This case was the first time the Supreme Court of Canada ruled on the meaning of equality under s. 15 of the Charter.
LEAF intervened before the Supreme Court of Canada to present its view of substantive equality. LEAF had a major influence on the Court’s interpretation of the meaning of s. 15. This case remains one of the most important decisions on equality to date.
In order to practice law in British Columbia, lawyers were required to be Canadian citizens. Mark David Andrews was a British lawyer with Canadian permanent residency. He challenged that requirement, arguing that it violated his equality rights under s. 15(1) of the Charter based on citizenship.
The British Columbia Supreme Court dismissed Mr. Andrews’ action, finding that the requirement did not represent a denial of equality under the law or discrimination. The British Columbia Court of Appeal allowed Mr. Andrews’ appeal, finding that the restriction violated his rights under s. 15 of the Charter and could not be saved under s. 1. The Law Society appealed to the Supreme Court of Canada.
LEAF argued that the interpretation of s. 15 needed to be informed by egalitarian principles; the necessity of protecting the rights of historically disadvantaged persons; and the recognition of the place of equality values and human rights legislation in the Canadian legal system.
Ensuring substantive equality would require courts to adopt a purposive approach to s. 15 – recognizing that s. 15 was intended to benefit individuals and groups who had historically had unequal access to social and economic resources. Courts would need to be critical of seemingly or “facially” neutral forms of discrimination, as well as overt discrimination. Equality might sometimes require differential treatment, and indeed treating people the same might actually allow inequality to continue.
LEAF also argued that the grounds upon which individuals are discriminated against were not exhaustive, and should include those spelled out in the Charter as well as other analogous grounds.
A majority of the Supreme Court held that the citizenship requirement violated s. 15 of the Charter and could not be saved under s. 1.
The court rejected the “similarly situated should be similarly treated” test for equality, recognizing that this would not necessarily result in equality. It found that discrimination, which could be intentional or unintentional, was a distinction based on personal characteristics which:
- Imposed disadvantages on an individual or group which were not imposed on other individuals or groups; or
- Limited access to advantages which were available to other individuals or groups
The court employed a two-step analysis in considering claims under s. 15(1). First, the court would consider whether or not the claimant had established a violation of their equality rights. This would require the claimant to show:
- That they were not receiving equal treatment before and under the law, or that the law had a differential impact on them in the protection or benefit of the law; and
- That the law was discriminatory – meaning that the distinctions made involved prejudice or disadvantage
Second, the court would consider whether the state had justified any infringement under s. 1.
LEAF is grateful to Mary Eberts and Gwen Brodsky, counsel in this case.
Download the factum here.
Read the Supreme Court of Canada’s decision here.
Our records are imperfect, but we are doing our best to update them – if you were involved with LEAF on this case but your name is not reflected here, please email us at [email protected].