The respondent Andrews, a British subject permanently resident in Canada. Andrews met all the requirements for the admission to the British Columbia Bar except for Canadian Citizenship, section 42(a) of Barrister and Solicitors Act. He commenced legal action for a declaration that the requirement violated section 15(1) Of the Canadian charter of rights and freedoms; this was dismissed at the trial but allowed on the appeal.
The appellants, the Law society of British Columbia and Attorney General of British Columbia, appealed against this declaration that the requirement for Canadian Citizenship infringes the section 15(1) of the Canadian charter of rights and freedoms. Legal Issues: Does section 42(a) of Barristers and Solicitors Act violate section 15(1) of the Canadian Charter of rights and freedoms; every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law.
Should there be a “reasonable limit” on section 15(1) of the Charter? Held: The appeal by the Law society of British Columbia and Attorney General of British Columbia, was rejected by a unanimous decision to section 15 of the Canadian charter of rights and freedoms Ratio Decidendi: (Per Dickson C. J and McIntyre, Lamer, Wilson and L’heurex-dube JJ). Section 15(1) of the Charter grants that every individual was guaranteed equality before and under the law, and equal protection, and equal benefit of the law without discrimination.
However, this is a general guarantee of equality, as its main focus is equality in accordance to law; equality in the formulation and application of the law. The words “without discrimination” are crucially important as discrimination is a distinction which, whether intentional or not but based on grounds relating to personal characteristics of the individual or group has an effect that imposes disadvantage not imposed upon others or which withholds or limits access to advantages available to other members of society.
The effect that the distinction has on the complainant must be considered, also a complainant under section 15(1) must show not only that he or she is not receiving equal treatment before and under the law or that the law has a differential impact on him or her in the protection or benefit of the law but must show in addition that the law is discriminatory. A two step approach to section 15(1) of the charter is required 1. The first step is to determine whether or not an infringement of a guaranteed right had occurred 2. The second step is to determine whether, if there has been an infringement, it could be justified under section. 1 of the Charter. These steps must be kept distinct, due to the difference in burden of proof, the citizen must establish the infringement, and state must justify this infringement.
Therefore, a rule which bares an entire class or persons from certain forms of employment, solely on the grounds of a lack of citizenship status and without consideration of educational, professional and or other attributes and merits of individuals in the group, infringes section. 5- equality rights. Section. 42 of the Barristers and Solicitors Act represents such a rule. In using this, it was established that section 15(1) of the charter was violated and also that the violation was not justified under section. 1 of the Charter as a pressing and substantial objective of the Barristers and solicitors act. The proportionality test was failed in this case. Finally it is established Canadian Citizenship is not required when becoming familiar with Canadian institutions and customs, in the field of Law.
Dissent: (Per McIntyre and Lamer JJ) “The citizenship requirement is reasonable and sustainable under section. 1 given the importance of the legal profession in the government of the country. The measure was not disproportionate to the object to be attained. Non-citizens are encouraged to become citizen and the maximum delay imposed upon the non-citizen from the date of acquisition of permanent resident status is three years.
It is reasonable to expect that the newcomer who seeks to gain the privileges and status within the land and the right to exercise the great powers that admission to practice of law will give should accept citizenship and its obligations as well as its advantages and benefits” In my personal opinion, I would rule that the decision made by the Supreme Court should withstand. In order for Andrews to fulfill his profession, it is not a requirement that he be a citizen of Canada, he can be devoted to the country, and be educated in the customs and institutions of Canada, without taking up citizenship.
By disallowing Andrews to become a lawyer in British Columbia, there is a discrimination occurring against his origin, this is a violation of section. 15(1) every individual is equal before and under the law and has protection and equal benefit of the law without discrimination. In focusing on the words “without discrimination” I believe that Andrews should be given the right to become a lawyer, in British Columbia, without being discriminated against his ethnic origin, however section. 2 Barristers and Solicitors Act violates this by not allowing non-citizens to come up to the bar. Another reason, is by using the definition of discrimination, which is making a distinction on a specific group or individual, by not allowing anyone who is not Canadian Citizen, section. 42 Barristers and Solicitors act infringes on the “without discrimination” clause of section. 15(1), by not allowing any non-citizens to obtain a profession in Canadian Law, despite their qualifications and attributes.
However, McIntyre and Lamer JJ, in the dissent did point out that by allowing non-citizens to take up professions in Canada, does not encourage non-citizens to become Citizens of Canada, the effect on this is that immigration will have a troubled effect on Canada as a country, Rather than the effect of not allowing non-citizens to take up certain profession in Canada. In conclusion, I agree with the decision of the Supreme Court, there should be reasonable limits clause on section. 15 (1) of the charter by allowing qualified non-citizens of Canada to take up professions in Canada.