Research ranc. i1i~ EQUALITY RIGHTS: SUPREME COURT OF CANADA DECISION. Philip Rosen Law and Government Division. 22 February 1989

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1 Mini-Review MR-29E EQUALITY RIGHTS: SUPREME COURT OF CANADA DECISION Philip Rosen Law and Government Division 22 February 1989 A i1i~ ~10000 ~i;~ I Bibliothèque du Parlement Research ranc

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3 V CANADA EQUALITY RIGHTS: SUPREME COURT OF CANADA DECISION BACKGROUND On 2 February 1989, in Law Society of British Columbia v. Andrews, the Supreme Court of Canada rendered its first decision concerning the equality rights guaranteed in s. 15 of the Charter. The issues in this case were whether the Canadian citizenship requirement for becoming a lawyer set out in s. 42 of the British Columbia Barristers and Solicitors ~2:ia R.S.B.C. 1979, c. 26 infringed the rights guaranteed in s. 15(1) of the Charter of Rights, and, if so, whether such infringement could be justified under s. 1 of the Charter. Section 42(1) of the British Columbia Barristers and Solicitors Act reads as follows: 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... Section 15(1) of the Charter of Rights reads as follows: 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. Section 1 of the Charter of Rights reads as follows: The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits demonstrably justified prescribed by in a free law and as can be democratic society.

4 2 In the lower courts, Taylor J. of the B.C. Supreme Court concluded that the citizenship requirement was not in violation of s. 15(1) of the Charter of Rights ((1985) 66 BCLR 363, 22 DLR (4th) 9, [1986] 1 WWR 252). The British Columbia Court of Appeal, however, (through McLachlin J.A., as she then was) held that the citizenship requirement was in such violation of s. 15(1) ((1986) 2 BCLR 305, 27 DLR (4th) 600, [1986] 4 WWR 474). Three sets of reasons for judgment were written in the Supreme Court of Canada. In relation to s. 15(1) of the Charter, reasons were written by McIntyre d., concurred with by the other Justices, with concurring reasons by Wilson J. and LaForest J. In relation to s. 1, reasons for judgment were written by Wilson J. (concurred in by Dickson C.J. and l Heureux Dubê J.) and by LaForest J.; dissenting reasons for judgment were written by McIntyre J. and concurred in by Lamer J. Section 15 of the Charter is part of the Constitution Act, 1982 but did not come into effect until April This three-year waiting period was to permit Parliament and the provincial legislatures to bring their laws into conformity with Charter-guaranteed equality rights. This Supreme Court of Canada decision is the first definitive judicial guidance on the analysis that lower courts will have to apply to equality rights issues. SECTION 15 In his written analysis, McIntyre J. first dealt with the concept of equality, which he described as elusive and lacking in precise definition. He went on to say that not every difference in treatment results in inequality; identical treatment, however, will frequently produce serious inequality. The main consideration in the analysis of equality should be the impact of the law under consideration upon the group affected by it: a law said to affect all should not have a more burdensome or less beneficial impact on some than on others because of irrelevant personal differences. The equal treatment of those similarly situated

5 3 test was thus rejected by McIntyre 3. as inadequate because it does not give sufficient consideration to the content of the law, its purpose, and the impact it has upon those to whom it applies as well as upon those whom it excludes. McIntyre 3. then went on to say that the purpose of s. 15 is to ensure equality in the formulation and application of the law, which is more than the elimination of distinctions. He stated that the promotion of equality involves the promotion of a society in which all are secure in the concern, respect and consideration they deserve. McIntyre J. then went on to deal with the definition of discrimination in the following terms: I would say that discrimination may be described as a distinction, whether intentional or not, but based on grounds relating to personal characteristics of the individual or group, which has the effect of imposing burdens, obligations, or disadvantages on such individual or group not imposed upon 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 classed. (p. 19 of McIntyre J. s reasons) McIntyre J. continued by saying that the enunciated prohibited grounds of discrimination in s. 15 are not exclusive and the limits to be put on them await definition in future cases. These grounds, however, must be interpreted in a broad and generous manner. The next issue to be addressed by McIntyre 3. was whether there has been a violation of a s. 15(1) guaranteed equality right. As part of his reasoning, he set out the following three possible approaches to s. 15(1) analysis: 1) Any distinction made in law amounts to discrimination under s. 15 and there must then be recourse to s. 1 to determine its validity (advocated by Peter Hogg, Constitutional Law of Canada (2nd ed.), p );

6 4 2) Any distinction having an unreasonable or unfair impact on the individual affected will amount to discrimination under s. 15(1) s. 1 will have a limited role since unreasonableness will already have been established under s. 15(1) by the person affected by the impugned legislation (McLachlin J.A. (as she then was) in this case in the B.C. Court of Appeal); and 3) Any distinction that amounts to discrimination in the pejorative sense of the term based upon the grounds set out in S. 15(1) or grounds analogous to them, will be deemed to be discriminatory, after which there would be recourse to 5. 1 to determine whether they were reasonable limits upon guaranteed equality rights (Hugessen J.A. in Smith Kline and French v. Canada [1987] 2 F.C ). McIntyre J. rejected the first approach as initially denying any role for s. 15(1) of the Charter (distinction would be equated with discrimination) and the second approach as virtually denying any role for 1 of the Charter (the distinction would already have been determined to be unfair or unreasonable under the s. 15(1) analysis). He adopted the third approach set out by Hugessen J.A. Accordingly, McIntyre J. stated that the complainant must show that the impact of the impugned law is discriminatory on the basis of enumerated or analogous grounds. A rule barring an entire class of persons from certain forms of employment on the basis of citizenship and without consideration of these persons educational and professional qualifications is thus in violation of S. 15(1). The burden of proof under s. 1 of the Charter then is shifted to those who argue in favour of such a provision. Wilson J. completely agreed with McIntyre J. s analysis. S. In her concurring reasons, she stated that non citizens fall into a category analogous to those grounds set out in s. 15(1). The future determination of analogous categories should be made not only in the context of the law being challenged but also in the context of the group s place in society. Wilson J. went on to say that legal distinctions should not reinforce the disadvantages of certain groups or individuals. Section 15 must be interpreted in such a way as to extend equality rights to minorities as issues concerning their status emerge in the years to come.

7 5 LaForest 3. also substantially agreed with McIntyre J. s analysis of s. 15(1) of the Charter. In his concurring reasons, he said that the opening words of s. 15(1) referring to equality may extend legal protection against discrimination through the application of law. Citizenship is not within the control of the individual and is at least temporarily a trait of personhood not alterable by conscious action or without some cost. Section 15 was never intended as a means to subject all variegated legislative distinctions to judicial scrutiny the role of the courts is to protect against incursions on basic values, not to secondguess policymakers. LaForest J. said that courts should especially be careful in questioning the impact of legislative and governmental choices on established and analogous equality rights. - SECTION 1 McIntyre, Wilson and LaForest J.J., having all found S. 42(1) of the Barristers and Solicitors Act to be in violation of S. 15(1) of the Charter of Rights, proceeded to analyze that provision under s. 1 of the Charter to determine whether the limitation on a guaranteed right was reasonably justified. They all agreed that the burden of proof to show the reasonableness of such a limitation was on the parties upholding for s. 1 [1986] 1 should be the limitation. They also agreed that the proportionality test analysis set out by the Supreme Court of Canada in R. v. Oakes SCR 103 and R. v. Edwards Books and Art Ltd. [1986] 2 SCR 713 followed and applied. Wilson J. (concurred with by Dickson C.J. and 1 Heureux-Dubé J.) and LaForest 3. (who wrote concurring reasons) determined that s. 42 of the Barristers and Solicitors Act did not meet the 5. 1 test and should be declared of no force or effect. McIntyre 3. (with whom Lamer J. concurred) in dissenting reasons concluded that the impugned provision did meet the s. 1 test. The concurring majority reasons and the dissenting minority reasons applied the same s. 1 test to the following issues but reached opposite conclusions:

8 6 1) Whether citizenship in itself ensures among members of the Bar a knowledge of Canadian institutions and practices; 2) Whether citizenship in itself ensures a commitment to Canada and its social values; and 3) Whether lawyers play such a fundamental role in Canadian democratic institutions as to justify a citizenship requirement. ~ CONCLUS ION The judgments in this first decision in relation to Charter 15 guaranteed equality rights are cautious and deliberate, building upon past decisions and indicating where the Court may go in future. The Court indicates what it understands discrimination and equality to mean without foreclosing future elaboration of these concepts. The controversy as to S. 15 analysis has been clarified and its relationship to s. 1 enunciated. The equal treatment of those similarly situated debate has been laid to rest. The Court has enunciated an open-ended, purposive analysis of s. 15(1). In doing all this, the Court has not ventured too far beyond the issues to be resolved in this case. As an example, none of the reasons for judgment appear to indicate what is meant by grounds analogous to those set out in 5. 15(1). Most troubling of all is the fact that there are three sets of concurring reasons for judgment in relation to the Court s S. 15(1) analysis and two sets of concurring reasons and one set of dissenting reasons on an agreed-upon analytical approach to s. 1 in this case. This situation, combined with the recent unusually high turnover in the membership of the Supreme Court of Canada, results in some degree of uncertainty in this area, as in others, of Charter of Rights adjudication. S.