Rights without Meaning - Failing to Give Effect to the Purpose of Section 15(1) of the Charter

The recent Supreme Court of Canada decision in Egan v. Canada has resulted in significant controversy and unanswered questions surrounding the status of homosexual couples. Egan has also raised doubts as to the status of the Canadian Charter of Rights and Freedoms section 15(1) analysis first announced in Andrews v. Law Society of British Columbia and later expanded in R. v. Turpin. Egan was released concurrently with Miron v. Trudel and Thibaudeau v. Canada. All three cases in the trilogy dealt with alleged breaches of section 15(1). Because of the peculiar combination of Supreme Court Justices who supported the new approach, lower courts in subsequent discrimination cases have been inconsistently applying section 15(1). While most courts have followed the established Andrews test (endorsed McLachlin J. and three others in the trilogy), other lower courts have combined elements of the Andrews test with the new analysis. Others still have adopted the new analysis outright. In the resulting uncertainty, lower courts have reflected the lack of consensus on the proper approach to a section 15(1) analysis, and unfortunately may have assessed discrimination on the basis of reaching a desired outcome. These results have necessitated clear direction from the Supreme Court on section 15(1). This comment examines the historical development of analysis at section 15(1) of the Charter