resident in Canada forming the kind of "discrete and insular minority" to which the Supreme Court of the United States referred in United States v. Carolene Products Co., 304 U.S. 144 (1938), at pp. 152-53, n. 4.
Relative to citizens, non-citizens are a group lacking in political power and as such vulnerable to having their interests overlooked and their rights to equal concern and respect violated. They are among "those groups in society to whose needs and wishes elected officials have no apparent interest in attending": see J. H. Ely, Democracy and Distrust (1980), at p. 151. Non-citizens, to take only the most obvious example, do not have the right to vote. Their vulnerability to becoming a disadvantaged group in our society is captured by John Stuart Mill's observation in Book III of Considerations on Representative Government that "in the absence of its natural defenders, the interests of the excluded is always in danger of being overlooked . . . ." I would conclude therefore that non-citizens fall into an analogous category to those specifically enumerated in s. 15. I emphasize, moreover, that this is a determination which is not to be made only in the context of the law which is subject to challenge but rather in the context of the place of the group in the entire social, political and legal fabric of our society. While legislatures must inevitably draw distinctions among the governed, such distinctions should not bring about or reinforce the disadvantage of certain groups and individuals by denying them the rights freely accorded to others.
I believe also that it is important to note that the range of discrete and insular minorities has changed and will continue to change with changing political and social circumstances. For example, Stone J. writing in 1938, was concerned with religious, national and racial minorities. In enumerating the specific grounds in s. 15, the framers of the Charter embraced these concerns in 1982 but also addressed themselves to the difficulties experienced by the disadvantaged on the grounds of ethnic origin, colour, sex, age and physical and mental disability. It can be anticipated that the discrete and insular minorities of tomorrow will include groups not recognized as such today. It is consistent with the constitutional status of s. 15 that it be interpreted with sufficient flexibility to ensure the "unremitting protection" of equality rights in the years to come.
While I have emphasized that non-citizens are, in my view, an analogous group to those specifically enumerated in s. 15 and, as such, are entitled to the protection of the section, I agree with my colleague that it is not necessary in this case to determine what limit, if any, there is on the grounds covered by s. 15 and I do not do so.
Section 1
Having found an infringement of s. 15 of the Charter , I turn now to the question whether the citizenship requirement for entry into the legal profession in British Columbia constitutes a reasonable limit which can be "demonstrably justified in a free and democratic society" under s. 1 .
As my colleague has pointed out, the onus of justifying the infringement rests upon those seeking to uphold the legislation, in this case the Attorney General of British Columbia and the Law Society of British Columbia, and the analysis to be conducted is that set forth by Chief Justice Dickson in R. v. Oakes, [1986] 1 S.C.R. 103.
The first hurdle to be crossed in order to override a right guaranteed in the Charter is that the objective sought to be achieved by the impugned law must relate to concerns which are "pressing and substantial" in a free and democratic society. The Chief Justice stated at pp. 138-39:
To establish that a limit is reasonable and demonstrably justified in a free and democratic society, two central criteria must be satisfied. First, the objective, which the measures responsible for a limit on a Charter right or freedom are designed to serve, must be "of sufficient importance to warrant overriding a constitutionally protected right or freedom": R. v. Big M Drug Mart Ltd., supra, at p. 352. The standard must be high in order to ensure that objectives which are trivial or discordant with the principles integral to a free and democratic society do not gain s. 1 protection. It is necessary, at a minimum, that an objective relate to concerns which are pressing and substantial in a free and democratic society before it can be characterized as sufficiently important.
This, in my view, remains an appropriate standard when it is recognized that not every distinction between individuals and groups will violate s. 15 . If every distinction between individuals and groups gave rise to a violation of s. 15 , then this standard might well be too stringent for application in all cases and might deny the community at large the benefits associated with sound and desirable social and economic legislation. This is not a concern, however, once the position that every distinction drawn by law constitutes discrimination is rejected as indeed it is in the judgment of my colleague, McIntyre J. Given that s. 15 is designed to protect those groups who suffer social, political and legal disadvantage in our society, the burden resting on government to justify the type of discrimination against such groups is appropriately an onerous one.
The second step in a s. 1 inquiry involves the application of a proportionality test which requires the Court to balance a number of factors. The Court must consider the nature of the right, the extent of its infringement, and the degree to which the limitation furthers the attainment of the legitimate goal reflected in the legislation. As the Chief Justice stated in R. v. Edwards Books and Art Ltd., [1986] 2 S.C.R. 713, at p. 768:
Second, the means chosen to attain those objectives must be proportional or appropriate to the ends. The proportionality requirement, in turn, normally has three aspects: the limiting measures must be carefully designed, or rationally connected, to the objective; they must impair the right as little as possible; and their effects must not so severely trench on individual or group rights that the legislative objective, albeit important, is nevertheless outweighed by the abridgment of rights.
The appellant Law Society submitted that the Court of Appeal erred in its consideration of the citizenship requirement by failing to accord proper recognition to the role of the legal profession in the governmental process of the country and in failing to consider that Canadian citizenship could reasonably be regarded by the legislature as a requirement for the practice of law. The respondents, on the other hand, argued that the Court of Appeal was right in concluding that there was not a sufficiently rational connection between the required personal characteristic of citizenship and the governmental interest in ensuring that lawyers in British Columbia are familiar with Canadian institutions, are committed to Canadian society, and are capable of playing a role in our system of democratic government. I am in general agreement with the reasoning of the Court of Appeal on this aspect of the case for the following reasons.
The trial judge in this case concluded that the discrimination against non-citizens in s. 42 of the Barristers and Solicitors Act was justified under s. 1 of the Charter . He said ((1985), 22 D.L.R. (4th) 9) at p. 21:
I find citizenship to be a personal characteristic which is relevant to the practice of law on account of the special commitment to the community which citizenship involves and not merely because the practical familiarity with the country necessary for that occupation can generally be expected in the case of citizens.
On appeal McLachlin J.A., as she then was, found that the exclusion of non-citizens was not rationally connected to the governmental interest in ensuring that lawyers had a sufficient knowledge of local affairs and institutions for the competent practice of law. She stated ((1986), 27 D.L.R. (4th) 600) at p. 612:
Citizenship does not ensure familiarity with Canadian institutions and customs. Only citizens who are not natural-born Canadians are required to have resided in Canada for a period of time. Natural-born Canadians may reside in whatever country they wish and still retain their citizenship. In short, citizenship offers no assurance that a person is conscious of the fundamental traditions and rights of our society. The requirement of citizenship is not an effective means of ensuring that the persons admitted to the bar are familiar with this country's institutions and customs: see Re Dickenson and Law Society of Alberta (1978), 84 D.L.R. (3d) 189 at p. 195, 5 Alta. L.R. (2d) 136, 10 A.R. 120.
I appreciate the desirability of lawyers being familiar with Canadian institutions and customs but I agree with McLachlin J.A. that the requirement of citizenship is not carefully tailored to achieve that objective and may not even be rationally connected to it. McDonald J. pointed out in Re Dickenson and Law Society of Alberta (1978), 84 D.L.R. (3d) 189, at p. 195 that such a requirement affords no assurance that citizens who want to become lawyers are sufficiently familiar with Canadian institutions and "it could be better achieved by an examination of the particular qualifications of the applicant, whether he is a Canadian citizen, a British subject, or something else".
The second justification advanced by the appellants in support of the citizenship requirement is that citizenship evidences a real attachment to Canada. Once again I find myself in agreement with the following observations of McLachlin J.A., at pp. 612-13:
The second reason for the distinction -- that citizenship implies a commitment to Canadian society -- fares little better upon close examination. Only those citizens who are not natural-born Canadians can be said to have made a conscious choice to establish themselves here permanently and to opt for full participation in the Canadian social process, including the right to vote and run for public office. While no doubt most citizens, natural-born or otherwise, are committed to Canadian society, citizenship does not ensure that that is the case. Conversely, non-citizens may be deeply commited [sic] to our country.
The third ground advanced to justify the requirement relates to the role lawyers are said to play in the governance of our country. McLachlin J.A. disputed the extent to which the practice of law involves the performance of a governmental function. She stated at p. 614:
While lawyers clearly play an important role in our society, it cannot be contended that the practice of law involves performing a state or government function. In this respect, the role of lawyers may be distinguished from that of legislators, judges, civil servants and policemen. The practice of law is first and foremost a private profession. Some lawyers work in the courts, some do not. Those who work in the courts may represent the Crown or act against it. It is true that all lawyers are officers of the court. That term, in my mind, implies allegiance and certain responsibilities to the institution of the court. But it does not mean that lawyers are part of the process of government.
Although I am in general agreement with her characterization of the role of lawyers qua lawyers in our society, my problem with this basis of justification is more fundamental. To my mind, even if lawyers do perform a governmental function, I do not think the requirement that they be citizens provides any guarantee that they will honourably and conscientiously carry out their public duties. They will carry them out, I believe, because they are good lawyers and not because they are Canadian citizens.
In my view, the reasoning advanced in support of the citizenship requirement simply does not meet the tests in Oakes for overriding a constitutional right particularly, as in this case, a right designed to protect "discrete and insular minorities" in our society. I would respectfully concur in the view expressed by McLachlin J.A. at p. 617 that the citizenship requirement does not "appear to relate closely to those ends, much less to have been carefully designed to achieve them with minimum impairment of individual rights".
Disposition
I would dismiss the appeal with costs. I would answer the constitutional questions as follows:
Q. (1)Does the Canadian citizenship requirement to be a lawyer in the Province of British Columbia as set out in s. 42 of the Barristers and Solicitors Act, R.S.B.C. 1979, c. 26 infringe or deny the rights guaranteed by s. 15(1) of the Canadian Charter of Rights and Freedoms ?
A. Yes.
Q. (2)If the Canadian citizenship requirement to be a lawyer in the Province of British Columbia as set out in s. 42 of the Barristers and Solicitors Act, R.S.B.C. 1979, c. 26 infringes or denies the rights guaranteed by s. 15(1) of the Canadian Charter of Rights and Freedoms , is it justified by s. 1 of the Canadian Charter of Rights and Freedoms ?
A. No.
//McIntyre J.//
The reasons of McIntyre and Lamer JJ. were delivered by
MCINTYRE J. (dissenting in part) -- This appeal raises only one question. Does the citizenship requirement for entry into the legal profession contained in s. 42 of the Barristers and Solicitors Act, R.S.B.C. 1979, c. 26, (the "Act") contravene s. 15(1) of the Canadian Charter of Rights and Freedoms ? Section 42 provides:
42. The benchers may call to the Bar of the Province and admit as a solicitor of the Supreme Court
(a) a Canadian citizen with respect to whom they are satisfied that he . . .
and s. 15 of the Charter states:
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.
(2) Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.
The respondent, Andrews, was a British subject permanently resident in Canada at the time these proceedings were commenced. He had taken law degrees at Oxford and had fulfilled all the requirements for admission to the practice of law in British Columbia, except that of Canadian citizenship. He commenced proceedings for a declaration that s. 42 of the Act violates the Charter . He also sought an order in the nature of mandamus requiring the benchers of the Law Society of British Columbia to consider his application for call to the Bar and admission as a solicitor. His action was dismissed at trial before Taylor J. in the Supreme Court of British Columbia in a judgment reported at (1985), 22 D.L.R. (4th) 9. An appeal was allowed in the Court of Appeal (Hinkson, Craig and McLachlin JJ.A., at (1986), 27 D.L.R. (4th) 600), and this appeal is taken by the Law Society of British Columbia, by leave granted November 27, 1986. Pursuant to an order of this Court on January 28, 1987, Gorel Elizabeth Kinersly, an American citizen who was at the time a permanent resident of Canada articling in the Province of British Columbia, was added as a co-respondent in this appeal. On January 28, 1987, the Chief Justice stated constitutional questions in the following terms:
(1)Does the Canadian citizenship requirement to be a lawyer in the Province of British Columbia as set out in s. 42 of the Barristers and Solicitors Act, R.S.B.C. 1979, c. 26 infringe or deny the rights guaranteed by s. 15(1) of the Canadian Charter of Rights and Freedoms ?
(2)If the Canadian citizenship requirement to be a lawyer in the Province of British Columbia as set out in s. 42 of the Barristers and Solicitors Act, R.S.B.C. 1979, c. 26 infringes or denies the rights guaranteed by s. 15(1) of the Canadian Charter of Rights and Freedoms , is it justified by s. 1 of the Canadian Charter of Rights and Freedoms ?
Following the judgment in his favour, the respondent Andrews was called to the Bar and admitted as a solicitor in the Province of British Columbia and is now a Canadian citizen. The co-respondent, Kinersly, who had expressed an intention to become a Canadian citizen, became eligible to do so on March 15, 1988.
Disposition in the Courts Below
Taylor J., at trial, defined discrimination under s. 15(1) of the Charter as the drawing of an irrational distinction between people based on some irrelevant personal characteristic for the purpose, or having the effect, of imposing upon the victim of the discrimination some penalty, disadvantage or indignity, or denying some advantage. He did not consider that the enumerated heads of discrimination in s. 15(1) , race, national or ethnic origin, colour, religion, sex, age or mental or physical disability, were a complete listing of the proscribed bases of discrimination, and said, at p. 16:
Thus, in order to amount to discrimination under s. 15(1) , the personal characteristic on which a distinction is based must either be one which is entirely irrelevant in the context in which the distinction is made or one which is given a significance clearly beyond that which could reasonably be justified in such a context -- the distinction must in this sense be irrational.
He said that the test would be the same whether or not the discrimination was on the basis of a characteristic enumerated in s. 15(1) of the Charter . Citizenship, in his view, while not within the term, national origin, is nonetheless a characteristic which could form a basis for discrimination under s. 15(1) . He adopted a broad view of the concept of citizenship. He said, at p. 20:
Citizenship is, I think, a privilege which is understood to carry with it commitments to promote the security and welfare of the country, and to protect the way of life in which Canadians have come to believe, which are not expected of a permanent resident, even a resident sworn to allegiance. A citizen is a part of the country, a resident non-citizen never really more than an attachment to it.
In determining the relevance of citizenship to entry into the legal profession, he referred to the wide powers accorded to lawyers in the administration of justice and the judicial process which give rise to a duty to protect the system from abuse and to respect the laws of the land. He said, at pp. 20-21:
It cannot in my view be said that there is anything irrational in the view which has been taken by the Legislature that only Canadian citizens ought to exercise such powers in this province and be entrusted with such responsibilities.
He did not consider that any burden imposed on non-citizens by the citizenship requirement was disproportionate to the relevance of citizenship in view of the nature of the duties and responsibilities of members of the legal profession. He concluded that neither s. 15(1) nor s. 7 of the Charter were infringed by the Canadian citizenship requirement in s. 42 of the Act.
McLachlin J.A. wrote the judgment for a unanimous Court of Appeal. She expressed the view, at p. 605, that the real meaning of the concept of equal protection and benefit before and under the law is that:
. . . persons who are "similarly situated be similarly treated" and conversely, that persons who are "differently situated be differently treated".
She referred to two competing approaches which have been adopted in dealing with discrimination under s. 15(1) . One view is that any distinction is sufficient to establish discrimination, and when discrimination is found the courts should immediately turn to s. 1 of the Charter for a determination of its constitutional validity. The other view is that discrimination under s. 15(1) must be "invidious or pejorative" in nature, in that it must result from an unreasonable classification or unjustifiable differentiation. The second view, then, incorporates principles of justification and reasonableness into s. 15(1) independently of s. 1 . She adopted essentially the second view rejecting the proposition that any differentiation would result in a resort to s. 1 of the Charter , arguing that it could not have been intended to give a guarantee in s. 15(1) against every legislative classification. To do so, she asserted, would be to trivialize the fundamental rights guaranteed by the Charter and deprive the words "without discrimination" in s. 15(1) of any content and, in effect, to replace s. 15(1) with s. 1 . This approach, in her opinion, would mean that many important and socially accepted distinctions, such as restrictions on drunken driving and special provisions for the care, protection, and education of children, would be subject to automatic review under s. 1 . To equate the provisions of s. 15(1) with a guarantee against all distinction would, in effect, "elevate s. 15 to the position of subsuming the other rights and freedoms defined by the Charter ". She said that there must be an initial determination of the reasonableness and fairness of the impugned legislation under s. 15(1) . Therefore, she saw two questions emerge: what degree of evaluation of the legislation should be done under s. 15(1) , and what role, if any, remained for s. 1 when legislation is attacked under s. 15(1) ?
In dealing with the first question, she said that the court should determine whethe