|
Charter - s.15 Discrimination - Sex. 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", meaning that the appellant was eligible for childcare subsidy despite her ungranted refugee status.
Here the court summarized the case:[1] Women in Canada have seen gains in their ability to access economic opportunities and to participate in community and public life. But despite progress in reducing barriers to the workplace, and increased participation in childcare by both parents, women continue to face a double challenge — advancing at work while still shouldering a larger share of the childcare responsibilities at home. The need to balance paid work with caregiving often leads women to take jobs with flexible or part-time hours, to reduce work travel, or to step away from the workforce entirely. The consequences are profound: lower wages, fewer opportunities for advancement, and underrepresentation in positions of leadership.
[2] Legislative initiatives, such as affordable daycare, play a key role in supporting women’s access to employment by easing the burden of caregiving. These initiatives are especially significant for women with fewer means, such as women refugee claimants, for whom access to affordable daycare will often make the difference between entering the workforce and staying at home.
[3] In 1997, Quebec became the first province in Canada to introduce universal subsidized daycare, which marked an important step in the province’s goal to make equal access to the workforce a reality. This program is now governed by the Educational Childcare Act, CQLR, c. S-4.1.1 (ECA), which aims to help parents reconcile their work or study obligations with their family responsibilities (s. 1).
[4] At issue in this appeal is s. 3 of the Reduced Contribution Regulation, CQLR, c. S-4.1.1, r. 1 (RCR), a regulation made under the ECA. Section 3 lists the categories of people eligible to receive subsidized daycare, including residents of Quebec who are Canadian citizens, permanent residents, international students, holders of a temporary resident permit or a work permit, and those with refugee status. Quebec does not provide this subsidy to refugee claimants who have yet to obtain refugee status. Because the application process for refugee status often takes years to complete, this denial of access to subsidized daycare impacts the ability of some refugee claimants with young children to enter the workforce.
[5] The respondent, Ms. Bijou Cibuabua Kanyinda, started an application for judicial review claiming that, by excluding refugee claimants, s. 3 of the RCR discriminates based on sex, citizenship, and a new analogous ground of immigration status and infringes s. 15(1) of the Canadian Charter of Rights and Freedoms. The application judge dismissed these arguments. But the Court of Appeal of Quebec concluded that the provision discriminated based on sex and infringed s. 15(1) of the Charter. It also held that the infringement could not be justified under s. 1. The Attorney General of Quebec (AGQ) now appeals that decision.
[6] As I will explain, I agree with the Court of Appeal that s. 3 of the RCR discriminates based on sex, thus infringing s. 15(1) of the Charter. It does so in a way that cannot be saved by s. 1.
[7] It has long been settled that the underlying principle animating s. 15(1) is substantive equality — rather than formal equality — which is satisfied by treating all individuals the same regardless of their unique circumstances. The insufficiency of this formal equality approach was captured by the French novelist Anatole France, who wrote of “the majestic equality of the laws, which forbid rich and poor alike to sleep under the bridges, to beg in the streets, and to steal their bread” (The Red Lily (1921), at p. 95). Instead, substantive equality looks past neutral text to look at the actual impact of the law on disadvantaged groups.
[8] To establish an infringement of s. 15(1), the claimant must show: (1) the denial of access to subsidized daycare to refugee claimants disproportionately impacts women refugee claimants and thus creates a distinction based on sex; (2) this distinction reinforces, perpetuates, or exacerbates the disadvantages faced by women refugee claimants.
[9] Ms. Kanyinda has satisfied both steps.
[10] The denial of subsidized daycare to refugee claimants disproportionately impacts the women in this group and thus creates a distinction based on sex. This Court has recognized that women continue to bear a larger share of child-rearing responsibilities and that these additional responsibilities affect their ability to take part equally in the workforce. Judicial notice of this point is supplemented here by other evidence, including an expert report authored by Dr. Jill Hanley based on existing literature and three separate research projects in which she participated. One such project was a qualitative study that interviewed “19 mothers who had precarious immigration status during their pregnancy, childbirth and the early years of their child’s life” (The labour implications of the exclusion of refugee claimants from Quebec’s subsidized childcare program (2020) (reproduced in A.R., vol. II, at pp. 68-90), at pp. 15-16). This evidence establishes that denial of affordable daycare directly impacts women refugee claimants’ access to the labour market, particularly for women refugee claimants with young children under the age of six. Only women cited lack of daycare access as the reason they could not work — unaffordable daycare was not a factor in unemployment for any of the men.
[11] This record also makes clear that this sex-based distinction is discriminatory, as lack of access to subsidized daycare perpetuates women’s long-standing socio-economic disadvantages that flow from being excluded from the workforce. These disadvantages are exacerbated by additional vulnerabilities faced by asylum seekers connected to sex, race, and the broader realities of poverty and social isolation. By perpetuating the exclusion of these women from the workforce, the law imposes a barrier to their ability to integrate as respected, contributing members of society. The law also reinforces the harmful stereotype that refugee claimants are a financial burden on Canadian society.
[12] The AGQ has not shown that this discrimination is justified under s. 1. While the objective of limiting the daycare subsidy to those with a sufficient link to Quebec may be pressing and substantial, there is no rational connection between that goal and excluding refugee claimants when the subsidy is extended to others. Temporary workers or foreign students, for example, may have a weaker connection to the province. Under both international and domestic Canadian law, refugees have the right to seek asylum, and Canada has committed not to expel them from the country until their claims are determined. In addition, refugee claimants in Canada may apply for work permits and study permits for post-secondary education. Their children may attend school, and they have access to healthcare services. And more than half of refugee claimants in Quebec are ultimately approved and make their permanent home in Quebec.
[13] This benefit is denied equally to women and men refugee claimants, but its impact is felt disproportionately by women due to the enduring challenges associated with child-rearing responsibilities. While society has made progress in reducing discrimination against women, and men are increasingly involved in caregiving roles within families that often differ greatly from traditional norms, sex discrimination still exists. These ongoing inequalities have especially severe consequences for refugee claimants, whose vulnerable and precarious circumstances heighten their disadvantage.
[14] Thus, to the extent this provision is inconsistent with the equality rights of the Charter, it is “of no force or effect” (s. 52(1) of the Constitution Act, 1982). I agree with the Court of Appeal of Quebec that “reading in” is the appropriate remedy. That said, I would not read in a requirement that refugee claimants hold a work permit. As the AGQ acknowledges, the eligibility requirements in s. 3 of the RCR apply regardless of a parent’s ability to work. I would allow the appeal in part, to change the remedy, and declare that s. 3 of the RCR be read as including, as eligible for the subsidized daycare rate, parents residing in Quebec who are refugee claimants.
|
