Reference re: Andrews v Law Society of British Columbia

Abstract

The Women's Court of Canada (WCC) reconsiders the 1989 case of Andrews v Law Society of British Columbia, in which the Supreme Court of Canada considered whether a citizenship requirement for law society membership discriminated against a non-Canadian lawyer. In the decision, the Court set out the principles and analytic framework for an analysis under section 15(1) of the Canadian Charter of Rights and Freedoms, a framework that continues to be applied by Canadian courts today. The WCC considers the appeal as raising pure questions of law on the basis that neither party appealed on the merits. The decision relies solely on arguments that were available in 1989. The WCC's reframing of the section 15 analysis is based on a consideration of the general principles of Charter interpretation, the purpose and scope of section 15, the historical context, and the text of the provision. According to the WCC, section 15 contains a positive right to equality rather than simply a narrow prohibition against discrimination. This approach rejects the Court's view that equality rights are vague and open-ended and require limiting criteria. The WCC goes on to set out a framework for the section 15 inquiry focused on giving meaning and import to the full text of this section. Finally, the WCC considers the relationship between section 15(1) and section 1 of the Charter, confirming that it is paramount to keep the two inquiries separate and distinct.