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Comment: Andrews v. Law Society of British Columbia
Marc Gold*
In Andrews v. Law Society of British Columbia,1 the Supreme Court of
Canada upheld a challenge to the requirement that one must be a Canadian
citizen to be a member of the bar in British Columbia.2 The Court was
unanimous in concluding that this requirement infringed section 15 of the
Charter,3 and a majority of the Court rejected the argument that it was
justified under section 1.4
The importance of Andrews lies not in what it held with regard to the
citizenship requirement, but in the fact that it is the first decision of the
*Associate Professor, Osgoode Hall Law School, York University. The basic ideas in this
comment were presented at a colloquium organized by the Centre for Research on Public Law
and Public Policy, Osgoode Hall Law School, York University. I am grateful to all my colleagues
who shared their views with me, to Peter Hogg who provided helpful written comments on
an earlier draft, and to the editors of the McGill Law Journal for their assistance in improving
the final manuscript.
‘Andrews v. Law Society of British Columbia, [1988] 1 S.C.R. 143, aff’g 27 D.L.R. (4th) 600,
[1986] 4 W.W.R. 242, 2 B.C.L.R. (2d) (B.C.C.A.), rev’g (1985), 22 D.L.R. (4th) 9, [1986] 1
W.W.R. 252, 66 B.C.L.R. 363 (B.C.S.C.) [hereinafter Andrews].
2Barristers and Solicitors Act, R.S.B.C. 1979, c. 26, s. 41.
3Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being
Schedule B of the Canada Act 1982 (U.K.), 1982, c. 11.
4Separate opinions were written by Justice McIntyre (Justice Lamer concurring), Justice
Wilson (Justices Dickson and UHeureux Dub6 concurring) and Justice La Forest. On the
interpretation of s. 15, the opinion of Justice McIntyre attracted the agreement of the Court,
Justice Wilson expressing her “complete agreement”, supra, note 1 at 151, and Justice La Forest
being in “substantial agreement” to the extent “relevant to this appeal”, supra, note I at 193.
Regarding s. 1, Justice McIntyre would have upheld the law, while Justices Wilson and La
Forest wrote separate opinions striking it down. When discussing the interpretation of s. 15,
references to “the Court” refer to the opinion of Justice McIntyre.
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Supreme Court of Canada interpreting the equality rights provisions of the
Charter.5 The Court addresses many of the issues that have divided lower
courts and commentators concerning the appropriate framework for ana-
lyzing equality cases, and appears to have settled a number of those issues.
In other respects, the decision leaves open important questions concerning
the scope of section 15 and the appropriate standard of review under section
1. The purpose of this note is to outline what Andrews decided and what
it left unresolved.
I. The Meaning of Equality
Andrews affirms a number of important, albeit (by now) familiar points
regarding equality as a constitutional ideal. These include the commonplace
that equality does not necessarily require identical treatment; that not every
legislative classification offends equality;6 that equality is a comparative
concept; 7 and that a core value underlying equality is the idea of human
dignity and the treatment of all as worthy of equal “concern, respect and
consideration”. 8
The most dramatic aspect of the Court’s general discussion of equality
lies in its treatment of the Aristotelian principle of formal equality (or the
“similarly situated test” as it has become known in the Canadian caselaw).
This principle, treat like cases alike and unalike cases unalike,9 had emerged
as the dominant approach in the case law to date, but the Court was very
harsh in its criticism. Arguing that this conception of equality ignores the
content of the law, and invoking the horrors of Nazi legislation as well as
the sorry history of the Court’s treatment of equality under the Canadian
Bill of Rights,10 the Court does not mince words in its apparent rejection
of the principle of formal equality. It is “seriously deficient”,” “does not
afford a realistic test for a violation of equality rights”,12 and “cannot be
5The importance of the case can be illustrated by the fact that a number of organizations
intervened in order to advance their conceptions of the meaning and scope of s. 15, even
though they took no position on the merits of the case itself. See, for example, Factum of the
Women’s Legal Education and Action Fund (LEAF), at 2.
6Andrews, supra, note 1 at 168, McIntyre J.
7lbid. at 164.
8lbid. at 15. For a compelling answer to the skeptical argument that it is impossible to identify
the ways in which people are deserving of equal concern and respect, see J. Feinberg, Social
Philosophy (1973), at 94.
9Aristotle, Ethica Nichomacea, trans. W. Ross, Book V3, at p. 1131a-6 (1925).
10R.S.C. 1970, App. III; now, R.S.C. 1985, App. III.
“Andrews, supra, note I at 166, McIntyre J.
2Ibid. at 167.
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accepted as a fixed rule or formula for the resolution of equality questions
under the Charter.”’13
A number of questions arise from the Court’s analysis of the principle
of formal equality. First, the Court does not say that the principle of formal
equality has no role to play in any case whatsoever, only that it would be
wrong to attempt to resolve all issues “within such a fixed and limited
formula”. 14 Second, notwithstanding the harshness of its criticisms, the
Court does not reject the underlying premise of this principle. For example,
Justice McIntyre cites the following in support of the proposition that equa-
lity does not necessarily demand identical treatment: “It was a wise man
who said that there is no greater inequality than the equal treatment of
unequals”. 5 If the “wise man” was not Aristotle, it certainly could have
been: this passage is a pure expression of the principle of formal equality.
How could the Court both reject and affirm the principle in the same
case? The answer lies in distinguishing between two conceptions of the
principle of formal equality. The first looks at the categories as set out in
the law itself, and asks only that all those identified by the law as “similarly
situated” be treated similarly. As a test for evaluating the content of law,
this conception of equality is tautological.16 So long as the law draws a
distinction between one group and another, the similarly sisituatedest is
satisfied, inasmuch as the groups are not similarly situated in terms of the
distinctions drawn in the law itself Because no law could ever fail this test,
regardless of how odious it might be, this interpretation of formal equality
is deserving of the harsh criticism it receives at the hands of the Court. 17
There is, however, a second and more plausible interpretation of the
principle of formal equality, one which appears to have been adopted by
most of the lower courts applying the similarly situated test. The core idea
is that legislative distinctions must be relevant to the purposes of the law,
and that equality is violated where a law distinguishes between two classes
that are similarly situated with respect to the purpose of the law. In this
view, formal equality is a demand for legislative rationality (if not reaso-
13lbid at 168.
14lbid.
15Ibid. at 164, citing Frankfurter J. in Dennis v. United States, 339 U.S. 162 at 184 (1949).
16p Westen, “The Empty Idea of Equality” (1982) 95 Harvard L.R. 537 at 548-50.
t7As has been argued elsewhere, however, this conception of equality is defensible, if not
indeed indispensible, in the context of a challenge to the application of law. See M. Gold,
“Equality Before the Law in the Supreme Court of Canada: A Case Study” (1980) 18 Osgoode
Hall L.J. 336 at 371-72. Indeed, it is a necessary (though not sufficient) condition of justice
that law be applied fairly according to its terms. So although the Court is correct in rejecting
this interpretation of formal equality as the test for resolving challenges to the content of
legislation, it would be incorrect to reject it altogether.
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nableness). When combined with constitutional principles that impose li-
mits on the purposes legislation might legitimately pursue, this
interpretation escapes the Court’s criticism that it would automatically le-
gitimate discriminatory legislation.
It does not, however, escape a number of other well-known criticisms:
that it begs all the important questions rather than resolving them; 18 that
there will be cases where the approach simply cannot work due to the fact
that there is no comparable class (as in the case of reproduction); and that
perceived differences between classes may reflect stereotypes based upon
past discrimination. 19 In addition, the principle of formal equality seems
misplaced as a test for legislation that classifies on a ground enumerated in
section 15, given that these grounds were specifically identified as pre-
sumptively suspect. And it may also be misplaced in cases (like Andrews)
where the basis of classification is deemed analogous to those enumerated.
But it is much less clear that the principle of formal equality is not an
appropriate starting point in cases where legislation classifies on the basis
of a non-enumerated, non-analogous ground. We return to this question
below.
Finally, even if the similarly situated test has been rejected as a test in
all cases, it would be wrong to assume that the essence of it disappears from
equality analysis under the Charter Wherever a legislative distinction bur-
dens one group at the expense of another such that section 15 is violated,
the section 1 analysis will have to confront the question of whether there
are differences between these two groups that would justify the different
treatment. Indeed, it is precisely because the principle of formal equality is
so question-begging that it cannot be banished from the analysis altogether.
It is like pushing in a bump on a balloon. It may be flattened, but the bump
will reappear at some other place on the balloon.
181f all it requires is that legislators do not act irrationally, it is exceptionally easy to satisfy.
And if it is to be given more “bite”, one must ultimately articulate a theory of substantive
rights that provides criteria of relevance upon which one can draw. See P Westen, supra, note
16; M. Gold, “Moral and Political Theories in Equality Rights Adjudication” in J. Weiler and
R. Elliot, eds., Litigating the Values ofa Nation: The Canadian Charter ofRights and Freedoms
(Toronto: Carswell, 1986) 85 at 90-91. As such, it is difficult to disagree with the comment that
the principle of formal equality “seems indisputable as far as it goes, but perhaps only because
it goes almost nowhere”: W. Black & L. Smith, “Section 15 Equality Rights Under the Charter
Meaning, Institutional Constraints and a Possible Test” in G. Beaudoin, ed., Your Clients and
the Charter: Liberty and Equality: proceedings of the 1987 Colloquium of the Canadian Bar
Association in Montreal (Cowansville: Y. Blais, 1988) 225.
19This point was underlined by the Ontario Court of Appeal in R. v. Century 21 Ramos
Realty Inc. and Ramos (1987), 58 O.R. (2d) 737 at 756-57, [1987] 1 C.T.C. 340.
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II. Section 15: Framework of Analysis
Andrews affirms a number of familiar points regarding the interpretation
of section 15(1): section 15 applies to both the substance of the law and its
manner of application;2 0 the scope of section 15 is limited to inequalities
in the formulation and application of law, and neither provides for material
equality between individuals or groups, nor imposes duties on individuals
or groups to treat each other equally; 21 and the narrow interpretations of
equality advanced by the Court under the Canadian Bill of Rights will not
be carried over into the Charter.22
However, Andrews leaves open a number of important issues concer-
ning the scope of section 15 and the nature of the interests it is designed
to protect. The Court does not settle the question of whether section 15 is
limited to the protection of socially disadvantaged groups, as some have
argued,23 and does not address directly the question of whether corporations
can benefit from the protection of section 15.24 As well, the Court does not
20Andreivs, supra, note 1 at 171, McIntyre J.
2IIbid. at 163-64. This latter point is merely an application of the principle that the Charter
does not apply directly to private action. See Retail, Wholesale and Department Store Union,
Local 580 v. Dolphin Delivery Ltd, [1986] 2 S.C.R. 573, 71 N.R. 83, [1987] 1 W.W.R. 577, 9
B.C.L.R. (2d) 273.
22 Most commentators assumed that the combination of the entrenchment of the Charter
and the text of s. 15 itself would result in the Court repudiating the conception of equality it
had advanced under the Canadian Bill of Rights. Indeed, Andrews suggests that Bliss v. A.G.
Canada, [1979] 1 S.C.R. 183, 92 D.L.R. (3d) 417, 78 C.L.L.C. 14,175, and A.G. Canada v.
Lavell, [1974] S.C.R. 1349, 38 D.L.R (3d) 341, 23 C.R.N.S. 197, would both be decided dif-
ferently under the Charter. See Andrews, supra, note I at 167-71, McIntyre J.In two cases
decided after Andrews, the Court rejected the definitions of equality before the law set out
under the Canadian Bill of Rights. In Brooks, Allen and Dixon et al. v. Canada Safeway Ltd
(1989), 94 N.R. 373, the Supreme Court overruled Bliss in holding that discrimination based
upon pregnancy did constitute sex discrimination under Manitoba’s Human Rights Act, S.M.
1974, c. 65, as amended; and in R. v. Turpin (May 4, 1989), File Nos. 20509 and 20510, the
Supreme Court rejected the definition of equality set out in R. v. Burnshine, [1975] 1 S.C.R.
693, 44 D.L.R. (3d) 584, [1974] 4 W.W.R. 49.
23That s. 15(1) is limited to the protection of disadvantaged groups was underlined by Justice
Wilson in Andreivs, supra, note I at 152, and was central to the Court’s holding in R. v. Turpin,
supra, note 22 at 41. For a general discussion of the issue, see Black & Smith, supra, note 18
at 245-47.
24There are two discrete situations. First, are corporations included in the term “every in-
dividual”? The case law is virtually unanimous that they are not. See, e.g., Energy Probe v.
A.G. Canada (1987), 42 D.L.R. (4th) 349, 61 O.R. (2d) 65 (H.C.). The second situation arises
by virtue of the principle affirmed in R. v. Big M Drug Mart Ltd, [1985] 1 S.C.R. 295, 18
D.L.R. (4th) 321, 58 N.R. 81, [1985] 3 W.W.R. 481, 18 C.C.C. (3d) 385, that a corporation
can challenge the constitutionality of legislation even if it cannot possess the right itself. Here
the case law is less uniform, and it remains an open question whether the Big M principle will
be held to extend to s. 15. For an argument that standing should not be granted, see Institute
of Edible Oil Foods v. R. (1987), 63 O.R. (2d) 436 at 442-43 (H.C.).
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decide whether there are any limits to the kinds of legislative classifications
that engage section 15.25 Accordingly, for the time being at least, claims
based upon any ground whatsoever, whether brought by individuals, groups
or (possibly) corporations, however “advantaged” they might be, would
appear to be justiciable under section 15. We return to some of these issues
in a subsequent section of this comment.
Although the Court left these issues open, it did provide a clear fra-
mework for analyzing cases where a law classifies on the basis of an enu-
merated or analogous ground. It also provided guidance as to the criteria
relevant to determining whether a particular ground is analogous to those
enumerated.
To establish a breach of section 15, the complainant must establish two
elements: that the law offends one of the equality rights guaranteed by section
15 and that the law is discriminatory:
it is not enough to focus only on the alleged ground of discrimination and
decide whether or not it is an enumerated or analogous ground. The effect of
the impugned distinction or classification must be considered. …[A] role must
be assigned to section 15(1) which goes beyond the mere recognition of a legal
distinction.
26
2 5Justice McIntyre writes: “The enumerated grounds in s. 15(1) are not exclusive and the
limits, if any, on grounds for discrimination which may be established in future cases await
definition” (Andrews, supra, note I at 175). Justice Wilson agrees with Justice McIntyre “that
it is not necessary in this case to determine what limit, if any, there is on the grounds covered
by s. 15.. .” (ibid. at 153, Wilson J.). Justice La Forest is the only member of the Court to
state his views clearly, arguing that the protection ofs. 15 should extend beyond the prohibition
of discrimination on enumerated or analogous grounds (ibid. at 194). Although Justice Wilson
is less clear, there are aspects of her opinion that suggest that she would support the idea of
limiting the scope ofs. 15, notably her conception ofs. 15 as “designed to protect those groups
who suffer social, political and legal disadvantage in our society” (ibid. at 154). In addition,
the opinion of Justice McIntyre can be read as supporting some limitation on the scope of s.
15, especially in his endorsement of the “enumerated and analogous grounds” approach as
one that “most closely accords with the purposes of s. 15” (ibid. at 182). More recently, the
Supreme Court has clarified its view on the scope of s. 15(1). In Reference re The Workers’
Compensation Act, 1983 (Nfld.) (April 24, 1989) [unreported], the Supreme Court dismissed a
challenge to the Workers’ Compensation Act, 1983, S.N. 1983, c. 48, stating that the “situation
of the workers and dependents here is in no way analogous to those listed in s. 15(1), as a
majority in Andrews stated was required to permit recourse to s. 15(1)” (La Forest J. at 1,
emphasis added). In R. v. Turpin, supra, note 22, the Court rejected a challenge to s. 430 of
the Criminal Code which gives an accused charged with murder in Alberta (but nowhere else)
the right to elect trial by judge alone. The Court held that although the accuseds’ rights to
equality had been infringed, persons charged with murder outside Alberta “do not constitute
a disadvantaged group in Canadian society within the contemplation of s. 15” (Wilson J. at
41.)
26Andrews, supra, note 1 at 182, McIntyre J.
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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 accorded by law
but, in addition, must show that the legislative impact of the law is
discriminatory.27
Once it has been established that section 15(1) has been infringed, and
assuming that section 15(2) is not available, the law will be struck down
unless it can be justified under section 1.
Regarding the criteria by which analogous grounds are to be identified,
Andrews appears to adopt the approach thai a number of courts and
commentators have advanced. 28 The core idea is to generate a set of criteria
that explain the enumerated grounds, using those criteria to assess whether
a non-enumerated ground shares a sufficient number of features so as to be
deemed analogous. These features include the presumptive irrelevance of
the ground to many legitimate legislative purposes, whether the group de-
fined by the classification has suffered a history of discrimination, the extent
to which they are relatively politically powerless, and whether the basis of
classification concerns those aspects of one’s person that are either beyond
one’s control or within that sphere independently protected by the
Constitution.
These factors were invoked in Andrews to justify characterizing citi-
zenship as an analogous ground.29 Although one might question whether
citizenship ought to be so classified,30 it appears as if this was a matter
conceded in argument by counsel for the Law Society of British Columbia.3 1
27Ibid.
28See, e.g., Smith, Kline & French Laboratories Ltd. v. Canada (A.G.) (1986), 34 D.L.R. (4th)
584 (EC.A.); M. Gold, “Equality Past and Future: The Relationship Between Section 15 of the
Charter and the Equality Provisions in the Canadian Bill of Rights” in Law Society of Upper
Canada, Equality: Section 15 and Charter Procedures (1985), A-i, at 4-7.
29See the discussion by Justice La Forest in Andrews, supra, note 1 at 195-97. Similar consi-
derations underlie the U.S. concept of “discrete and insular minorities” invoked by Madam
Justice Wilson in Andrews, supra, note 1 at 152. One can properly argue that the grounds
enumerated in s. 15 are not “personal” in the sense of being natural, but are rather social
constructs imposed on individuals by society. Nevertheless, it remains the case that groups
characterized by these constructs have been discriminated against historically.
30See, e.g., Black & Smith, supra, note 18 at 248. One can question the intelligibility ofJustice
La Forest’s statement in Andrews that “[c]itizenship is, at least temporarily, a characteristic of
personhood not alterable by conscious action. ..” (supra, note 1 at 195).
31’It was conceded that the impugned legislation does distinguish the respondents from other
persons on the basis of a personal characteristic which shares many similarities with those
enumerated in s. 15″ (Andrews, supra, note 1 at 195, La Forest J.).
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III. The Concept of Discrimination
The Court underlined two interpretive principles that a definition of
discrimination must satisfy: one should give meaning to all parts of section
15(1), and section 15(1) and section 1 should be kept analytically distinct.
Andrews settles a number of issues surrounding the meaning of discrimi-
nation, and thus provides welcome guidance to bench and bar on an issue
that had deeply divided the lower courts. It is not clear, however, that the
Court succeeded in satisfying either one of its two interpretive principles.
The Court rejects the view that any distinction constitutes discrimi-
nation, arguing that this approach fails to give adequate meaning to the
terms of section 15(1) itself.32 At the other extreme, the Court rejects the
view that discrimination means a distinction that is unfair or unreasonable,
arguing that it would rob section I of much of its role.33
Drawing upon conceptions of discrimination elaborated under Human
Rights legislation, the Court defines discrimination as follows:
discrimination may be described as a distinction, whether intentional or not
but based upon 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 mem-
bers 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 ca-
pacities will rarely be so classed. 34
A number of features of this definition should be underlined. By re-
jecting the need to establish a discriminatory intent, the Court gives section
15 a broader scope than the U.S. courts have given to the equal protection
clause of the Fourteenth Amendment. 35 Indeed, the Court regularly invokes
the importance of focussing on the impact of the law on individuals and
groups. This emphasis, when combined with approving references to the
32This is the view advanced in P. Hogg, Constitutional Law of Canada (Toronto: Carswell,
1985) at 800.
33This was the approach advanced by McLachlin J.A. (as she then was) in the British Co-
lumbia Court of Appeal decision in Andrews v. Law Society of British Columbia (1986), 27
D.L.R. (4th) 600 at 608-09, 2 B.C.L.R. (2d) 305 at 314-15.
34Andrews, supra, note 1 at 174-75, McIntyre J. For further elaboration on the meaning of
discrimination, see Janzen and Govereau v. Pharos Restaurant and Grammas (1989), 95 N.R.
8 1, where the Supreme Court held that sexual harrassment constituted sex discrimination under
Manitoba’s Human Rights Act, supra, note 22.
35See, e.g., Washington v. Davis, 426 U.S. 229 (1976).
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concepts of adverse impact and systemic discrimination, suggests that a
broad scope of protection is afforded by section 15.36
On the other hand, the definition is not without its limitations, and
can be seen as restricting the scope of section 15 in two ways. The first
concerns the kinds of interests protected by section 15. Even if the Court
ultimately decides that the scope of section 15 is not restricted to claims
based upon enumerated or analogous grounds, the Court effectively limits
the scope of section 15 by tying the definition of discrimination to the
concept of “personal characteristics”.
Second, notwithstanding the references to concepts of adverse effects
and systemic discrimination, it is important to underline the limits of the
concepts so approved. In discussing the meaning of equality, Justice Mc-
Intyre appears to adopt the view that it is the impact alone that counts, and
that even a law of universal application could offend equality:
[A] law expressed to bind all should not because of irrelevant personal differen-
ces have a more burdensome or less beneficial impact on one than another.37
But when the Court turns to the concept of discrimination, it defines it in
terms of a distinction in the law. 38 This suggests that only inequalities that
flow from legislative distinctions will be held discriminatory, and hence
contrary to section 15.39
Thus it would appear as if the Court in Andrews has settled a number
of issues around which lower courts and commentators have divided. But
at least as regards one central issue, appearances may be deceiving.
The Court purports to give a meaning and role to the phrase “without
discrimination” that is distinct from the approaches attributed to Professor
Hogg and Justice McLachlin, and which provides a “workable approach to
the problem” 40 of keeping sections 15 and 1 analytically distinct while giving
meaning to the terms within section 15 itself. But in light of the basic
36Regarding the focus on impact, see Andreivs, supra, note 1 at 165, McIntyre J. Regarding
adverse effect discrimination, the Court refers to its decision in Human Rights Comm. (Ont.)
v. Simpson-Sears Ltd, [1985] 2 S.C.R. 536 at 551. Regarding systemic discrimination, the
reference is its decision in Canadian National Railvay Co. v. Canada (Canadian Human Rights
Commission), [1987] 1 S.C.R. 1114, 40 D.L.R. (4th) 193, 27 Admin. L.R. 172, 87 C.L.L.C.
17,022.
37Andrews, supra, note 1 at 165, McIntyre J.
3
8So too is the Court’s view of what the s. 15 inquiry is all about: “What kinds of distinctions
will be acceptable under s. 15(1) and what kinds will violate its provisions?” (ibid. at 169).
39To be sure, most cases would still fall within the scope of s. 15, given that it is usually
possible to find some distinction in the law.
4Andrews, supra, note 1 at 182.
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framework of analysis advanced by the Court, it is not clear that the role
assigned to the concept of discrimination accomplishes that objective.
The Court held that the fact that legislation classifies on an enumerated
or analogous ground is not determinative of whether it violates section 15.
Nor is it sufficient that a complainant show that he or she has been deprived
of some benefit or protection available to others. As mentioned earlier, there
must be a finding of discrimination. But when applied to the actual facts
in Andrews, all of these distinctions appear to collapse:
The distinction [between citizens and non-citizens] therefore imposes a burden
in the form of some delay on permanent residents who have acquired all or
some of their legal training abroad and is, therefore, discriminatory.41
As has been noted elsewhere, 42 litigants do not come to court arguing
that they have been granted a benefit for which they are not entitled. Real
cases always involve the claim that the impugned legislative classification
results in a disadvantage. Thus, at least in the context of claims based upon
enumerated or analogous grounds, the concept of discrimination introduces
no additional element to the test of whether equality rights have been in-
fringed. There will always be discrimination in the sense defined by the
Court. Moreover, the Court’s test is indistinguishable from that offered by
Professor Hogg. As a practical matter, any distinction automatically sends
you to section 1.43
On the other hand, if the concept of discrimination means anything
more than a classification creating a disadvantage, it threatens to introduce
the question of the reasonableness and justification for the impugned legis-
lation into the terms of section 15(1). This approach was rejected by the
Court in Andrews as failing to respect the analytical distinction between
sections 15(1) and 1.
The difficulty (if not impossibility) of holding the middle ground bet-
ween the two approaches rejected by the Court is not due to any intellectual
Ct L.R. 131 at 146.
41Ibid. at 183, McIntyre J. (emphasis added),
42M. Gold, “A Principled Approach to Equality Rights: A Preliminary Inquiry” (1982) 4 Sup.
43Admittedly, Professor Hogg’s analysis did not limit the scope of s. 15 to enumerated and
analogous grounds. See Hogg, supra, note 32. But the Court in Andrews did not decide that
issue definitively. In any event, the Court’s critique of Professor Hogg’s approach was not based
on the need to restrict the scope of s. 15, but rather on the need to give meaning to the terms
within s. 15.
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failing of the Court. 44 As will be argued in the concluding section of this
comment, it is endemic to any attempt to give separate meaning to the
various terms in sections 15 while still preserving a distinct role for section
1. At least the Court spoke definitively on these issues, providing some
guidance to bench and bar. The same cannot be said of the Court’s treatment
of section 1.
IV. The Standard(s) of Review Under Section 1
It is now a commonplace to observe that the Supreme Court is divided
on the question of how to apply section 1 of the Charter.45 Andrews reflects
and perhaps deepens this division, and it leaves unresolved the central
question concerning the standard of review to apply in equality rights cases.
Are there different standards depending on the nature of the case and, if so,
what are those standards?
Justice McIntyre (joined by Justice Lamer) would have upheld the ci-
tizenship requirement under section 1. He rejects the stringency of the test
set out in Oakes, arguing that a more flexible and deferential standard is
appropriate. Legislative objectives need not be “pressing and substantial”,
only “desirable”, and courts ought not quickly to conclude that legislative
“Indeed, any case decided under s. 15 could serve to illustrate the dilemma. Consider the
following passage from the case of Colangelo v. Mississauga (1988), 30 O.A.C. 26, where the
Ontario Court of Appeal struck down provisions in the Municipal Act which statute-barred
persons injured on ice or snow if they failed to provide timely notice to the municipality, while
persons injured in other circumstances were not statute-barred.
It is difficult to conclude other than that the different treatment accorded to snow
or ice claimants is discriminatory having regard to its prejudicial and invidious
purpose and effect. The valuable right of a snow or ice claimant will be barred
although failure to give notice results in no prejudice to a municipality whereas
other claimants in the same position are allowed to pursue their claims.” (ibid. at
37).
Either the concept of “prejudicial and invidious purpose and effect” refers to the disadvantage
that the snow or ice claimant suffers, or it refers to the fact that the Court believed that the
rule could not be justified. In the former case it adds nothing to the test formulated by Professor
Hogg; in the latter, it introduces notions of reasonableness and justification.
45M. Gold, “Of Rights and Roles: The Supreme Court and the Charter” (1989) 23 U.B.C.
L.Rev. (forthcoming); R. Elliot, “The Supreme Court of Canada and Section I – The Erosion
of the Common Front” (1987) 12 Queen’s L.J. 277; L. Weinrib, “The Supreme Court of Canada
and Section One of the Charter” (1988) 10 Sup. Ct L.R. 469.
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initiatives were unreasonable. 46 Indeed, he rejects the idea that there is a
single test under section 1:
There is no single test under section 1; rather, the Court must carefully engage
in the balancing of many factors in determining whether an infringement is
reasonable and demonstrably justified. 47
Although Justice La Forest does not find the citizenship requirement
to be justified under section 1, his general approach to section 1 is not
appreciably different than that of Justice McIntyre. About that approach he
writes:
I am in general agreement with what he has to say about the manner in which
legislation must be approached under the latter provision, in particular the
need for a proportionality test involving a sensitive balancing of many factors
in weighing the legislative objective. If I have any qualifications to make, it is
that I prefer to think in terms of a single test for section 1, but one that is to
be applied to vastly differing situations with the flexibility and realism inherent
in the word “reasonable” mandated by the Constitution. 48
Justice Wilson (joined by Justices Dickson and I’Heureux-Dub6) ap-
plies the Oakes test in its full rigor. As the following passage reveals, however,
her willingness to do so is a function of the kinds of cases that reach section
46
[G]iven the broad ambit of legislation which must be enacted to cover various
aspects of the civil law dealing largely with administrative and regulatory matters
and the necessity for the Legislature to make many distinctions between individuals
and groups for such purposes, the standard of “pressing and substantial” may be
too stringent for application in all cases. To hold otherwise would frequently deny
the community-at-large the benefits associated with sound social and economic
legislation. In my opinion, in approaching a case such as the one before us, the first
question the Court should ask must relate to the nature and the purpose of the
enactment, with a view to deciding whether the limitation represents a legitimate
exercise of the legislative power for the attainment of a desirable social objective
which would warrant overriding constitutionally protected rights.
(Andrews, supra, note I at 184, McIntyre J.)
[I]t must be recognized that Parliament and the Legislatures have a right and a
duty to make laws for the whole community: in this process, they must make
innumerable legislative distinctions and categorizations in the pursuit of the role
of government. When making distinctions between groups and individuals to
achieve desirable social goals, it will rarely be possible to say of any legislative
distinction that it is clearly the right legislative choice or that it is clearly a wrong
one ….
(ibid. at 185).The standard of review advanced in these passages is strikingly similar to the
conception of equality before the law advanced by Justice McIntyre in MacKay v. R., infra,
note 55. See M. Gold, “Comment” (1982) 60 Can. Bar Rev. 137. There is some irony in the
fact that the opinion of Justice McIntyre goes out of its way to distance itself from the definition
of equality contained in the cases decided under the Canadian Bill of Rights, and then rein-
troduces similar notions into s. 1.
47Andrews, supra, note I at 185, McIntyre J.
48Ibid. at 197-98, La Forest J.
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1 analysis. Of the requirement that the legislative objective be “pressing
and substantial”, Justice Wilson writes:
This, in my view, remains an appropriate standard when it is recognized that
not every distinction between individuals and groups will violate section 15.
If every distinction between individuals and groups gave rise to a violation of
section 15, then this standard might well be too stringent for application in all
cases and might deny the community at large the benefits associated with sound
and desirable social and economic legislation. This is not a concern, however,
once the position that every distinction drawn by law constitutes discrimi-
nation is rejected as indeed it is in the judgment of my colleague, McIntyre J.
Given that section 15 is designed to protect those groups who suffer social,
political and legal disadvantage in our society, the burden resting on govern-
ment to justify the type of discrimination against such groups is appropriately
an onerous one. 49
This passage is open to two readings. Either a strict standard of review
is justified because the scope of section 15 is limited in some way (i.e., to
enumerated or analogous grounds, or to the protection of the disadvantaged)
or it is justified because not every legislative distinction will amount to
discrimination under section 15. The difference between these two inter-
pretations is important. If the former is correct, it suggests the possibility
that a different standard of review would be applied were the scope of section
15 to be broadened beyond the enumerated and analogous grounds. Ho-
wever, if the latter is correct, it would not necessarily follow that a less
rigorous standard would be applied even if the scope were broadened, as-
suming that a legislative distinction were found to be discriminatory.
For reasons of institutional legitimacy and competence, it can be argued
that courts ought to apply a more relaxed standard of review in cases based
upon non-analogous grounds. Given the role and definition of discrimi-
nation in the application of section 15, however, this view seems proble-
matic. Would it not be fitting and proper that the government be required
to justify the law every bit as strictly as in the case based upon an enumerated
or analogous ground? The answer (like so much in Andrews) is not self-
evident.
For the moment it suffices to underline the following points. First, the
Court in Andrews appears equally divided on the general approach to section
1, even though all members of the Court agreed that there had been dis-
crimination on an analogous ground. There is no reason to doubt that this
disagreement will carry over in cases based upon enumerated grounds. Nor
is there reason to dismiss the possibility that some judges will draw dis-
49Ibid. at 154, Wilson J.
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tinctions between some of the enumerated grounds themselves. 50 Second,
many (if not all) members of the Court in Andrews appear willing to relax
the standard of review in certain kinds of cases. For example, all three
opinions allude to “social and economic legislation” as if this were a category
of legislation calling for a greater degree ofjudicial deference. 51 Based largely
on the U.S. experience under the Bill of Rights, this way of characterizing
legislation is not a particularly helpful way of analyzing or predicting when
a court ought to defer to legislative judgments. What legislation is not either
“social” or “economic” in some sense? In any event, legislation does not
come so neatly packaged, and it is hard to resist the conclusion that one
attaches this label to legislation after one has decided to uphold it. This only
reinforces the point made earlier that Andrews leaves unresolved all of the
key questions concerning the appropriate standard of review in equality
cases.
V. The Scope of Section 15: What Did Andrews Leave Open?
The Court explicitly leaves open the possibility that section 15 applies
to legislation that classifies on any ground whatsoever, not only legislation
that classifies on the basis of enumerated or analogous grounds. This forms
a significant proportion of the cases decided to date under section 15, and
it is reasonable to expect that litigation of this kind will continue to be
brought unless and until the Supreme Court clearly holds that these cases
are not justiciable under section 15.
I confess to being of two minds about the merits of restricting the scope
of section 15, but this will not be pursued further.52 The point to be made
501 continue to believe that one standard, and a fairly rigorous one at that, is appropriate
for all claims based upon enumerated or analogous grounds. See, M. Gold, “Litigating Equality:
Some Formative Issues” in L. Smith et al., eds., Righting the Balance: Canada’s New Equality
Rights (Saskatoon: Canadian Human Rights Reporter, 1986) 243 at 246-47. And, as suggested
below, a similarly rigorous standard might also be justified in cases based upon non-analogous
grounds, assuming that a stringent test is imposed under s. 15.
5 Andrews, supra, note 1 at 154, Wilson J.; at 194, La Forest J.; at 185, McIntyre J.
52It is beyond the scope of this comment to assess the arguments for and against restricting
the scope of s. 15. For a helpful review of the arguments on both sides, see Black & Smith,
supra, note 18. Those who would restrict the scope of s. 15 to legislation that classifies on
grounds that are either enumerated or analogous to those enumerated argue that the purpose
of s. 15 is not intended to remedy all unfairness in law, but rather to protect historically
disadvantaged groups from discrimination. To the extent that the enumerated (and analogous)
grounds define groups who are disadvantaged, restricting the scope of s. 15 accomplishes that
objective. Underlying the argument for restricting the scope of s. 15 is also a concern for the
legitimacy of judicial review, a fear that equality jurisprudence will become distorted if the
case law is dominated by cases brought by the advantaged, a concern about the institutional
capacities of courts, and the belief that some limiting principles need to be developed lest the
courts drown in a sea of equality litigation.Those who deny that there should be any a priori
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here is a narrower one. Not only is Andrews silent as to the proper test for
analyzing legislation that classifies on non-analogous grounds, but it may
very well have closed the door on most, if not all, of the possible tests
appropriate for the resolution of such issues.
The problem is to establish a definition of equality for such cases.53
One possibility would be to treat all such legislative distinctions as violating
equality, moving then to the definition of discrimination to determine whe-
ther section 15 was infringed. The obvious difficulty is in squaring this
approach with the oft-repeated statement in Andrews that not every dis-
tinction will offend equality. Indeed, one might wonder why the Court de-
voted the attention it did to identifying citizenship as an analogous ground,
if the first step in the process would be so easily satisfied in cases of non-
analogous grounds. Moreover, given that legislative distinctions based upon
enumerated and analogous grounds are generally considered to be more
suspect than others, and deserving of greater judicial scrutiny, it would seem
bizarre to make it easier for a claim based on a non-enumerated ground to
satisfy the first step.
In recognition of the special status of the enumerated grounds and those
analogous to them, some commentators have argued that an applicant
should bear a greater burden to establish a violation of section 15 when the
claim is based upon a non-analogous ground. Typically, this would involve
requiring the applicant to demonstrate that the classification was not rea-
sonably related to the legislative purpose, or some variation on this theme.54
The difficulty here is the insistence in Andrews that any consideration of
the reasonableness of orjustification for the legislation must take place under
section 1. For similar reasons, it does not seem open to adopt the approach
limits invoke the idea that s. 15 should protect against the unreasonable and arbitrary exercise
of legislative power, and that any attempt to limit the grounds to those either enumerated or
analogous necessarily results in the possibility that grossly unfair legislation could not be at-
tacked. Concerns about the legitimacy and capacity of courts are not dismissed, but it is argued
that there is nothing particularly unique about s. 15 in this regard. Having given a broad
interpretation to the Charter as a whole, and in particular to s. 7, the courts already are drawn
into complicated and controversial areas. In any event, such concerns ought to be addressed
in terms of the standard of review, not by an automatic rule closing the courtroom door to
whole categories of cases.
53A related possibility would be to treat all legislative distinctions that imposed a burden as
violating equality. This appears to be what the Court did in R. v. Turpin, supra, note 22 at 36,
where Justice Wilson characterizes equality before the law as “designed to advance the value
that all persons be subject to the equal demands and burdens of the law and not suffer any
greater disability in the substance and application of the law than others”. Because of the
realities of litigation, however, this is the equivalent of treating all distinctions as violating
equality.
54This was the thrust of the approach I developed in Gold, supra, note 45. For a similar
approach, see Black & Smith, supra, note 18.
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advanced by Justice McIntyre in MacKay v. R. 55 This approach was expli-
citly distinguished in Andrews on the basis that section 1 of the Charter
required a different approach than that developed under the Canadian Bill
of Rights.56
The only other plausible approach is the similarly situated test. Were
the Court to allow claims based upon non-analogous grounds, this would
seem to be the best approach. But pending a clear statement by the Supreme
Court, it is hard to imagine either a lawyer or judge relying on the similarly
situated test in light of the rough ride it got in Andrews.
In sum, there are only two possibilities. Either the Court has in fact
decided that the scope of section 15 is limited, or everything in Andrewvs
must be confined to cases dealing with analogous grounds. The latter seems
implausible, given that the general discussion of the meaning of equality,
the rejection of the similarly situated test, and the repudiation of Canadian
Bill of Rights jurisprudence, clearly were intended to apply generally to
section 15. The former is unsatisfactory: the case itself did not raise the
issue on its facts, and the Court clearly left the issue open in its reasons. 57
In practical terms, however, most challenges based upon non-analogous
grounds will fail on the basis of the definition of discrimination advanced
by the Court.58 In this respect, the scope of section 15 has been limited
significantly. But losing the case is not the same thing as being denied an
opportunity to argue it, and in the short and medium run at least, we should
expect such cases to continue to be brought.
VI. Conclusion
The Court in Andrews had a difficult task. On the one hand, it felt
constrained to offer guidance to bench and bar on the general approach to
interpreting the equality rights. This, after all, is one of its most important
functions as a court of last resort. On the other hand, the Court clearly
wished to keep its powder dry on a number of important issues not directly
raised by the facts of Andrews. Accordingly, it left certain issues open. It is
difficult to fault the Court for leaving these issues to an occasion where they
are raised directly by the case before it. Unfortunately, these two legitimate
considerations pulled in opposite directions, and there are aspects of An-
drews, notably the discussions of formal equality and the scope of section
55[1980] 2 S.C.R. 370 at 407, 114 D.L.R. (3d) 393 at 423-24, 33 N.R. 1 at 22-23, [1980] 5
W.W.R. 385 at 416-17.
56Andrews, supra, note 1 at 177-78, McIntyre J.
57But see La Forest J. in Reference re The Workers’ Compensation Act, 1983 (Nfld.), supra,
note 25 at 1.
58See, e.g., R. v. Turpin, supra, note 22.
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15, that are unsatisfactory as a result. But in large measure this flowed from
the dilemma in which the Court found itself.
In other respects, it was noted that the Court may have failed to ac-
complish its objective of giving a meaning to the different parts of section
15 while still providing a clear separation between section 15 and section
1. And it was also noted that the Court appears equally divided on the
question of the standard of review under section 1. But lest I be misun-
derstood, these are difficulties that flow in large measure from the nature
of equality rights themselves.
The equality provisions in the Charter are like the three-dimensional
image in a holographic plate. Although one may break the plate into a
thousand pieces, shining a laser beam through any one of the shards will
reproduce the image in its entirety. So too is it with the concepts of “equa-
lity”, “discrimination”, “reasonableness” and “justification”. Out of any
one of these concepts can be generated all of the principles that we distribute
amongst the various clauses of sections 15 and 1. At the risk of overstating
the case, to criticize the Court for some of its shortcomings of analysis in
Andrews is to ignore the very nature of equality itself.
