What is the test for discrimination under s. 15 of the Charter?

In Miron v. Trudel, supra, McLachlin J. (as she then was) indicated that the analysis under s. 15(1) involved two steps. First the claimant must show a denial of “equal treatment” or “equal benefit” of the law, as compared with some other person. Second the claimant must show that the denial constitutes discrimination. At this stage, in order to show discrimination the claimant must show that the denial rests on one of the enumerated grounds in s. 15(1) or on an analogous ground and that the unequal treatment is based on the stereotypical application of presumed group or personal characteristics. If the claimant meets the onus under this analysis, violation of s. 15(1) is made out and the onus shifts to the party seeking to uphold the law, to justify the discrimination as demonstrably justified in a free and democratic society under s. 1 of the Charter. McLachlin J. found that marital status was an analogous ground under s. 15(1) and that the provision discriminated by excluding common law spouses. She said the following at para 156: ¶156 These considerations, taken together, suggest that denial of equality on the basis of marital status constitutes discrimination within the ambit of s. 15(1) of the Charter. If the evil to which s. 15(1) is addressed is the violation of human dignity and freedom by imposing limitations or disadvantages on the basis of the stereotypical application of presumed group characteristics, rather than on the basis of individual capacity, worth or circumstance, then marital status should be considered an analogous ground. The essential elements necessary to engage the overarching purpose of s. 15(1) – violation of dignity and freedom, an historical group disadvantage, and the danger of stereotypical group-based decision-making – are present and discrimination is made out.