A Discrete and Insular Right to Equality: Comment on Andrews v. The Law Society of British Columbia

In Andrews v. The Law Society of B.C., the Supreme Court of Canada makes its first significant statement concerning the right to equality in subsection 15(1) of the Canadian Charter of Rights. The Court holds, by a margin of 4 to 2, that the provision in the B.C. Barristers and Solicitors Act, which made citizenship a requirement for membership in the Law Society, violates subsection 15(1) of the Charter and cannot be justified under the terms of section 1. In reaching this conclusion, the Court adopts a broad approach to subsection 15(1), which focusses on the effect or impact of particular laws on disadvantaged groups within the community. In taking this view of the right to equality, the Court has set itself a difficult task - because while the focus of review is on a state act that disadvantages a particular group, the foundation of the wrong is the disadvantaged or unequal position of the group in the community. The court’s pursuit of systemic equality, though, is constrained by the adjudicative process and perhaps also by the court’s reluctance to recognize the full implications of the conception of equality underlying the prohibition of effects discrimination. The Court is caught between two views of equality and state obligation: one view emphasizes the correction of harmful state action through the adjudicative process; the other emphasizes distributive justice and places an obligation on the state to address or take account of socio-economic inequality in the community. The focus in future cases will be on the standards used for determining whether a group is "disadvantaged", whether a law's impact is "disparate" and whether the "limit" on the right under section 1 is "reasonable". The standards adopted by the Court will determine the depth of judicial intervention into the socio-economic organization of society. Future cases may give greater substance and clarity to these tests. However, inasmuch as they represent a compromise between two visions of equality and state obligation, these standards are likely to remain unstable. The scope of the right to equality will remain open, flexible and controversial, with no clear lines or easy tests for fixing the limits of judicial intervention into the social and economic order.