Modern equality rights in Canada were built on his shoulders.
Yet Mark Andrews was white, and an Oxford-educated lawyer from Britain.
When the British Columbia Law Society refused to admit him to the bar because he was not a Canadian citizen, he went to court, using the equality clause of the new Charter of Rights and Freedoms in 1985 to argue he was being unlawfully discriminated against.
Andrews v. Law Society of British Columbia (1989) would be the first equality-rights case decided by the Supreme Court of Canada under the Charter, and establish the legal foundation for major social changes, such as same-sex marriage.
And Mr. Andrews himself, having become a lawyer and ultimately a Canadian citizen, would rise to the top ranks of his profession and appear before the Supreme Court himself – the last time in December, just three months before his death from glioblastoma, a form of brain cancer, at the age of 60.
“He loved to be on his feet in court,” his wife, Shelagh Scarth, says. “He loved arguing difficult points of law. He loved the challenge of it. He liked to try to anticipate the issues the judges would have and he liked to play them out before he went in.”
And the legal system seemed to love him in return – for his quiet charm, dependability, legal knowledge and modest nature.
“He was seen as the supreme counsel of his day," Lynn Smith, a retired B.C. Supreme Court judge, says.
“I’ve heard other judges say, ‘If only there were more Mark Andrews in the world.’” She called him “delightful to listen to.”
Mark Andrews was born on Nov. 25, 1959, at a Royal Air Force base in Germany, into the first generation of his family to emerge from working-class struggle in the Midlands of England. The family included coal miners – a great-grandfather lost a lung in a mine collapse – and factory and construction workers. Mr. Andrews’s father, Robert, broke the mould and went to university, but when his father had a heart attack and became disabled, he supported his parents by working summers in the cramped spaces of a coal mine, although he was 6 foot 3.
At Oxford, the 6-foot-6 Mr. Andrews showed the determination and stamina that would be his hallmark. In both 1980 and 1981, he was a member of the men’s eight rowing team that won the gruelling Oxford-Cambridge boat race, more than six kilometres along the Thames in London. The 1980 victory was particularly notable because the team’s bowman collapsed partway.
It was at Oxford in 1979 that he met Ms. Scarth, who was from Winnipeg – a Rhodes Scholar, also studying law and rowing for her school. In 1982, she took him home to meet her parents, and the couple embarked on a driving trip west, falling in love with Vancouver’s natural beauty.
They returned for good in 1983, found articling positions and completed the bar admissions course. But only she was called to the bar. “He was as qualified as I was to be a lawyer and yet he couldn’t get called,” says Ms. Scarth, today a B.C. judicial officer known as a Master.
The case he brought was a challenge to the traditional thinking about equality that had dominated the West since the time of Aristotle. The theory was known as “formal equality,” and involved the “similarly situated test”: People who are alike should be treated alike, while those who are different could be treated differently.
Two cases – unthinkable by today’s standards – show how the test was applied. In 1962, the B.C. Court of Appeal upheld a section of the Indian Act (in a challenge under the Canadian Bill of Rights) that made it an offence for Indigenous people to have intoxicating substances in their possession, off-reserve. The court said the man was treated the same as all other people to whom the law applied. In 1978, a woman challenged the federal government’s denial of unemployment benefits because she was pregnant. The Supreme Court said there was no sex discrimination because she was treated like all members of her class – pregnant persons.
“Equality was a pretty new idea,” Ms. Smith says. “Sometimes it’s called a 20th-century right because the first articulations of it came after World War Two. The courts had not had a lot of practise in construing those rights.”
The law society argued in the Andrews case that lawyers should be citizens because they were involved in the democratic process, and because citizenship ensured familiarity with a country’s customs and institutions.
To Geoffrey Cowper, a Vancouver lawyer who represented Mr. Andrews, those arguments exemplified a “genteel” form of discrimination. “We take pride in being Canadians, and the dark side is we can quite readily accept discrimination against people seeking to become Canadians, or new Canadians.”
Mr. Andrews, he said, showed courage in fighting for what he believed in.
“His courage was as a new person who wanted to belong, to be accepted, to say, ‘This is unfair, I don’t think I should have to wait, I think I can be as good a lawyer as the next person.’”
The law society won in a lower court, but lost at the B.C. Court of Appeal, where Beverley McLachlin, later the Supreme Court’s chief justice, wrote that there was no convincing justification for the citizenship requirement. But she used the “similarly situated test” in her analysis, albeit in a different way than in previous cases.
Breaking with the past, the Supreme Court described the similarly situated test as “severely deficient.” “If it were to be applied literally, it could be used to justify the Nuremberg laws of Adolf Hitler,” Justice William McIntyre wrote. “Similar treatment was contemplated for all Jews.”
Instead, the court endorsed “substantive equality.” The key, it said, was not whether people were being treated identically or differently; either might cause inequality, depending on the circumstances. What mattered was whether the treatment worsened the disadvantage experienced by a historically oppressed group. And non-citizens were just such a group.
“It was a monumental decision,” University of Ottawa law professor Carissima Mathen says.
There was more. For the first time, the Supreme Court had ruled that the list of groups expressly protected in the Charter’s equality clause, Section 15, was open-ended. While the plain wording of the clause pointed in that direction, the ruling established that a history of oppression could lead to claims being deemed “analogous” to those based on race, sex and others listed in Section 15.
That precedent led to sexual orientation, which the Charter’s founders had left out of Section 15, being “read in” in a 1995 Supreme Court case. Legalization of same-sex marriage followed a few years later, well ahead of most other countries.
The Andrews case also led to victories for women – who at last won unemployment benefits during pregnancies – and for people with disabilities, who did not have to prove discrimination was direct or intentional, but simply an effect of treating them like everyone else. As a result, all government services have to be available in sign-language free of charge.
In 1990, Mr. Andrews found himself in a strange position for a lawyer – citing his own case on behalf of a man excluded from a job as museum curator because he was not a citizen. He won, and the citizenship requirement was struck down.
He would spend his entire career at Russell & DuMoulin, now Fasken, which had extended his articles and paid him at the higher level of an associate during his court battle. He went on to specialize in commercial litigation, taking on high-profile cases. In 2011, he successfully defended Lions Gate Entertainment Corp. from a hostile takeover by the U.S. businessman Carl Icahn. In 2018, he defended two officials of the B.C. legislature fired over allegations of misconduct.
Mr. Andrews never shied from representing unpopular clients, Mr. Cowper said.
“That kind of person is what we need to attract into the bar. A lot of the time it’s unpopular causes that shape our history.”
In a landmark case argued in the Supreme Court early in 2019, he represented Canadian mining company Nevsun Resources Ltd. against Eritrean workers alleging they had been enslaved and tortured. He said Canadian courts should not hear such lawsuits from other countries. If that seems a long way from the Andrews case – this time an attempt to limit the expansion of human-rights law – Mr. Cowper said that lawyers are duty bound to argue their client’s side. “The best results come when two parties are well represented.” In late February, the Supreme Court ruled 5-4 that Nevsun could be sued in Canada.
Mr. Andrews was an avid outdoorsman and birder. “His idea of a perfect day included a long walk along the rivers and trails of southern B.C., always with binoculars and with a fishing rod in season,” Ms. Scarth said. He taught their four children to recognize returning warblers by their song.
In his final appearance at the Supreme Court, on Dec. 6, a webcast records him arguing for one of his favourite points: the obligation of good faith in contract law. He still looked strong and athletic, and still spoke with a kind of winsome charm and facility with the law. Chief Justice Richard Wagner knew of his condition, a court spokeswoman said. He granted him extra time, although not for that reason, Renée Thériault said.
“The members of the court, starting with the Chief Justice himself, were very interested in hearing Mr. Andrew’s submissions. They all had an appreciation for his excellent advocacy skills and hence his ability to assist the Court in reaching a decision in the matter.”
Days before his death, the B.C. law society, which fought him tooth and nail for years, dedicated an award in his honour, the Mark Andrews Excellence in Litigation Award.
He died on March 20, leaving his wife, four children and a grandson, as well as his mother, Nancy, and sister, Jane, in England.