I normally begin my day by reading the news. Today the news was very sad. I learned that Mark David Andrews, a lawyer in the Vancouver office of Fasken Martineau, passed away at the age of 60. Globe and Mail journalist Sean Fine wrote a moving obituary titled: “Lawyer Mark Andrews won a landmark victory for equality in Canada“.

I knew Mark during the the period from 1985 to 1989 when he was living, what would become, the first Supreme Court of Canada ruling on Section 15 of the Canadian Charter of Rights and Freedoms. You see, Mark was a British Citizen who was NOT a Canadian citizen, but only a Permanent Resident of Canada. At that time, British Columbia (along with almost all the other provinces) clung to (and tenaciously defended) a requirement that one must be a Canadian citizen to be allowed to practise law in British Columbia.

By way of background …

Mark was an Oxford graduate who was also a “world class rower”. Many of the details of his life are described in his obituary at Legacy.com which includes:

He was in fact larger than life, a wonderful man – loving and loyal, fiercely intelligent, competitive but compassionate, and curious and knowledgable about every living thing. He was happiest when pushing himself to the limit – whether rowing, cycling or hiking up a mountain, or making submissions on a difficult point of law. He was an enthusiast and his enthusiasm and confidence carried us along with him.

I experienced Mark as a very decent human being. But his character aside, the case of Andrews v. Law Society of British Columbia ensured that Equality Rights jurisprudence in Canada, got off on the right foot. The Andrews decision (without extending very far) established the principle that:

1. Non-enumerated grounds of discrimination (citizenship in particular) could violate Charter Section 15.

2. Charter S. 15 was to be interpreted in a way that valued “substantive equality”. Differential treatment could be discriminatory and identical treatment could also (“the true interests of equality may require differential treatment”)be discriminatory.

Clearly if Mr. Andrews had NOT been successful at the Supreme Court of Canada and the court had ruled that citizenship classifications could NOT violate Charter S. 15, the ADCS FATCA lawsuit would not have taken place. To put it another way: Mr. Andrews’s success made a large number of Section 15 cases possible.

After reading of Mr. Andrew’s death, I went back and skimmed the Supreme Court decision in Andrews v. The Law Society of British Columbia. With the passage of time, the decision seems almost elementary and trivial. One wonders how there could ever have been a time when the principles espoused in the Andrews decision could have been considered to be uncertain, novel and controversial. But, uncertain, novel and controversial they were. The Andrews case was argued in October of 1987 and released in February of 1989 (think of it – 16 months from oral argument to the release of the decision). The case was heard by the Dickson court. The Dickson court guided the interpretation of the Charter through the early years. The cases of Big M Drug Mart and Oakes were among the earliest and most important cases. (While writing this post I discovered an excellent site, providing basic information about the Charter – Charter Cases (created by Jeremy Maddock). I recommend visiting the site.)

Interestingly the Andrews case arrived at the Supreme Court of Canada from a 1985 decision of the British Columbia Court of Appeal. The BC Court of Appeal decision was written by future (at the time) Supreme Court of Canada Chief Justice McLachlin. In other words, the Judges who played a role in giving judicial life to Charter S. 15 included many of Canada’s greatest judges. These judges included: Chief Justice Dickson, Future Chief Justice Lamer and Future Chief Justice McLachlin. In addition, Justice Wilson (who history may remember as Canada’s most important judge ever) wrote the majority Supreme Court decision in Andrews.

Equality Rights In a Post-Charter Era

It’s important to understand what a big deal Charter Rights were in the 1980s. After all, prior to 1982, Canada did not have a constitutionally entrenched Charter of Rights. On April 17, 1982, the first Prime Minister Trudeau (after a long political battle) managed to secure Constitutional amendments that included a Charter of Rights and Freedoms for Canadians. By far the most controversial part of the Charter was Section 15 – the Equality Rights Section.

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) Section (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.

Section 15 was so controversial and was expected to have such broad application that it did not come into force until – April 17, 1985 – three years after the Charter generally took effect. The idea was to give governments time to bring their laws into conformity with the Charter. The problem was that there was great disagreement on what Charter Section 15 meant.

Some of the interpretive questions of the day were:

– did the Charter apply only to discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability”. Did other grounds (for example sexual orientation and citizenship) attract Charter scrutiny?

– should Section 15 be read to prohibit ANY form of distinction based on these grounds? For example, (if I understood him correctly) the late Peter Hogg argued that Section 15 did not allow for differences in treatment (Professor Hogg was a supporter of the idea that the FATCA IGA violated Charter S. 15). See:

FATCA Vulnerable to a Canadian Constitutional Challenge

– under what circumstances would a S. 15 violation be saved by Charter S. 1? (Remember that Charter rights are subject to the reasonable limitation test found in Section 1 of the Charter of Rights.

1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

As US law professor Paul Bender said: it was a tremendously exciting time to be a lawyer in Canada.

What exactly was the statute under attack in the Andrews case?

As described in the decision …

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.

The attitude of the legal profession …

The legal profession in Canada has a long history of discrimination. At various times in Canada’s history the following groups have been denied access to the legal profession: Catholics, Asians, Jews, women, non-citizens (and who knows who or what else). As might have been expected there was strong opposition to the notion that a non-citizen could practise law in British Columbia and other Canadian provinces. At the Supreme Court hearing the following groups argued that the citizenship requirement to practise law should be upheld: The Law Society of British Columbia, The Federation of Law Societies, The Government of British Columbia (Joe Arvay of ADCS fame was their lawyer) and the provinces of Quebec, Ontario, Nova Scotia, Saskatchewan and Alberta. Think of it! All these people arguing that Mark Andrews – an Oxford Law Graduate and permanent resident of Canada, should be prohibited from practising law because he was NOT a Canadian citizen! Those were the days …

The Supreme Court had no trouble ruling in favour of Mark Andrews

I recommend the decision to those of you who are interested in the development of Charter jurisprudence. Justice Wilson wrote the majority decision (Justices Lamer and McIntyre ruled in favour of the Law Society of British Columbia based on their view that the violation of S. 15 was saved by S. 1.)

Highlights of Justice Wilson’s decision include:

(Notice how this provides the legal support for (1) a broad interpretation of S. 15 and (2) an interpretation that recognizes that citizenship classifications can violate the Charter. This provides the legal foundation for the ADCS FATCA lawsuit. I have taken the liberty of highlighting various parts of this excerpt.)

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.

(It’s interesting that Justice Wilson addressed the idea that groups can be “discrete and insular minorities” as originally defined in a US Supreme Court decision by Justice Stone. The use of the words “equal concern and respect” comes from the writing of law professor Ronald Dworkin.By referencing Carolene Products and Dworkin, Justice Wilson is making a huge effort to determine the “nature of the right” guaranteed by Charter Section 15.)

The Mark David Andrews Legacy

In my view: Mark was the right person, at the right time, with courage and commitment. Although “the arc of the moral universe is long and may bend toward justice”, the Mark Andrews of the world are necessary, to actually bend that arc to a just a result. He was Canada’s Equality Rights pioneer.

On a more practical note, I doubt that the ADCS Charter lawsuit would have taken place with a different result in Andrews v. Law Society Of British Columbia. As Justice MacTavish noted in paragraph 357 of her decision in Deegan v. Canada:

[357] “National origin” is thus an enumerated ground under section 15 of the Charter. While citizenship is not expressly mentioned in section 15, the jurisprudence of the Supreme Court of Canada has established that it is an analogous ground: Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143 at 152, 56 D.L.R. (4th) 1.

John Richardson – Follow me on Twitter @ExpatriationLaw