Actually, it’s a bit more complicated than that. There were three steps to the Court’s analysis:
Is sexual orientation a prohibited ground of discrimination?
If so, did the particular legislation before the Court discriminate on the basis of sexual orientation?
If so, could the discrimination be justified under s. 1 of the Charter?
On the first, most basic point, the Court unanimously held that sexual orientation is a prohibited ground of discrimination under s. 15 of the Charter. See the decisions of La Forest J. at para. 5; L’Heureux- Dubé J. at para. 89; Sopinka J. at para. 103; Cory and Iacobucci JJ. at paras. 171-178; McLachlin J. at para. 232.
Things got more complicated on the second point, whether the particular legislation was discriminatory. A majority of the Court, composed of L’Heureux-Dubé, Sopinka, Cory, Iacobucci and McLachlin JJ. held that the legisation in issue was discriminatory. A minoirty of four judges (Lamer C.J. and La Forest, Gonthier and Major JJ.) held that it was not discriminatory.
The Court fractured further on the third question, that of justification under section 1. Four of the judges in the majority on discrimination issue (L’Heureux-Dubé, Cory, Iacobucci and McLachlin JJ.) held that the discrimination could not be justified under s. 1.
However, Sopinka J. disagreed with those four, and held that the particular infringement before the Court could be justified under s. 1. (See paras. 103-112.) The other four judges, who had been in dissent on the issue of whether the legislation was discriminatory, adopted Sopinka J.'s position on s. 1. (See reasons of La Forest J., at para. 29).
So, to summarise, the Court split as follows:
Is sexual orientation a prohibited ground of discrimination? Yes: 9-0
Is the particular legislation under consideration discriminatory, on the basis of sexual orientation? Yes: 5-4
Can the discrimination nonetheless be justified under s. 1, upholding the discriminatory legislation? Yes: 5-4
In my opinion, although Egan was a set-back on the particular issue before the Court, its significance lies with the unanaimous answer given to Q. 1: Sexual orientation is a prohibited ground of discrimination in Canadian constitutional law. In all subsequent cases on sexual orientation, such as M. v. H. that has been the Court’s starting point.