Supreme Court of Canada Upholds a Right of Asylum Seekers in Quebec
Excluding Refugee Claimants from Subsidized Childcare Discriminates Against Women
On Friday, March 6, the Supreme Court of Canada released its decision in Attorney General of Quebec v. Bijou Cibuabua Kanyinda, ruling that excluding refugee claimants from subsidized childcare discriminates against women. The appeal involved a Charter equality challenge asking whether Quebec's exclusion of refugee claimants with work permits from government subsidized childcare discriminates under s. 15 (Equality rights), and if so, what the remedy should be.
The
case dealt with access to subsidized childcare for refugee
claimants in
Quebec. For government programs or benefits to comply with the Canadian
Charter of Rights and Freedoms, they must not
discriminate against particular groups. The Court was asked to
decide whether excluding
refugee claimants from subsidized childcare is discriminatory
and, if so, whether the government can justify the exclusion.
Ms. Kanyinda, originally from the Democratic Republic of Congo, entered Quebec in October 2018 via Roxham Road with her three young children and made a claim for refugee protection. While awaiting the decision, she obtained a work permit and tried to get subsidized childcare so that she could work. This was denied to her because Quebec's Reduced Contribution Regulation limits subsidized childcare to certain categories of residents that do not include refugee claimants.
Ms. Kanyinda applied for judicial review of the Regulation, arguing that the exclusion of refugee claimants was discriminatory on three grounds: sex, citizenship, and a new analogous ground of immigration status. Sex and citizenship have long been recognized as possible grounds of discrimination, but immigration status has not. The judge concluded that the Regulation did not create a sex-based distinction between male and female refugee claimants.
The Court of Appeal of Quebec allowed Ms. Kanyinda's appeal, concluding that the Regulation did create a distinction based on sex and that it was discriminatory because it perpetuates women's historical disadvantage and under-representation in the workforce. The Attorney General of Quebec appealed to the Supreme Court of Canada, which allowed the appeal in part.
Supreme Court Finds Regulation Has a Greater Impact on Women Refugee Claimants Because Access to Childcare Affects Their Ability to Work
Writing for the majority, Justice Andromache Karakatsanis of the Supreme Court of Canada concluded that the Regulation discriminates based on its effects. She wrote that although the rule applies to all refugee claimants, it has a greater effect on women refugee claimants. Women are more likely to have primary childcare responsibilities and their ability to work is closely tied to access to affordable childcare, the Supreme Court judge determined. As a result, the Court found that the exclusion reinforces and worsens the disadvantage experienced by women refugee claimants.
Justice Karakatsanis also concluded that the discrimination was not justified under section 1 of the Canadian Charter of Rights and Freedoms. Section 1 allows governments to limit Charter rights if the limits can be reasonably justified. While she found that Quebec's goal of limiting subsidized childcare to people with a sufficient connection to the province was important, she found no real link between that goal and excluding refugee claimants. Therefore, parents residing in Quebec who are refugee claimants should be eligible for subsidized childcare. While the Court of Appeal limited the access to work permit holders, Justice Karakatsanis concluded that this requirement was not necessary.
(Source: Judgement of Supreme Court of Canada)
This article was published in
Volume 56 Number 7 - March 13, 2026
Article Link:
https://cpcml.ca/TML2026/Articles/T560077.HTM
Website: www.cpcml.ca Email: editor@cpcml.ca