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OTTAWA — The Supreme Court of Canada has granted the CCF leave to intervene in a case about the scope of the right to equality under section 15 of the Canadian Charter of Rights and Freedoms. The question in the case is what limits the Quebec government can place on who can obtain a taxpayer subsidized daycare spot, and whether excluding irregular border crossers whose refugee status has not been determined or verified is constitutional.

In 2018, Ms. Bijou Cibuabua Kanyinda, a Congolese asylum claimant, entered Canada at Roxham Road, Quebec, with her three children. While waiting for a determination on her asylum status, Ms. Kanyinda was granted a work permit but denied access to subsidized daycare on the basis that her asylum claim was awaiting decision. Ms. Kanyinda argued that the policy was discriminatory, violating her section 15 Charter right to equal protection and benefit of the law without discrimination. The Quebec Court of Appeal ruled in her favour, concluding that the policy creates an adverse impact on women seeking asylum and perpetuates the historic disadvantages faced by women in accessing affordable childcare and participating in the workforce.

The CCF will be arguing May 14-15, 2025 that governments should be permitted to put limits on who can access benefits programs without facing accusations of discrimination. Specifically, the CCF will advocate that when courts apply the two-step section 15 Charter test for discrimination, they should maintain consistency in how they define and compare groups across both steps of the analysis. This “symmetry” would ensure that the same comparison framework is used throughout the entire legal test.

“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 be required to continue to expand.”

The outcome of this challenge has the potential to clarify the jurisprudence around section 15, which has been in a state of flux. The CCF’s arguments will in particular impact how the comparable groups are determined in section 15 discrimination claims. The Supreme Court’s decision will contribute to the evolving interpretation of section 15 and its application to complex issues, including gender, immigration status, and who may access public services.