Can a discrimination claim under s. 15(1) be based on an "analogous ground"?

This definition of discrimination was linked to the specific grounds enumerated in s. 15, but these were said not to be exclusive. A s. 15(1) claim can also be based on an “analogous” ground. While he did not attempt to define “analogous ground”, McIntyre J. described the concept as deriving its meaning from the specific grounds listed in s. 15 (at p. 175 S.C.R., p. 228 C.R.R.): The enumerated grounds in s. 15(1) are not exclusive and the limits, if any, on grounds for discrimination which may be established in future cases await definition. The enumerated grounds do, however, reflect the most common and probably the most socially destructive and historically practised bases of discrimination and must, in the words of s. 15(1), receive particular attention. Both the enumerated grounds themselves and other possible grounds of discrimination recognized under s. 15(1) must be interpreted in a broad and generous manner, reflecting the fact that they are constitutional provisions not easily repealed or amended but intended to provide a “continuing framework for the legitimate exercise of governmental power” and, at the same time, for “the unremitting protection” of equality rights: see Hunter v. Southam lnc. (1984), 1984 CanLII 33 (SCC), 9 C.R.R. 355, [1984] 2 S.C.R. 145… at p. 364 C.R.R., at p.155 S.C.R.

Applying these considerations to the issue presented by the applicant in that case, the court concluded that citizenship constituted a personal characteristic analogous to those enumerated in s. 15. McIntyre J. found that by barring an entire class of persons from membership in the bar (at p. 183 S.C.R., p. 234 C.R.R.) “without consideration of educational and professional qualifications or the other attributes or merits of individuals in the group” constituted discrimination within the meaning of s. 15(1), adding that non-citizens were an example of a “discrete and insular minority” protected by the equality guarantee. In her concurring opinion, Wilson J. also adopted the phrase “discrete and insular minority” (which is taken from United States v. Carotene Products Co., 304 U.S. 144 (1938), at pp. 152-53, n. 4) to describe the situation of non-citizens, adding that they (at p. 152 S.C.R., p. 201 C.R.R.) “are a group lacking in political power and as such are vulnerable to having their interests overlooked and the rights to equal concern and respect violated”. Wilson J. observed further that the determination of whether a group falls into a category analogous to those listed in s. 15, and thereby attracts Charter scrutiny (at p. 152 S.C.R., p. 202 C.R.R.) must “not be made only in the context of the law which is subject to challenge but rather in the context of the place of the group in the entire social, political and legal fabric of our society”.