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Facts[]

Mark David Andrews, a British citizen and Canadian permanent resident, wished to practice law in British Columbia. S. 42 of the Barristers and Solicitors Act in BC forbids non-citizens from practicing law in BC. Andrews had obtained a law degree from Oxford, and met all requirements to the BC bar except that of Canadian citizenship.

Andrews sued on the basis that s. 42 violated his rights under s. 15(1) of the Charter. The case was dismissed at trial, but Andrews succeeded on appeal to the BC Court of Appeals. The Law Society of British Columbia then appealed to the Supreme Court of Canada.

Issue[]

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

Decision[]

Appeal dismissed. s. 42 violates s. 15, and is not saved by s.1.

Reasons[]

The Court rejected the approach previously applied under the Canadian Bill of Rights, which required that "similarly situated should be similarly treated", because this allowed differently situated people to be treated discriminatorily.

The Court defined discrimination as a distinction, whether intentional or not, that has the effect of imposing burdens, obligations, or disadvantages on an individual or group not imposed upon others, or withholding or limiting access to opportunities, benefits, and advantages available to other members of society. S. 42 discriminated by limiting the employment opportunities of people qualified to be lawyers, on the basis of citizenship.

Further, the list of enumerated grounds in s. 15(1) is not exhaustive. Discrimination based on grounds analogous to the enumerated grounds is similarly forbidden. Non-citizens lack political power and are therefore vulnerable and disadvantaged, similar to some of the enumerated groups described in S. 15(1).

Therefore, s. 42 violates s. 15 of the Charter.

Lastly, s. 42 is not saved by s. 1 of the Charter. Citizenship does not ensure a lawyer's familiarity with Canadian institutions and customs, nor their commitment to Canadian society. Lack of citizenship similarly does not necessarily mean lack of familiarity nor commitment. Following the Oakes test, the Court found that the provisions of s. 42 are not carefully tailored to achieve any pressing and substantial objective.

Ratio[]

  • The test for discrimination under S. 15(1) asks: (1) Is there differential treatment based on an enumerated or analogous ground? (2) Does the distinction create a burden or deny a benefit?
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