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Charter - s.12 Discrimination - Purpose. Quebec (Attorney General) v. Kanyinda
In Quebec (Attorney General) v. Kanyinda (SCC, 2026) the Supreme Court of Canada partially allowed an appeal, this brought against a Charter s.15 Quebec CA order "that refugee claimants with a work permit and residing in Quebec be “read in” to s. 3 subpara. 3 of the RCR" ['Educational Childcare Act - Reduced Contribution Regulation'], meaning that the appellant was eligible for childcare subsidy despite her ungranted refugee status.
Here the court considers the history and purpose of Charter s.15 ['discrimination']:B. Legal Framework for Equality Rights Under the Charter
(1) Purpose of Section 15(1) of the Charter
[31] Section 15(1) of the Charter provides:Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability. [32] The equality right set out in s. 15(1) has deep roots in Canada’s constitutional tradition, including in the pre-Charter era (see Andrews v. Law Society of British Columbia, 1989 CanLII 2 (SCC), [1989] 1 S.C.R. 143, at pp. 170 and 172). This Court has long recognized the commitment to equality as a value essential to a free and democratic society (see, e.g., R. v. Oakes, 1986 CanLII 46 (SCC), [1986] 1 S.C.R. 103, at p. 136). As Dickson J. explained in R. v. Big M Drug Mart Ltd., 1985 CanLII 69 (SCC), [1985] 1 S.C.R. 295: “A free society is one which aims at equality with respect to the enjoyment of fundamental freedoms . . . . Freedom must surely be founded in respect for the inherent dignity and the inviolable rights of the human person” (p. 336; see also Andrews, at p. 171). The principled development and proper application of s. 15(1) is thus of critical importance to our fundamental human rights and to our identity as a country.
[33] From its earliest Charter jurisprudence, this Court has recognized that interpreting a Charter provision requires something other than the rules of statutory construction. “The task of expounding a constitution”, Dickson J. wrote in 1984, “is crucially different from that of construing a statute” (Hunter v. Southam Inc., 1984 CanLII 33 (SCC), [1984] 2 S.C.R. 145, at p. 155). While statutes may be repealed, a constitution is deeply entrenched. It cannot be easily changed and it is drafted and interpreted with “an eye to the future” (ibid.). The constitution must be responsive to new social, political, and historical realities as they emerge. A feature of Canada’s constitutional order long before the advent of the Charter, this purposive and generous approach was famously recognized by Lord Sankey in Edwards v. Attorney-General for Canada, 1929 CanLII 438 (UK JCPC), [1930] A.C. 124 (P.C.), at p. 136, where the Constitution was described as “a living tree capable of growth and expansion within its natural limits”.
[34] A Charter interpretation will be generous and attentive to the broader purpose of the right in question (Big M Drug Mart Ltd., at p. 344). Accordingly, s. 15(1) is part of the Charter’s broader vision of a free and democratic society, in which all human beings are “equally deserving of concern, respect and consideration” (Andrews, at p. 171).
[35] The approach to equality under s. 15(1) of the Charter marks a departure from how it was previously interpreted and applied under the Canadian Bill of Rights, S.C. 1960, c. 44. While the Canadian Bill of Rights provided only for equality before the law, our Court noted in Andrews that s. 15(1) provides “a much broader protection”, including equality under the law, equal protection of the law, and equal benefit of the law (p. 170). This case deals with equal benefit of the law. Prior Canadian Bill of Rights jurisprudence had interpreted the equality right narrowly and in a formalistic manner (ibid.; see Attorney General of Canada v. Lavell, 1973 CanLII 175 (SCC), [1974] S.C.R. 1349; Bliss v. Attorney General of Canada, 1978 CanLII 25 (SCC), [1979] 1 S.C.R. 183). By contrast, with its earliest s. 15(1) jurisprudence, this Court rejected the “rigid formalism” used to interpret the Canadian Bill of Rights in favour of a more purposive approach (Law v. Canada (Minister of Employment and Immigration), 1999 CanLII 675 (SCC), [1999] 1 S.C.R. 497, at para. 3; Andrews, at p. 170).
[36] In line with a purposive approach, this Court has repeatedly affirmed substantive equality as the “animating norm” of s. 15(1) (Withler v. Canada (Attorney General), 2011 SCC 12, [2011] 1 S.C.R. 396, at para. 2; see also R. v. Kapp, 2008 SCC 41, [2008] 2 S.C.R. 483, at paras. 15‑16; Quebec (Attorney General) v. Alliance du personnel professionnel et technique de la santé et des services sociaux, 2018 SCC 17, [2018] 1 S.C.R. 464, at para. 25; Fraser v. Canada (Attorney General), 2020 SCC 28, [2020] 3 S.C.R. 113, at para. 42; R. v. Sharma, 2022 SCC 39, [2022] 3 S.C.R. 147, at para. 37). Substantive equality underlies our s. 15(1) test; it looks beyond the apparent neutrality of a law to consider a law’s actual effects on disadvantaged groups (Withler, at paras. 39-40; Kahkewistahaw First Nation v. Taypotat, 2015 SCC 30, [2015] 2 S.C.R. 548, at paras. 17-18; Fraser, at para. 42). “The focus of the inquiry is on the actual impact of the impugned law, taking full account of social, political, economic and historical factors concerning the group” (Withler, at para. 39). These patterns of disadvantage can include financial precarity, physical and psychological harm, political and social exclusion, and other institutional barriers (Fraser, at para. 76, citing C. Sheppard, Inclusive Equality: The Relational Dimensions of Systemic Discrimination in Canada (2010), at pp. 62-63; see also S. Fredman, Discrimination Law (2nd ed. 2011), at pp. 25-26).
[37] Intended to promote substantive equality, s. 15(1) protects individuals not only from laws which explicitly or intentionally discriminate but also from laws which are facially neutral and yet discriminate through their impact on certain groups. This indirect discrimination is known as adverse effects discrimination (Ontario Human Rights Commission v. Simpsons-Sears Ltd., 1985 CanLII 18 (SCC), [1985] 2 S.C.R. 536, at p. 551; McKinney v. University of Guelph, 1990 CanLII 60 (SCC), [1990] 3 S.C.R. 229, at p. 279; Tétreault-Gadoury v. Canada (Employment and Immigration Commission), 1991 CanLII 12 (SCC), [1991] 2 S.C.R. 22, at p. 41; see also Fraser, at para. 45). Substantive equality is distinct from formal equality, which would treat everyone identically, regardless of their differences. When applied to people in unequal circumstances, formal equality can result in injustice.
[38] Put differently, identical or facially neutral treatment, with no intention to discriminate, can have effects that facilitate the discriminatory treatment of groups based on protected grounds (Andrews, at p. 164; Fraser, at para. 47). A clear example of adverse impacts discrimination in practice is found in this Court’s decision in British Columbia (Public Service Employee Relations Commission) v. BCGSEU, 1999 CanLII 652 (SCC), [1999] 3 S.C.R. 3. That case considered whether the government of British Columbia had improperly dismissed a forest firefighter from her job after she failed to meet a newly adopted aerobic fitness standard, despite having passed three other fitness tests and having successfully performed her duties for three years before the new standard was implemented. While the aerobic fitness standard applied equally to all firefighters, evidence demonstrated that due to physiological differences, most women have a lower aerobic capacity than men and most women, unlike most men, could not increase their capacity even with training to meet the requirements of the aerobic fitness test (para. 11). While 65 to 70 percent of male applicants could pass the new fitness tests on their initial attempts, only 35 percent of female applicants could do so (ibid.). This Court accepted that the standard was discriminatory in impact because it effectively prevented otherwise qualified female candidates from employment only due to their sex (paras. 69-70).
[39] To appreciate the full scope of a law’s impact, an approach based on substantive equality must acknowledge that discrimination will not be felt by all members of a disadvantaged group in the same way. People in the same protected group may have very different experiences and face unique challenges based on their intersecting identities and realities — including, for example, their race, religion, ethnic background, sex, age, disability, sexual orientation, parental status, socioeconomic status, immigration status, or language abilities (I.F., National Association of Women and the Law and David Asper Centre for Constitutional Rights, at para. 10; I.F., Refugee Centre, at para. 10).
[40] The recognition of a particular claimant’s intersecting identities and realities — sometimes called an intersectional approach — is not novel in the s. 15(1) analysis. Rather, on multiple occasions, this Court has highlighted the importance of taking account of these broader characteristics at both stages of the s. 15(1) test. For instance, in Ontario (Attorney General) v. G, 2020 SCC 38, [2020] 3 S.C.R. 629, this Court was clear that substantive equality requires a nuanced consideration of the concrete circumstances of a particular claimant group at both steps of the s. 15(1) test: “Substantive equality focuses both steps of the s. 15(1) analysis on the concrete, material impacts the challenged law has on the claimant and the protected group or groups . . . in the context of their actual circumstances, including historical and present-day social, political, and legal disadvantage” (para. 43 (emphasis added); see also Fraser, at para. 57). This Court went on to point out that “intersecting group membership tends to amplify discriminatory effects . . . or can create unique discriminatory effects not visited upon any group viewed in isolation” (Ontario v. G, at para. 47; see also Law, at para. 94; Nova Scotia (Workers’ Compensation Board) v. Martin, 2003 SCC 54, [2003] 2 S.C.R. 504, at para. 81; Fraser, at para. 116; Benner v. Canada (Secretary of State), 1997 CanLII 376 (SCC), [1997] 1 S.C.R. 358, at para. 85).
[41] In the first step of the s. 15(1) inquiry, which focuses on identifying a distinction based on an enumerated or analogous ground, consideration of a claimant group’s intersecting identities and realities is relevant because of the step’s emphasis on whether a government decision disproportionately impacts a particular claimant group directly or indirectly. An inquiry into such impact cannot be divorced from a claimant group’s unique situation, which may include intersecting identities and realities that create or contribute to the distinction.
[42] This is clear in cases where a distinction based on a protected ground affects a subset of a protected group. It has long been accepted that “differential treatment can occur on the basis of an enumerated [or analogous] ground despite the fact that not all persons belonging to the relevant group are equally mistreated” (Fraser, at para. 75, quoting Martin, at para. 76; see also Centrale des syndicats du Québec v. Quebec (Attorney General), 2018 SCC 18, [2018] 1 S.C.R. 522, at para. 28; Quebec (Attorney General) v. A, 2013 SCC 5, [2013] 1 S.C.R. 61, at paras. 354-55; Brooks v. Canada Safeway Ltd., 1989 CanLII 96 (SCC), [1989] 1 S.C.R. 1219, at p. 1248). In these contexts, claimants can satisfy step one of the s. 15(1) analysis even if they only make up a subgroup experiencing adverse effects. This is because such adverse effects arise from the nexus between a distinction that may not be rooted in an enumerated characteristic and a subgroup that must share an enumerated ground. Here, that specific nexus is between “refugee claimant status” (a characteristic that is not protected) and “sex” (an enumerated ground shared by the subgroup experiencing the adverse effect).
[43] This approach does not transform the s. 15(1) analysis into one that captures “‘hybridized’ grounds” that are not rooted in protected grounds (Rowe J.’s reasons, at para. 150). To the contrary, while the impacts of a law will not always, on their face, involve an enumerated or analogous ground, the basis for the distinction under s. 15(1) will — and must always — be tethered to a protected ground. The nuance here is that to precisely identify and understand a distinction rooted in a protected ground, courts may benefit from looking at a claimant group’s intersecting identities and realities (Fraser, at para. 57, citing Withler, at paras. 43 and 64). This nuance is exemplified in this case, where it is only possible to identify a sex-based distinction after a contextual inquiry into the circumstances shared by individuals like Ms. Kanyinda. It is evident that s. 3 of the RCR does not exclude all women, but rather a subset of women — women refugee claimants — from the benefit of subsidized daycare.
[44] Further, it may be that a challenged law creates a distinction on more than one protected ground. I reject any suggestion that there is a mandated order in which the Court must address multiple claims under s. 15(1).
[45] Consideration of a claimant group’s intersecting identities and realities is similarly relevant under the second step of the s. 15(1) analysis, where courts must assess whether the distinction has the effect of reinforcing, perpetuating or exacerbating a claimant’s disadvantage. This inquiry is shaped by that claimant group’s unique circumstances, including any intersecting identities and realities, because it seeks to understand how a distinction causes or contributes to “economic exclusion or disadvantage, social exclusion, psychological harms, physical harms or political exclusion” (Sharma, at para. 52; see also Fraser, at para. 76). These forms of exclusions and harms can be intimately related to, if not rooted in, the specific identities and realities shared by a particular group.
[46] Thus, a contextual appreciation of intersecting identities and realities can help courts in both assessing the specific impacts of the challenged law, and the way that a law may perpetuate existing disadvantage. While many of these circumstances may reflect or result in hardship or marginalization for a particular claimant group — such that the word “disadvantage” is often used in connection with both steps of the s. 15(1) test — this overlap does not undermine the conceptual clarity of the two distinct stages of the test.
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