Comment on Andrews v. Law Society of British Columbia and
Section 15(1) of the Charter: the Emperor’s New Clothes?
David W. Elliott*
Synopsis
Test for Equality
Introduction
I.
II. Relationship between Section 15(1) Equality and Discrimination
III. Discrimination
A. Force of Law
B. Equal Treatment, Differential Impact, and Relative Disadvantage
C. Enumerated or Analogous Grounds
Justification
A.
B. Section 1
Judicial Activism
Section 15(1)
IV.
V.
Conclusion
Introduction
Shortly after the Supreme Court’s decision in Andrews v. Law Society of
British Columbia,’ the Ontario Court of Appeal remarked that section 15(1) of
the Charter2 “has just put on a new set of clothes.”3 This comment considers
*Department of Law, Carleton University.
I Law Society of British Columbia v. Andrews, [1989] 1 S.C.R. 143, 56 D.L.R. (4th) 1 [herein-
after Andrews cited to S.C.R.], aff’g (1986), 27 D.L.R. (4th) 600, [1986]4 W.W.R. 242,2 B.C.L.R.
(2d) 305 (C.A.), McLachlin J.A., rev’g (1985), 22 D.L.R. (4th) 9, [1986] 1 W.W.R. 252, 66
B.C.L.R. 363 (S.C.), Taylor J.
2Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B of the
Canada Act 1982 (U.K.), 1982, c. 11 [hereinafter Charter].
3Energy Probe v. A.G. Canada (1989), 58 D.L.R. (4th) 513 (Ont. C.A.).
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these clothes. How has the highest court fashioned them? What do they look
like? Are we getting a better fit? Since Andrews is one of the Supreme Court’s
first major decisions on section 15(1), 4 these are important questions.
Some may object to the reasoning in Andrews, saying that the Court has
misunderstood the “similarly situated” test.5 Others may criticise the lack of a
coherent view of equality and discrimination. Some may think Andrews goes
too far; others, that it does not go far enough. Still others may be concerned
about the differing views of the justification for inequality. It may be, however,
that all these concerns fall short of the mark. The issue may be less the adequacy
of the Court’s response to the Charter equality challenge, and more the nature
of the challenge itself.
Mark Andrews, a British subject permanently resident in Canada, was ref-
used admission to the B.C. Bar because he was not a Canadian citizen. The
Barristers and Solicitors Act6 required Canadian citizenship as a prerequisite to
admission to the bar. Andrews argued that this requirement violated section
15(1) of the Charter. Although his challenge failed before the B.C. Supreme
Court, it was upheld by the B.C. Court of Appeal, and by a majority of the
Supreme Court of Canada.
Five issues which were raised in Andrews merit special attention: (1) What
is the test for the “equality” requirements in section 15(1) of the Charter?;7 (2)
What is the relationship between section 15(1).equality and section 15(1) dis-
crimination?; (3) What is the relationship between section 15(1) and section 1?;
(4) What is the test for section 1 in equality cases? and (5) What does this deci-
sion tell us about the role of the judiciary in Charter equality cases?
Three Supreme Court judges gave individual reasons: McIntyre J., for him-
self and Lamer J.; Wilson J., for herself, Dickson C.J., and l’Heureux-Dub6 J.;
and La Forest J. McIntyre J.’s response to the first question had general but
qualified support from the other members of the Court; the Court was evenly
split in its response to the third question; and Wilson J.’s response to the fourth
question gained the support of four of the six judges. Let us try to unravel the
five general issues.
4Reference Re an Act to Amend the Education Act (Ontario), [1987] 1 S.C.R. 1148, 1140 D.L.R.
(4th) 18, 77 N.R. 241. However, this decision addressed the relation between Charter provisions,
such as section 15, and the Constitution Act, 1867 but not the specific content of section 15(1).
55.The Ontario Court of Appeal came close to suggesting this in Catholic Children’s Aid Society
of Metropolitan Toronto v. T.S. (1989), 60 D.L.R. (4th) 397 [hereinafter Children’s Aid Society].
6R.S.B.C. 1979, c. 26, s. 42.
7Andrews, supra, note 1 did not address the other major Charter equality guarantee, section 28,
and contained only a passing reference to section 15(2), the affirmative action provision.
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Test for Equality
McLachlin J.A. of the B. C. Court of Appeal had used the comparative
similarly situated test’ for equal protection and benefit of the law guaranteed in
section 15(1).’ According to this test, those who are similarly situated should be
similarly treated.
Before the Supreme Court’s decision, this test had gained considerable
acceptance. The Ontario Court of Appeal, for example, had included it as the
first two steps of a general three-part approach to analyzing section 15(1),
requiring that a complainant (i) identify the class of persons alleged to be treated
differently from another class of persons; (ii) show that the first class is simi-
larly situated to the second class in relation to the purpose of the law, and (iii)
show that the purpose or effect of the law challenged is discriminatory in the
sense of being pejorative or invidious in purpose or effect. I
With the support of the whole Court, McIntyre J. launched a verbal broad-
side against this test, castigating it as “seriously deficient.”‘” He considered it
8The test was expounded in J. Tussman and J. tenBroek, “The Equal Protection of the Laws”
(1949) 37 Calif. L. Rev. 341.
9McLachlin J.A. had gone on to find that Andrews was similarly situated with all other appli-
cants who had Andrews’ qualifications for the bar and were Canadian citizens, to find that the cit-
izenship requirement was an unreasonable or unfair means for the legislature to seek to achieve
its objective, and to conclude that this legislative measure could not be saved under section 1 of
the Charter.
‘0 See R. v. Ertel (1987), 35 C.C.C. (3d) 398 at 418-22, 20 O.A.C. 257, and R. v. Turpin (1987),
22 O.A.C. 261 at 266, 36 C.C.C. (3d) 289, 60 C.R. (3d) 63, aff’d but with criticism of the similarly
situated test in [1989] 1 S.C.R. 1296 [hereinafter Turpin cited to S.C.R.]. For other variations of
the test, see Re McDonald and R. (1985), 51 O.R. (2d) 745 at 765 (C.A.); R. v. R.L. (1986), 26
C.C.C. (3d) 417 at 424-25 (Ont. C.A.); Reference Re the Act to Amend Education Act (1986), 25
D.L.R. (4th) 1 at 42-43, 53 O.R. (2d) 513, 13 O.A.C. 241; Re Blainey and Ont. Hockey Assn
(1986), 26 D.L.R. (4th) 728 at 739-40,54 O.R. (2d) 513, 14 O.A.C. 194; Bregman v. A.G. Canada
(1986), 57 O.R. (2d) 409, 18 O.A.C. 82, 33 D.L.R. (4th) 477; R. v. Century 21 Ramos Realty Inc.
(1987), 58 O.R. (2d) 737 at 756, 19 O.A.C. 25, 32 C.C.C. (3d) 353, 37 D.L.R. (4th) 649; and Re
McKinney and Bd of Governors of the University of Guelph (1987), 46 D.L.R. (4th) 193 (Ont.
C.A.), leave to appeal to S.C.C. granted April 21, 1988. In the latter decision, the court focussed
on the third step of the test, rejecting the reasonableness / fairness approach of the B.C.C.A. in
Andrews, supra, note 1.
1Andrews, supra, note I at 166. The similarly situated test, as formulated in R. v. Ertel, supra,
note 10 was vigorously criticised in M.D. Lepofsky and H. Schwartz, “Section 15 – An Erroneous
Approach to the Charter’s Equality Guarantee: R. v. Ertel” (1988) 67 Can. Bar Rev. at 115.
McIntyre J. made some, although not all, of the criticisms put forth in the Lepofsky and Schwartz
article. As well as criticising the rigidity of the test, as does McIntyre J., Lepofsky and Schwartz
criticised what they regard as its subjective, open-ended nature. They said that whether individuals
or classes are similarly situated in regard to a particular legislative purpose depends in large part
on how broadly an individual judge wishes to characterise the purpose. The Supreme Court
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too mechanical and rigid to handle the true complexity of equality. He criticised
its”‘similarly situated” branch as requiring merely similar treatment for all to
whom a particular law applies, and for all members of the same group. 2
Equality, he suggested, must look beyond those subject to an individual law or
within a single group. He said the “similarly treated” branch focuses on the
treatment given by government rather than its effect on the complainant, and is
both too narrow and too wide. 3 He claimed it ignores the fact that identical
treatment “may frequently produce serious inequality”, 4 and cannot account for
the fact that some distinctions do not violate equality.
Where does this leave the similarly treated test? McIntyre J. described
equality as “a comparative concept, the condition of which may only be attained
or discerned by comparison with the condition of others in the social and polit-
ical setting in which the question arises”. 5 He called it an ideal that “a law
expressed to bind all should not because of irrelevant personal differences have
a more burdensome or less beneficial effect on one than another.”‘ 6
These general comments on equality were supported by the entire Court. 7
They might translate into an inequality test resembling the following:” (i) deter-
mine the legislative purpose, (ii) look for those who are similarly situated to the
complainant in the broad sense of being in the same social and political setting
(and not simply subject to the same law or within the same group) which is rel-
evant to the legislative purpose, (iii) determine if the claimant is affected differ-
ently as a result of an irrelevant personal difference, and (iv) determine if this
different effect amounts to a relative disadvantage for the complainant.
If this is so, the Court is in the confusing position of rejecting the similarly
situated test 9 but retaining much of its comparative framework. The real
movement here may be one of attitude, not linguistics. The Court is stressing
that comparisons must be broadly applied, with an emphasis on inter-law, inter-
group similarities and differences, and on effect rather than intention. The Court
recently agreed with two other criticisms in the Lepofsky and Schwartz article: see infra, notes 67
and 76.
12Andrews, ibid. at 166-67, McIntyre J., and Lepofsky and Schwartz, ibid. at 119.
13Andrews, ibid. at 167-68, McIntyre J., and, generally, Lepofsky & Schwartz, ibid.
14Andrews, ibid. at 164, McIntyre J.
’51bid., McIntyre J.
161bid. at 165, McIntyre J.
17 Ibid. at 151, Wilson J., and at 193, La Forest J.
18McIntyre J. does not do this, as his focus is on section 15(1) discrimination which will be dis-
cussed in part III.
Andrews, supra, note 1; Turpin, supra, note 10 at 1332.
19The Supreme Court has since said that the similarly situated test was “clearly rejected” in
20Ontario courts seem to consider that much of the framework has survived: see Doe v.
Municipality of Metropolitan Toronto Commissioners of Police (1989), 58 D.L.R. (4th) 396 and
Children’s Aid Society, supra, note 4.
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seems to be signalling that Charter equality must go beyond traditional, formal-
istic concepts, and include a more “post-liberal”‘” emphasis on equality of
condition.
On the basis of the Court’s approach to the similarly situated test, it appears
that, as I will suggest later, it is taking an activist route to equality.
Unfortunately, Andrews provides no clear answers as to the implications of this
approach or as to how far the Court proposes to go.’
II. Relationship between Section 15(1) Equality and Discrimination
McIntyre J. said that the equality guarantees in section 15(1) are limited or
qualified by the requirement in that section that equality be “without discrim-
ination”.’ Wilson J. expressed “complete agreement” with McIntyre J.’s finding
on section 15(1).24 Hence, a majority of the Court held that the equality guaran-
tees cannot give rise to protection on their own and must always be accompa-
nied by discrimination pursuant to section 15(1).’
This finding could have a significant impact on section 15(1) interpretation
if the discrimination branch of section 15(1) is ,on its own, more restrictive than
the equality guarantees. McIntyre J. seemed to view discrimination as the gen-
eral converse of equality, but he appeared to qualify this equation by suggesting
that discrimination is especially concerned with the adverse effect of the law in
question.26 He said that the ideal of equality is not merely equal treatment but
21See M. Gold, “A Principled Approach to Equality Rights: A Preliminary Inquiry”, (1982) 4
Sup. Ct L. Rev. 130 at 154-59, still one of the best short discussions of Charter equality. At 156,
Gold says that “[iun terms of equality, the post-liberal conception represents an uneasy compromise
between two irreconcilable conceptions of equality (and hence justice). At one extreme is the ideal
of classical liberalism, that of formal equality. In its modem form, it looks askance at any deviation
from the norm of universal application of the law. At the other extreme is the ideal of radical egal-
itarianism, the idea that all material inequalities must be eliminated totally”.
22Wilson J., for three judges, expressed “complete agreement” with McIntyre J.’s views on sec-
tion 15(1) and La Forest J. expressed “substantial agreement”. This agreement was qualified, but
in regard to issues other than the test for equality.Some might argue that clear directions on equality
are unnecessary in light of the Court’s emphasis on the second branch of section 15(1), the pro-
hibition against discrimination. However, as formulated by McIntyre J., section 15(1) discrimina-
tion requires some of the same comparisons between people equally and unequally affected as does
the more general notion of equality. This will be discussed further in part III.
Wilson J., for Dickson C.J. and Beetz, Lamer, La Forest and L’Heureux-Dub6 JJ.
23Andreivs, supra, note 1 at 172.
24Ibid. at 151.
15This finding was reaffirmed in Turpin, supra, note 10 at 1331. The decision was rendered by
26McIntyre J. said at 172 that the rights to equality and equal protection “are granted with the
direction contained in section 15 itself that they be without discrimination. Discrimination … epi-
tomizes the worst effects of the denial of equality…”. At 181 he said that the words “without dis-
crimination” “are a form of qualifier built into s. 15 itself and limit those distinctions which are for-
bidden by the section to those which involve prejudice or disadvantage.” Since relative
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that “a law expressed to bind all should not because of irrelevant personal dif-
ferences have a more burdensome or less beneficial effect on one than
another.”’27 He defined discrimination as follows:
…discrimination is 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, bene-
fits, and advantages available to other members of society. Distinctions based on
personal characteristics attributed to an individual solely on the basis of associa-
tion 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.28
Although the concepts of inequality and discrimination may differ mainly
in their focus, some effect must be given to the section 15(1) phrase “and, in
particular, without discrimination based on race, national or ethnic origin, col-
our, religion, sex, age or mental or physical disability” which follows the word
discrimination. If section 15(1) equality is tied to the discrimination provision,
equality must also be limited by this phrase. Since the majority of the Court see-
med to agree that equality guaranteed in section 15(1) is restricted by the dis-
crimination provisions,’ the crucial question is how tightly this restriction
should be drawn. As we will see,3″ a majority of the Court may have drawn it
much less strictly than did McIntyre J.
Ill. Discrimination
McIntyre J. suggested that the form of discrimination which is prohibited
by section 15(1) is an intentional or unintentional government distinction or
classification which:
(a) has the force of law; (b) denies equal treatment to the complainant or
has a differential effect on him or her, and imposes on the claimant a relative
disadvantage; and (c) is based on a ground of discrimination enumerated in sec-
tion 15(1) or on an analogous ground.
Let us consider these requirements in more detail.
disadvantage was also relevant to McIntyre J.’s definition of equality at 164-65, the distinction here
is apparently one of degree, not kind.
27Andrews, supra, note I at 165.
2’lbid. at 174-75.
290nly La Forest J. expressed doubt on this issue.
3 0Infra, Part II-C.
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A. Force of Law
McIntyre J. said little to amplify this requirement, beyond noting that
“[w]hether other governmental or quasi-governmental regulations, rules, or
requirements may be termed laws under s.15(1) should be left for cases in which
the issue arises”. 3 Wilson J. added nothing, while La Forest J. seemed to envis-
age section 15(1) as extending to “legislative or governmental differentiation”.32
The Court’s approach in Dolphin Delive’y33 had suggested that section
15(1) does apply to non-statutory governmental action. In Andrews, although
the law society itself had non-governmental aspects, the Charter challenge was
directed at a statute. Under the Dolphin Delivery test, this was a sufficient gov-
ernmental element for the Charter to apply. Where the link to government
action is indirect,’ 4 courts will then have to determine more precisely how much
“governmental element” is necessary before the Charter can be invoked.
B. Equal Treatment, Differential Impact, and Relative Disadvantage
McIntyre J.’s treatment of discrimination as roughly synonymous with ine-
quality35 implies that the “equal treatment”, “differential impact”, and “relative
disadvantage” elements of discrimination must meet the requirements of the
inequality test discussed in part I, above. However, because section 15(1) dis-
crimination is qualified by specific enumerated grounds, McIntyre J. focused on
these grounds, or on analogous grounds, and not directly on the more general
“irrelevant personal characteristic” of the inequality test.
McIntyre J. stressed that unequal treatment or differential impact must
result in a relative disadvantage to the complainant, but he cast this requirement
broadly. For McIntyre J. and the others, relative disadvantage can be either pos-
itive, requiring harm, or negative, involving the denial of a benefit accorded to
others. Andrews had been deprived of the capacity to practice law immediately,
a benefit available to Canadian citizens with comparable qualifications.36
MAndrews, supra note 1 at 164, McIntyre J.
321bid. at 194, La Forest J.
33Retail, Wholesale & Department Store Union, Local 580 v. Dolphin Delivery Ltd, [1986] 2
S.C.R. 573, 33 D.L.R. (4th) 174 at 194-99, 25 C.R. 573.
(2d) 1, leave to appeal to S.C.C. granted April 21, 1988.
34As in McKinney v. University of Guelph (1987), 46 D.L.R. (4th) 193,24 O.A.C. 241, 63 O.R.
35Except for its greater emphasis on adverse effect. See Part II.
36Arguably, the distinction was of no consequence in this case because Andrews could plausibly
argue that he had been denied both immediate membership in the bar, a result, and also the imme-
diate possibility of earning a livelihood as a lawyer, an opportunity. Moreover, the Act here pur-
ported to differentiate on the ground of citizenship. La Forest J., at 196, said that”‘[h]ere there was
no allegation that the purpose of the legislation was based on discriminatory considerations; the
argument centred rather around the adverse effects of the legislation.” Nevertheless, the expressed
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McIntyre J. differentiated between opportunities and benefits or advantages, and
suggested that withholding any one of these could lead to a finding of
discrimination.
McIntyre J. and the others also felt that section 15(1) covers both inten-
tional and unintentional discrimination.37 He suggested that inequality could
result where government failed to draw any legal distinction between different
groups” and where it applied undifferentiated rules without taking into consid-
eration people’s special characteristics.
McIntyre J. seemed to measure relative disadvantage resulting from dis-
crimination in the same way he would determine inequality of treatment or dif-
ferential impact in the first place. He compared the disadvantage suffered by
Andrews with the effect of the law on Canadian citizens in similar circumstan-
ces. The rather nebulous contours of McIntyre J.’s approach to ascertaining sim-
ilar circumstances were noted above.3 9
C. Enumerated or Analogous Grounds
McIntyre J. said that “[t]he enumerated grounds in section 15(1) are not
exclusive and the limits, if any, on grounds for discrimination which may be
established in future cases await definition”.” However, it is virtually impossi-
ble to read his reasons as not setting down some suggested limits for non-
enumerated grounds. He found unsatisfactory both the “neutral” approach of
treating section 15(1) as applicable to all distinctions and the “unreasonable or
unfair distinctions” approach of the Court of Appeal. He said that “[t]he enu-
merated and analogous grounds approach most closely accords with the pur-
poses of s. 15 and the definition of discrimination outlined above and leaves
‘ Certainly McIntyre J.’s reasons would be
questions of justification to s.1.
inconsistent with any approach to section 15(1) more concerned with justifica-
tion than this one.
McIntyre J. supplied no precise test to determine which unenumerated
grounds are “analogous” but he stressed the importance of the nature of the dis-
criminatory action. He said that discrimination involves the type of personal
characteristics which are often arbitrarily attributed to individuals, without any
purpose here was based on a discriminatory criterion. Had Andrews been a Canadian citizen and
a registered Indian complaining that “facially neutral” requirements discriminated against him on
grounds of race, the Court would have faced the opportunity versus actual conditions issue more
squarely.
37See, for example, Andrews, supra note 1 at 174, McIntyre J., and at 193, La Forest J.
381Ibid. at 167-69, 171, McIntyre J.
39Supra, Part I.
4 0Andrews, supra, note 1 at 175.
1
1bid. at 182 and see infra, note 72.
4
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necessary relevance to the individuals’ merit.4′ A number of his other comments
seemed to relate more to the nature of the claimant’s group. He said that dis-
crimination sometimes involves stereotyping and historical disadvantage,43 and
noted that permanent resident non-citizens constitute a “discrete and insular
minority”. Generally, though, in describing analogous grounds, McIntyre J.
seemed to emphasise relative disadvantage resulting from irrelevant personal
characteristics, features central to his general concept of inequality.4″
Despite their expressed “substantial agreement”46 and “complete agree-
ment”’47 with McIntyre J.’s views on section 15(1), it is not clear that La Forest
and Wilson JJ. fully supported the view that the section is limited to enumerated
or analogous criteria of discrimination. La Forest J. seemed to envisage a pos-
sible residual role for judicial intervention under section 15(1) outside the enu-
merated or analogous categories, in cases of “legislative or governmental differ-
entiation between individuals or groups that is so grossly unfair to an individual
or group as to merit intervention pursuant to s.15″.” Wilson J. said simply: “I
agree with my colleague [McIntyre J.] 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
42Andreivs, ibid. at 174-75 and see discussion in part II of this text. Consider the basis for
McIntyre’s comment at 174-75 that.'[d]istinctions based on personal characteristics attributed to
an individual solely on the basis of association with a group will rarely escape the charge of dis-
crimination, while those based on an individual’s merits and capacities will rarely be so classed”.
Presumably this is so because the former kinds of distinctions are much less likely to be relevant
to the purpose of the government law or other action in question. Similarly, the enumerated cat-
egories in section 15(1) are criteria which are unlikely to relate directly to an individual’s merits
or capacities.
43McIntyre J. at 175 said that “[t]he enumerated grounds…reflect the most common and prob-
ably the most socially destructive and historically practised bases of discrimination and must…re-
ceive particular attention”. If these features distinguish the enumerated grounds, then presumably
they can be used to identify analogous grounds.
44McIntyre J. at 183, citing the U.S. Supreme Court in U.S. v. Carolene Products Co., 304 U.S.
144 at 152-53, note 4 (1938) [hereinafter Carolene Products]. Unlike Wilson J., McIntyre J. did
not amplify what he meant by this phrase. Either he intended its original meaning in Carolene
Products, a meaning difficult to reconcile with his “irrelevant personal characteristics” approach,
or he was attempting to incorporate the phrase into this approach. In the latter case, he would pre-
sumably argue that because non-citizens constitute a distinct group, they are more likely than oth-
ers to be attributed group characteristics rather than characteristics more relevant to their individual
merits or capacities, and because they are insular, in the sense of lacking general support outside
their group, they are especially vulnerable to being disadvantaged in this way.
45Discussed in Part I of this text. La Forest J. characterised McIntyre J.’s approach as asking if
the discrimination was based on irrelevant personal differences, either as illustrated in the enumer-
ated categories of section 15(1) or as traditionally found in human rights legislation.
46Andrews, supra note I at 193, La Forest J.
471bid. at 151, Wilson J.
48ibid. at 194, La Forest J. Apparently La Forest J. would base this emergency protection on a
free-standing application of the equality guarantees rather than on any addition to the enumerated
and analogous categories of discrimination.
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not do so.”4 9 The uncertainty surrounding the support for McIntyre J.’s enumer-
ated or analogous grounds test could have effects beyond section 15(1).5″ As we
will see, the test was central to McIntyre J.’s approach to the relationship
between sections 15(1) and 1.”
It is also less than clear that McIntyre J.’s colleagues wholly shared his
views on what to emphasise when looking for analogous criteria. Instead of
stressing the nature of the distinction drawn by the government, Wilson J.
focused on the condition of those subject to it. For her, the important question
was whether or not non-citizens were a “discrete and insular minority”,52 disad-
vantaged in the sense that they lacked political power.”3 Indeed, for Wilson J.,
disadvantage because of lack of political power, or for other reasons, may be
sufficient to constitute an analogous category for the purposes of section 15(1).’
Political powerlessness was also a criterion for La Forest J., but he added to it
the immutable or arbitrary nature of the distinction”5 and its relative irrelevance.
Wilson J.’s emphasis in ascertaining analogous categories is thus quite different
from that of McIntyre J. In comparison with his, it could substantially widen
section 15(1), and could put even more strain on the assumption that this section
is “justification-free”.56
49Ibid. at 153 Wilson J.
50In two subsequent decisions, though, the Court seems to have treated the requirement of either
enumerated or analogous grounds as essential: see Reference Re Constitutionality of Ss. 32 and 34
of the Workers’ Compensation Act, 1983 (Newfoundland), [1989] 1 S.C.R. 922 at 924 and Turpin,
supra, note 18 at 1332.
51Discussed in part IV of this text.
52The phrase is from Stone J.’s well-known fourth footnote in Carolene Products, supra, note
44. In the footnote, Stone J. tentatively suggested that courts might be justified in subjecting “prej-
udice against discrete and insular minorities” (such as religious, national, or racial minorities), on
the ground that prejudice against these minorities deprived them of the ordinary political process
as the normal means of repealing undesirable legislation. The footnote has since evolved into one
of several conflicting judicial tests in the United States for determining which classifications are
“suspect” and merit the court’s most rigorous level of control, “strict scrutiny”: see also J.A. Baer,
Equality Under the Constitution: Reclaiming the Fourteenth Amendment (Ithaca: Cornell Univ.
Press, 1983).
53Andrews, supra note I at 152-53, Wilson J. This, it is suggested, is consistent with the meaning
of Stone J.’s fourth footnote in Carolene Products, supra, note 44.
“41bid. at 152 Wilson J. See also Turpin, supra, note 10 at 1331-1333. In Turpin, Wilson J.,
speaking for the Court, held that a finding of discrimination will “in most but perhaps not all cases,
necessarily entail a search for disadvantage that exists apart from and independent of the particular
legal distinction being challenged”. In Turpin, the Court held that the group in question could not
complain of discrimination because it was not a disadvantaged group apart from the legal distinc-
tion being challenged.
55This criterion is similar to the “immutable characteristics” test of Brennan J. of the United
States Supreme Court in Frontiero v. Richardson, 411 U.S. 677 at 686 (1973), one of the main
American rivals to the “discrete and insular minorities” test for ascertaining suspect classifications
subject to full judicial scrutiny. See also supra, note 53.
56This will be further discussed in Part IV-A.
1989]
CHRONIQUE DE JURISPRUDENCE
245
IV. Justification
A. Section 15(1)
In Andrews, the trial judge used a rationality test to determine whether the
means (the distinction) justified the ends (the government’s purpose).57
McLachlin J.A. broadened this test to one of reasonableness and fairness. 8 If
the distinction was unreasonable or unfair, it was up to government to justify it
under section 1 of the Charter by reference to the strict test formulated in R. v.
Oakes.59
McIntyre J. tried to postpone questions of justification until the section’1
stage of the analysis,’ while at the same time preserving a “screening” role for
section 15(1).61 The key to this approach was his restriction of discrimination,
and through it, section 15(1) as a whole, to either the enumerated grounds or
analogous grounds of discrimination. He was not entirely successful in doing
this. His main criterion for determining whether or not unenumerated criteria
are analogous to the enumerated criteria appears to be whether or not they are
relevant to the government’s purpose. At best, his approach could reduce the
scope of the justificatory features considered at the section 15(1) stage of anal-
ysis.,2
Wilson and La Forest JJ. seemed to take a broader approach to the “anal-
ogous” grounds test, and emphasised lack of political power as a criterion.’ As
well, La Forest J. saw a limited role for section 15(1) beyond analogous
grounds, and Wilson J. may have too.’ Even if Wilson J.’s reasons are seen as
falling within the “analogous” confines, her broad approach to what is analo-
gous would seem to invite consideration of justificatory factors.’
One can sympathize with the attempt to keep justification out of section
15(1), as the Charter addresses justification separately, in section 1. Moreover,
in section 1, unlike section 15(1), the onus of proof is on government.6 To the
in section B.
57Supra, note 1, (1985), 22 D.L.R. (4th) 9 at 16 (B.C.S.C.).
58Supra, note 1, (1986), 27 D.L.R. (4th) 600 at 609-10 (B.C.C.A.).
19[1986] 1 S.C.R. 103, 26 D.L.R. (4th) 200, 65 N.R. 87. This test will be considered
60 1nfra, Part III-C.
61Andrews, supra note 1 at 182, McIntyre J.
62As seen, though, it was unclear in Andrews, supra, note 1 if McIntyre J.’s attempt to limit sec-
tion 15(1) discrimination to enumerated or analogous grounds had the full support of his col-
leagues: infra, Part I-C.
63Ibid.
61bid.
651bid.
66Andreivs, supra, note 1 at 183-84.
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extent that justification is addressed in section 15(1), section 1 is deprived of
meaning and the claimant faces an onus of proof which would otherwise rest
with government. 7
It is possible to keep justification out of section 15(1) by giving equality
and discrimination a neutral meaning, letting them refer essentially to an
absence or presence of distinctions.” But surely it cannot have been intended to
prohibit justified distinctions in section 15(1).69 This suggests that section 15(1)
must prohibit at least some kinds of unjustified distinctions.70
McIntyre J., and probably his colleagues, attempted to interpose an inter-
mediate stage of analysis involving distinctions which have adverse aspects but
are not necessarily unjustified. But the adverse aspects of a distinction are inev-
itably central to the question of whether it is justifiable.7 Thus adverse aspects
cannot be totally severed from justification. Once it is accepted that equality and
discrimination are more than neutral concepts, the question is not whether jus-
tification can be kept out of section 15(1) but how broadly or narrowly courts
should, at that point, consider justificatory factors.
67See Wilson J. in Turpin, supra, note 10 at 1332, agreeing with Lepofsky and Schwartz’s crit-
icism that the “similarly situated” test places an unfair burden on a Charter claimant to prove that
a law is unreasonable: (see Lepofsky and Schwartz, supra, note 11 at 125-28).
68For example, The Shorter Oxford English Dictionary defines “to discriminate” as “to make
or constitute a difference in or between; to differentiate”, giving it a neutral meaning, while it
defines “to discriminate against” as “to make an adverse distinction with regard to”, giving it a
pejorative meaning. Virtually all courts have rejected the option of giving equality or discrimina-
tion a neutral meaning. See the discussion in Re McKinney and Bd of Governors of the University
of Guelph, supra, note 10; and reasons of McIntyre J. in Andrews, supra, note I at 178-82.
69See Re McKinney, ibid. at 225-33; and reasons of McIntyre J. in Andrews, supra, note 1 at
181-82. McIntyre J. said that section 15(1) cannot have been intended to prohibit all distinctions
because such an interpretation would (i) trivialise the rights guaranteed by the Charter by requiring
courts to question many universally recognised distinctions, (ii) deprive the notion of discrimina-
tion of all content, and (iii) virtually deny any role for section 1. McIntyre J.’s reasoning is sound
as far as it goes but problems arise when one attempts to determine which distinctions, short of
all distinctions, are prohibited under section 15(1).
70Thus, unless section 15(1) prohibits favourable differences, the pejorative meanings referred
to in note 68, supra, are more appropriate to section 15(1) discrimination than those which are
merely neutral.
71This is true whether the adverse aspects result from the government distinction itself, as with
McIntyre J.’s “relative disadvantage resulting from irrelevant personal distinction” test or whether
they pertain to the complainant independently of the distinction, as with Wilson J.’s characterisa-
tion of a “discrete and insular minority”. The broader scope of the latter approach would make con-
siderations of general reasonableness and justifiability especially difficult to avoid.
19891
COMMENTS
B. Section 1
When it came to the test for justification under section 1 itself,72 the Court
gave two different, and conflicting, answers. Wilson J. for herself, Dickson C.J.
and l’Heureux-Dub6 J., applied the “Oakes” test. This test requires first that the
government objective relate to societal concerns which are pressing and sub-
stantial. It then requires that the means adopted by government meet three pro-
portionality requirements. First, they must be rationally connected to the gov-
ernment objective. Second, they must impair the relevant Charter right as little
as possible. Third, there must be proportionality between the effects of the lim-
iting measure and the government objective.73 In apparent contrast, McIntyre J.,
for himself and Lamer J., with La Forest J. expressing general agreement74 in
separate reasons, said that section 1 required that the government objective be
“desirable” and its means “reasonable”. 75
This is a potentially significant difference on one of the most basic of all
Charter provisions.76 If the lower standard supported by half the Court in
Andrews relates to all Charter guarantees, the entire course of future Charter lit-
igation could be affected. If it is specific to section 15(1), one might still ask
what other specific sections might involve a similar difference.77
Wilson J., representing three judges, said that the government’s breach of
section 15(1) was not justified under section 1 of the Charter. La Forest J.
agreed, making this the majority view. While Wilson J. found that the citizen-
ship provision failed the Oakes test, La Forest J. held that it failed the apparently
less stringent “desirable objective / reasonable means” requirements. McIntyre
72For the caselaw on section 1 prior to the Court’s decision in Andrews, see L.A. Weinrib, “The
Supreme Court of Canada and Section One of the Charter” (1988), 10 Sup. Ct L. Rev. 469 at
483-513.
73R. v. Oakes, [1986] 1 S.C.R. 103 at 135-142, 26 D.L.R. (4th) 200 at 224-29, 65 N.R. 87,
referred to in Andrews, supra, note 1, (1986), 27 D.L.R. (4th) 600 at 606-07 (B.C.C.A.). See also
Weinrib, ibid. at 483-513.
74La Forest J. at 197.
75Mclntyre J. at 184-85.
76See Weinrib, supra, note 72 at 509-12, for earlier signs of a difference in approach to section
1. See, however, Turpin, supra, note 8, where the Court gave some indirect support to the Oakes
test. Speaking for six judges in Turpin, Wilson J. agreed with Lepofsky and Schwartz, supra, note
11 who had criticised the similarly situated test because it required less state justification than was
permitted under section 1 of the Charter. For Lepofsky and Schwartz, the test for section 1 was
that of R. v. Oakes, supra, note 72.
770ne thing which seems clear, at least at present, is that neither group in the Court was con-
templating variable levels of judicial scrutiny, based on the nature of the discriminatory criterion,
as in American law. Ironically, though, two of the American criteria for determining “suspect clas-
sifications” subject to strict scrutiny (“discrete and insular minorities” and “immutable character-
istics”) are being adopted by our Court to determine analogous categories of discrimination in sec-
tion 15(1): See Baer, supra, note 52 infra, part Il-C.
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J., who had commanded general support on the equality and discrimination
issues, dissented. With Lamer J. agreeing, he found that the “desirable objective
/reasonable means” requirements had been met.
V. Judicial Activism
Underlying Andrews, like all Charter cases, was the question of judicial
activism. How aggressively should the courts apply the Charter? In assessing
the constitutionality of government action, what range of factors –
economic,
social, political, and others –
should they consider?
Andrews does contain some signs of caution. There was an effort to restrict
section 15(1) analysis to enumerated or analogous categories of discrimination,
and to avoid wide-ranging consideration of reasonableness or fairness at this
stage. “Like my colleague” [McIntyre J.], said La Forest J.,
I am not prepared to accept that all legislative classifications must be rationally
supportable before the courts. Much economic and social policy-making is simply
beyond the institutional competence of the courts: their role is to protect against
incursions on fundamental values, not to second-guess policy decisions.78
La Forest J. cautioned that courts should be “extremely wary about questioning
legislative and governmental choices in such areas”.79 Another sign of restraint
was the refusal to apply the full rigours of Oakes to section 1 analysis in equal-
ity cases.
Generally, though, Andrews is an activist decision. The Court has followed
its general principle that effects alone can produce a breach of Charter guaran-
tees, without further evidence of governmental intent. It has rejected any simple
definition of equality based on the applicability of similar legislative provisions
and has moved from equality of opportunity to equality of conditions. A major-
ity of the Court seems to feel only loosely bound by the enumerated / analogous
categories requirement. Other criteria, such as political powerlessness, permit
judicial intervention on a highly discretionary basis.80
This broad approach is hardly surprising. Equality is taking on new impor-
tance in a country which has done relatively little about it for a long time.
Women’s groups and minorities are demanding more than token action. In the
economic sphere, there is increasing concern about a system which permits
78Andrews, supra, note I at 194.
79Ibid. at 194.
8Even the irrelevant personal characteristics test depends on what an individual judge feels is
relevant and how broadly he or she chooses to construe the legislative purpose against which rel-
evance is measured (a point emphasised – indeed, perhaps overemphasised – in Lepofsky and
Schwartz, supra, note 11). Although determination of legislative purpose has subjective elements
which are vulnerable to manipulation, it must at least find some mooring in the language of the
statutory enactment. Concepts such as “political powerlessness” have no such roots.
1989]
CHRONIQUE DE JURISPRUDENCE
wealth for some but consigns the less fortunate to dead-end jobs, unemploy-
ment, limited welfare help,”‘ or food banks.82 The Canadian Bill of Rights was
criticised because it did too little to advance equality. The legislative history and
elaborate equality wording of section 15(1) suggest a fresh start and, to some
at least, a more expansive approach. 3
An expansive approach to equality implies an active judicial approach,
more consideration of policy, and more assessment and invalidation of govern-
ment action. Not only the Bill, but its interpretation by the Court, has been crit-
icised as narrow and ineffective.” Judicial activism toward section 15(1) would
seem consistent with the Court’s general approach to the Charter s and with its
emphasis on the effects of government action as well as its purposes.8 6
Arguably, it is supported by the elaborate equality wording and the legislative
history of section 15(1).87
On the other hand, equality is an empty-content concept, 8 heavily depend-
ent on those who interpret it. The Charter does not really change this.89 It indi-
cates where equality is protected (before the law, under the law, etc.) but does
not define the concept itself. Although it enshrines several different kinds of
rights and ideals,9″ including the rule of law and the concept of a free and dem-
ocratic society, it fails to relate them to equality. Since it is improbable that the
8 ‘Canada’s social welfare system was relatively late in coming, is arguably defective in many
respects, and has been subject to erosion in recent years. See, generally, A. Moscovitch and J.
Albert, eds, The “Benevolent” State: The Growth of Welfare in Canada (Toronto: Garamond Press,
1987).
82For illustrations of this economic inequality, see J.A. Porter, The Vertical Mosaic: An Analysis
of Social Class and Power in Canada (Toronto: University of Toronto Press, 1965); Report of the
Royal Commission on Taxation (Ottawa: Queen’s Printer, 1966-1967) (Chair: K. Le M. Carter); D.
Olsen, The State Elite (Toronto: McClelland and Stewart, 1980); and L. McQuaig, Behind Closed
Doors: How the Rich Won Control of Canada’s Tax System (Markham, Ont.: Viking, 1987).
83See the arguments in favour of a broad “equality of results” construction in A.F. Bayefsky,
“The Orientation of the Canadian Charter of Rights and Freedoms” in J.M. Weiler & R.M. Elliot,
eds, Litigating the Values of A Nation: The Canadian Charter of Rights and Freedoms (Toronto:
Carswell, 1986) at 105.
84Mclntyre J. at 166-68 agreed with aspects of this criticism.
85See, for example, R. v. Big M Drug Mart Ltd, [1985] 1 S.C.R. 295 at 344-45, 18 D.L.R. (4th)
321 at 359-60, 3 W.W.R. 481.
861bid., D.L.R. at 350, S.C.R. at 331-32.
87Supra, note 22.
88Lepofsky and Schwartz, supra, note 11 contend that this is a major flaw with the similarly sit-
uated test. I suggest that it is a major feature of equality itself. See, further, the authorities referred
to in note 34 of the Lepofsky and Schwartz article.
89See, however, Gold, supra, note 21, where it is argued that there are some general Charter
principles which can be applied to the interpretation of section 15(1).
90Gold, ibid., argues that the plurality of values protected in the Charter suggests a general
approach of judicial restraint, except to prevent restrictions on participation in, or criticism of, the
political process.
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Charter protects unjustified equality, Charter equality can be narrowed, very
slightly, to the concept of justified equality. Courts must therefore determine,
subject to the precise Charter wording, which kinds of equality are justified and
which are not.9’
Judicial activism in interpreting Charter equality is bound to mean heavy
judicial involvement in formulating subjective value judgments, determining
broad policy issues, and reassessing the merits of legislation. These are func-
tions ill-suited to non-elected bodies with limited resources and rigid institu-
tional constraints. 92
Conclusion
The results in Andrews should give some pause for thought to those who
urge judicial activism in section 15(1) Charter issues. The individual judgments
reveal a complex array of differing views on equality, discrimination, section
15(1), section 1, and the relationship between all of these. For every question
answered, dozens remain unanswered.
There is a striking difference of opinion on the section 1 test. McIntyre J.’s
version of the enumerated/analogous grounds test lacks clear majority support.
As a result, there is no real consensus on the precise relationship between sec-
tions 15(1) and 1. There are different points of emphasis in the tests for what
is analogous and differences of opinion as to whether the section 15(1) equality
guarantees provide protection independent of the discrimination branch of that
section.
As important as the contested questions are those which remain unclarified
or unanswered. McIntyre J. tells us what equality is not, but tells us relatively
little about what it is. Aspects of the old “similarly situated, similarly treated”
test are severely condemned, but we are not told what test should take its place.
It is unclear with whom and according to which criteria the complainant should
be compared. The differences and similarities between equality and discrimina-
tion are not clearly stated. The effects of discrimination, especially that of rel-
ative disadvantage, are stressed, but we are not told how to gauge effects or to
measure disadvantage.
Justification is disavowed in section 15(1), but with either the irrelevance
approach or the political powerlessness test, it cannot be avoided. Although
91Courts cannot simply side-step this lack of criteria with the full-throttle view that “more is nec-
essarily better”. Greater equality for one individual or group can impose corresponding burdens on
others. Greater equality restrictions on government can limit the scope of otherwise desirable gov-
ernment activities. They generate an aggregate imbalance between government and the private
sphere, while inequality claims outside the web of human rights legislation flourish unchecked.
92With the advent of the Charter, these functions are all, to some extent, carried out by the judi-
ciary. However, the more this occurs, the greater the liabilities of these functions become.
1989]
COMMENTS
McIntyre J.’s two colleagues express support for his views on section 15(1) and
on the relationship between this section and section 1, what are we to make of
their own additional comments, which appear to take a broader approach to
determining analogous grounds, or may even, as with La Forest J.’s reasonable-
ness / unfairness approach, by-pass it altogether?
This lack of consensus and clarity is not surprising. When the Charter’s
framers entrusted courts with the interpretation of equality, they left them one
of the vaguest concepts in our legal and political system. They compounded the
challenge by drafting a complex equality guarantee which includes a non-
exhaustive list of examples of discrimination, without outer parameters.
Although Charter equality almost inevitably involves justification, justificatory
factors are addressed in a separate provision with a different onus of proof.
The Charter framers encouraged expectations but gave the judiciary an
unenviable choice. The more courts seek to escape the formalism and restraint
of the past, the more they thrust themselves into a world of policy choices, polit-
ical and economic considerations and subjective value judgments.
We need to ask who should have the lead role in defining and applying
equality. Is it realistic to expect significant gains if we delegate most of this job
to non-elected people with limited access to information, limited resources, and
an adversarial procedural format? If we divert our energies and expectations to
courts, do we undermine the prospects for wide-ranging legislative change? Can
we litigate our way to a more equal society?93 How many of the root causes of
disadvantage –
poverty, prejudice, illiteracy, ill health, unemployment, and
similar ills – will be cured on our courtroom floors?94 In the enthusiasm of the
post-Charter decade, do we risk underestimating the potential of our traditional
democratic processes?95
Perhaps the real issue is not the newest interpretation of section 15(1), or
whether the individual judges were “right” or'”wrong” in Andrews; arguably, in
light of what was asked of them, McIntyre J. and his colleagues did a credible
job. Perhaps the important question is whether we are asking too much in
expecting the judiciary to play any major role in resolving the question of equal-
tury of constitutional litigation involving “equal protection of the laws” arguments.
93Consider whether our American neighbours have created a more equal society after over a cen-
94Consider the result in Andrews, supra, note 1 itself: a graduate of an elite British university
succeeds in gaining earlier entry into one of the most prestigious and highest-paying Canadian
professions.
95Even in the Charter era, Canadians might do well to consider some of the suggestions made
twenty years ago in P.H. Russell,”‘A Democratic Approach to Civil Liberties” (1969) 19 U.T.L.J.
109.
REVUE DE DROIT DE McGILL
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ity.96 Perhaps the issue is not whether section 15(l)’s “new clothes” provide a
better fit, but whether Canadians are taking equality to the right tailor?
961f this is so, the Court’s challenge is to develop an approach to equality which minimises the
risks of activism. The outlines of such an approach are beyond the bounds of this comment and
I will offer only two observations. First, automatic judicial validation of virtually all Charter pro-
visions would deprive the Charter of even minimal meaning and is therefore not a viable option.
Beyond this threshold, the Charter permits an almost unlimited range of judicial approaches, from
restrained to highly activist. Second, I am not sure that one can avoid the drawbacks of judicial
equality activism by limiting it to certain select causes, such as helping to ensure participation in
the political process (see, for example, J.H. Ely, Democracy and Distrust, (Cambridge: Harv. Univ.
Press, 1980); Gold, supra, note 21; P. Monahan, Politics and the Constitution, (Agincourt:
Carswell, 1987) and compare these with the “discrete and insular minorities” approach in Andrews,
supra, note 1). Any such limits would be subjective, and would be unlikely to remove the tradi-
tional institutional weaknesses of any courts involved in advancing the chosen cause.
