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OTTAWA — Today the Canadian Constitution Foundation (CCF) will appear at the Supreme Court of Canada to intervene in a case on the scope of equality rights under section 15 of the Charter. The result of this challenge could reshape how section 15 is interpreted, particularly in matters involving gender, immigration status, and access to taxpayer-funded services.

The case surrounds Ms. Bijou Cibuabua Kanyinda, a Congolese asylum seeker who crossed into Canada through Roxham Road. Ms. Kanyinda has young children, and wanted access to a Quebec taxpayer-funded daycare spot. Quebec does provide these spaces to refugees, but only those whose claims have been determined by the federal government. As a result, Ms. Kanyinda was initially denied taxpayer-funded daycare while awaiting a decision on her refugee claim. Ms. Kanyinda argued this policy was discriminatory. The Quebec Court of Appeal ruled in her favour.

The CCF will be making arguments to clarify the Charter section 15 test for discrimination. The CCF will argue that the test should apply consistent comparisons at both stages – a principle it calls “symmetry.” More broadly, that governments must be allowed to set limits on access to taxpayer-funded benefits programs without being presumed that these limits are discriminatory.

“The case law around section 15 discrimination claims continues to develop, and the Kanyinda case is an important opportunity to affirm some principles outlined by the Supreme Court in the recent Sharma decision,” said CCF Litigation Director Christine Van Geyn. “Governments must be permitted to put limits on who can access benefits programs and how. Any limit on a benefit program will have some type of differential impact on some group, however that group is defined. If every attempt to restrict access to certain government benefits is discriminatory, the government will either be required to grow infinitely, or it will simply run out of the funds to run these ever-expanding entitlements.”

The CCF is represented in this case by Guillaume Pelegrin and Jean-François Trudelle of Fasken in Montreal. The hearing can be viewed live on the Supreme Court’s website.

LINKS:
Order
Motion Record