Black v. Law Society of Alberta - [1989] 1 SCR 591 - 1989-04-20

Christie Eze

— 7 min read
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1. Case Overview

Parties: Appellant: Lawrence Black (“Black”)
Respondent: Law Society of Alberta (“the Society”)

Context: Black, a citizen of Guyana who had completed his legal education in Canada and been called to the bar in another province, applied for admission to the Alberta bar. The Society’s rules required applicants to be Canadian citizens or “landed immigrants” (i.e. permanent residents). Black contended that the citizenship/permanent-resident requirement infringed his right under section 6(2) of the Canadian Charter of Rights and Freedoms – the mobility right to “pursue the gaining of a livelihood” in any province. He sought a declaration that the requirement was unconstitutional and an order compelling his admission.

Nature of the Dispute: A constitutional challenge to a provincial law society's admission requirement on the basis that it violated mobility rights under the Charter. At issue was whether section 6(2) protects those who are not yet Canadian citizens or permanent residents, and whether “the right to pursue the gaining of a livelihood” encompasses professional admission criteria imposed by a regulatory body.

2. Procedural History

• Queen’s Bench of Alberta (Trial Division): Black applied for judicial review of the Society’s decision. The chambers judge rejected his Charter challenge and upheld the citizenship/permanent-resident rule.

• Court of Appeal of Alberta: Black appealed. A majority of the Court of Appeal dismissed his appeal, concluding the citizenship/permanent-resident rule did not offend section 6(2).

• Supreme Court of Canada: Leave granted. The SCC heard the appeal and rendered judgment on April 20, 1989, dismissing Black’s Charter challenge.

3. Material Facts

• Black’s Background: A citizen of Guyana, Black completed his LL.B in Guyana and then obtained a Master of Laws (LL.M) in Canada. He was called to the bar in Nova Scotia, where he practiced law for a period. He then relocated to Alberta and applied for admission to the Alberta bar.

• Law Society Rule: At the relevant time, the Law Society of Alberta’s admission By-law required that every applicant for admission be “a citizen of Canada or a person lawfully admitted to Canada for permanent residence.” This rule was intended to ensure that only those with stable immigration status could practice law in Alberta.

• Black’s Immigration Status: At the time he applied in Alberta, Black was neither a Canadian citizen nor a permanent resident. He was in Canada under a temporary entry permit (a work permit tied to his previous studies and bar membership in Nova Scotia).

• Charter Challenge: Black argued that the citizenship/permanent-resident requirement contravened section 6(2) of the Charter, which guarantees that “every citizen of Canada and every person lawfully admitted to Canada for permanent residence” has the right to “pursue the gaining of a livelihood in any province.” Although section 6(2) expressly protects only citizens and permanent residents, Black argued that it must be read to protect all persons legally in Canada, including those with temporary permits, and that the Society’s rule unjustifiably restricted his right to practice law in Alberta.

4. Issues Before the Court

The Supreme Court framed the appeal around two central issues:

  1. Does section 6(2) of the Charter extend mobility rights to persons who are not Canadian citizens or permanent residents, but who are lawfully in Canada on temporary permits?
  2. If section 6(2) applies, does the Law Society of Alberta’s citizenship/permanent-resident requirement infringe the right to “pursue the gaining of a livelihood,” and if so, can that infringement be justified under section 1 of the Charter?

Charter Section 6:

– Section 6(1): “Every citizen of Canada has the right to enter, remain in and leave Canada.”
– Section 6(2): “Every citizen of Canada and every person lawfully admitted to Canada for permanent residence has the right… to pursue the gaining of a livelihood in any province.”

Key Precedent: Law Society of Upper Canada v. Skapinker, [1984] 1 S.C.R. 357

In Skapinker, the Court held that professional licensing requirements which effectively excluded a non-citizen could violate section 6(2) where they restricted the mobility of a person who qualifies under the citizenship/permanent-resident categories. The case also established that section 6 rights attach only to citizens and permanent residents as defined in the Charter text, and clarified the test for “pursuing the gaining of a livelihood” – a broad right encompassing the pursuit of one’s profession, subject to reasonable regulatory standards.

6. The Court’s Analysis and Reasoning

Step 1: Interpretation of Section 6(2) Eligibility
The Court began by noting the express wording of section 6(2): rights are granted to “every citizen of Canada and every person lawfully admitted for permanent residence.” Black did not fit into either category. He was lawfully in Canada but as a temporary entrant. The Court emphasized that Charter rights must be read according to their plain language; judges may not extend the protection to groups excluded from the textual definition.

Step 2: Scope of “Pursue the Gaining of a Livelihood”
Even if Black had been covered, the Court considered whether professional admission criteria are captured by the right to pursue a livelihood. Drawing on Skapinker, the SCC confirmed that “the gaining of a livelihood” includes the right to practice one’s chosen profession – in this case, the legal profession – free from arbitrary provincial restrictions. However, reasonable regulatory requirements (such as competence or ethical standards) are permissible. The citizenship/permanent-resident requirement went beyond competence; it imposed an immigration-status hurdle.

Step 3: Does the By-law Infringe Section 6(2)?
Because Black was not a citizen or permanent resident, section 6(2) could not be invoked by him. There was no infringement to analyze: the Charter guarantee did not apply to temporary residents. The Court declined to import an unenumerated class into section 6(2). As the rule did not affect the mobility rights of those whom the Charter actually protects (citizens and permanent residents), there was no conflict.

Step 4: Section 1 Justification (If Required)
The Court did not proceed to a full section 1 analysis because it found no infringement. It noted, however, that had there been an infringement, the Society could have justified it in principle by demonstrating a pressing and substantial objective (regulation of the profession and ensuring stability of practitioners) and proportional means. But this was obiter.

7. Decision and Outcome

The appeal was dismissed. The Supreme Court of Canada held that:

  • Black was not entitled to assert section 6(2) rights, as he was neither a Canadian citizen nor a permanent resident.
  • The Law Society of Alberta’s requirement did not breach the Charter. Consequently, the rule remained valid and enforceable.
  • No order was made to admit Black to the Alberta bar; the Society could lawfully limit admission to citizens or permanent residents.

8. Relationship to Existing Precedent (CRITICAL)

Black v. Law Society of Alberta builds directly on Skapinker by reaffirming that section 6(2) protections are limited to citizens and permanent residents as explicitly defined. Skapinker had left open whether other regulatory restrictions on professional practice – beyond citizenship requirements – could infringe mobility rights. Black clarifies that:

  • Section 6’s textual limitations are binding. Courts cannot expand the demographic reach of mobility rights to include temporary entrants.
  • The right to pursue a livelihood extends to professional accreditation processes, but only in favor of those entitled to mobility protection.

This decision aligns with earlier judgments that stress textual fidelity in Charter interpretation (e.g., R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295 on section 2 freedoms). It marks no departure from Charter jurisprudence but rather confirms the scope of section 6 as originally construed.

9. What Is New or Different About This Decision (CRITICAL)

While the textual limitation was not new, Black’s case is the first SCC pronouncement to address directly the question of temporary residents seeking professional admission. Its key innovations are:

  • Clarification of Eligibility: Explicit confirmation that non-permanent residents cannot bootstrap themselves into section 6(2) mobility rights. Various professional bodies had been uncertain whether s. 6 could be invoked by foreign students, temporary workers, or refugee claimants.
  • Professional Licensing Under Section 6: Though Skapinker touched on licensing, Black extends the analysis to admission criteria based on extraneous considerations (immigration status rather than competence or ethics). The decision thus narrows the scope of permissible criteria to those relevant to professional integrity.

10. Practical and Precedential Significance

For Regulatory Bodies:

  • Confirms that immigration status requirements for professional admission are constitutionally valid so long as they exclude only those not protected by s. 6.
  • Encourages law societies and other professional regulators to review admission rules to ensure they do not unfairly burden those entitled to Charter protection.

For Temporary Residents:

  • This decision crystallizes that temporary entrants do not enjoy section 6 mobility. Those seeking to practice regulated professions must secure permanent residency or citizenship before invoking Charter mobility rights.

For Courts and Litigants:

  • Affirms strict adherence to the Charter’s text when determining rights-holders under section 6.
  • Frames the “pursuing the gaining of a livelihood” test to include professional admission, but only for those within the section 6(2) categories.

11. Key Takeaways

  1. Section 6(2) protects only “citizens” and “persons lawfully admitted for permanent residence.” Temporary permit holders cannot claim mobility rights under the Charter.
  2. The right to “pursue the gaining of a livelihood” encompasses professional accreditation processes, but regulators may impose objective competence or ethical standards.
  3. Courts must interpret Charter rights according to their express text; they may not create additional classes of rights-holders.
  4. Immigration status requirements for professional admission are constitutionally permissible where they align with section 6 definitions.

12. Why This Case Matters

Black v. Law Society of Alberta is significant for both constitutional and immigration-law landscapes:

  • It reinforces the principle that Charter rights derive from explicit statutory language, not judicial policy preferences. The case underscores the limits of mobility rights and puts the onus on prospective practitioners to secure stable immigration status before seeking professional licensure.
  • In a broader policy sense, the decision draws a clear line between permanent residents (who integrate into Canadian society with full social and economic rights) and transient workers or students (who remain subject to provincial admission criteria).
  • Future challenges by temporary entrants to provincial regulations will be measured against this benchmark: they must establish Charter rights independently, for example under equality rights (section 15), rather than mobility rights (section 6).

13. Bottom Line

Black v. Law Society of Alberta reaffirms that Canada’s mobility rights under section 6 of the Charter protect only citizens and permanent residents. Regulatory bodies may lawfully require permanent-resident or citizenship status as a condition of professional admission without running afoul of mobility guarantees. The case clarifies the boundary between legitimate regulation of licensed professions and unconstitutional barriers to those protected by the Charter. For counsel and regulators alike, the decision underscores the imperative to align professional-admission rules with the Charter’s precise wording.

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