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OTTAWA – Today, the Supreme Court of Canada found that Quebec discriminated against female asylum seekers on the basis of sex by denying them access to subsidized daycare while they await decisions on their refugee claims. 

Quebec will need to provide the benefit unless it uses section 33 of the Charter, the notwithstanding clause, to pass a law to deny the benefits.

Justice Karakatsanis writing for six judges in the majority endorsed taking an “intersectional approach” to deciding whether there has been a distinction made between groups, and whether the effect of that distinction is discriminatory. Justice Karakatsanis’s opinion also states that infringements of section 15(1) can occur even if the state action or law is not arbitrary. 

Justices Rowe and Chief Justice Wagner wrote concurring opinions agreeing with the result. 

Justice Côté dissented, finding no discrimination.

The Canadian Constitution Foundation (CCF) had intervened in this case to argue for a higher standard of evidence than the majority required. Justice Karakatsanis found that no specific form of evidence is required to prove that a group faces a distinction.

CCF Interim Executive Director Christine Van Geyn said that the decision opens the door to an increasing number of novel discrimination claims when governments provide social programs.

“The repercussion of this decision is that governments will now need to consider providing all social programs at equal levels to asylum seekers, unless they’re willing to use the notwithstanding clause to block that for five years at a time,” she explained.

The case began in 2018 when Bijou Cibuabua Kanyinda, a Congolese woman, crossed into Quebec at Roxham Road with her three children and claimed refugee status. While waiting for a decision on her claim, she obtained a work permit in Quebec but was denied access to the province’s subsidized daycare program because her refugee status had not yet been formally confirmed.

Ms. Kanyinda challenged the policy under section 15(1) of the Charter, which guarantees equal protection and equal benefit of the law without discrimination. 

In February 2024, the Quebec Court of Appeal ruled in her favour, finding the policy was discriminatory and had a disproportionate impact on women by limiting their ability to participate in the workforce.

The CCF thanks Jean-François Trudelle and Guillaume Pelegrin of Fasken Martineau Dumoulin for their work on this case.