Therefore, as a “reading in” Charter remedy, on March 6, Justice Andromache Karakatsanis ruled that the impugned underinclusive Quebec regulation, which made refugee claimants ineligible for subsidized childcare, should be read such that “parents residing in Quebec who are refugee claimants” are eligible for the subsidized daycare rate: Quebec (Attorney General) v. Kanyinda, 2026 SCC 7.
Supreme Court of Canada Justice Andromache Karakatsanis
In his separate concurrence also expressing agreement with the result, Chief Justice Richard Wagner acknowledged “this case could have been decided on the ground of discrimination based on sex, as my colleague Karakatsanis J. demonstrates in well-constructed reasons.”
But the chief justice decided instead to recognize the status of refugee claimant as an analogous ground of prohibited discrimination under s. 15(1) of the Charter, ruling that the impugned provision was unconstitutional on that basis “because it seems to me that direct discrimination based on refugee claimant status is the main pathway to decide this appeal. It is the analytical perspective that most naturally applies in light of the factual and legal context.”
In her lone dissent, Justice Suzanne Côté remarked that “there is no doubt that discrimination based on sex unfortunately continues to exist in our society and can affect both women who are citizens and women who are immigrants.”
However, in the circumstances, the regulation did not create a distinction based on sex but rather on the ground of refugee claimant status, she said. And this distinction “is a lawful one because refugee claimant status is not and cannot be recognized as a new analogous ground,” Justice Côté concluded.
The top court’s four-opinion 224-page ruling (403 paragraphs, plus appendix) came in a far-reaching case that attracted 26 interveners, including the attorneys general of Canada, Ontario, Alberta and B.C.
The Supreme Court’s majority concluded that s. 3 of Quebec’s Reduced Contribution Regulation, which lists the categories of people eligible to receive subsidized daycare in that province, infringes the Charter’s s. 15(1) equality guarantee because it discriminates against women refugee claimants based on sex, in a way that could not be upheld under s. 1 of the Charter.
Justice Karakatsanis noted that the categories of people listed in s. 3 as eligible to receive subsidized daycare include 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. However, 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,” she wrote.
“The denial of subsidized daycare to refugee claimants disproportionately impacts the women in this group and thus creates a distinction based on sex,” she held. “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.”
Justice Karakatsanis said the evidence in the case also makes clear that this sex-based distinction is discriminatory, as lack of access to subsidized daycare perpetuates women’s long-standing socioeconomic 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,” Justice Karakatsanis wrote. “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.”
Justice Karakatsanis held that appellant Attorney General of Quebec had not shown that this discrimination is justified under s. 1 of the Charter. “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,” Justice Karakatsanis reasoned.
“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,” she continued. “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.”
Justice Karakatsanis said the benefit of subsidized childcare 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.”
She ruled that to the extent s. 3 is inconsistent with the equality rights of the Charter, it is “of no force or effect” pursuant to s. 52(1) of the Constitution Act, 1982.
Justice Karakatsanis agreed with the Quebec Court of Appeal below that “reading in” was the appropriate remedy but did not include the Appeal Court’s limitation of eligibility to refugee claimants who hold work permits.
The case arose when Bijou Cibuabua Kanyinda entered Quebec through Roxham Road with her three young children and claimed refugee protection. While waiting for a decision on her refugee claim (which was later granted), she obtained a work permit and tried to get subsidized childcare so that she could work. She was denied because Quebec’s Reduced Contribution Regulation made her ineligible as a refugee claimant.
The application judge at first instance held that s. 3 of the regulation did not create a sex-based distinction between women and men refugee claimants. However, the Court of Appeal allowed Kanyinda’s appeal, ruling that s. 3 of the regulation creates a distinction based on sex, and that the sex-based distinction was discriminatory because it reinforces, perpetuates and contributes to women’s historical disadvantage and underrepresentation in the workforce. As a remedy for the unjustified discrimination, the Court of Appeal ordered that the category of refugee claimants with a work permit and residing in Quebec be read into s. 3 of the regulation.
Sibel Ataogul, Melançon Marceau Grenier Cohen s.e.n.c.
“It made us so mad,” Ataogul recalled of the Charter challenge launched in 2019. “I spoke with my colleagues at the office [and] said, ‘I want to fight this,’ and then my colleague, Guillaume Grenier, who did the file with me, said, ‘Let’s come up with some arguments.’ And we came up with the Charter arguments [and] some administrative law arguments.”
Guillaume Grenier, Melançon Marceau Grenier Cohen s.e.n.c.
Ataogul said the majority’s ruling and Chief Justice Wagner’s concurrence will be salutary for s. 15(1) Charter claimants, in particular for women and for challenges based on immigrant status.
Governments are increasingly denying access to benefits on the basis of immigration status, she said. “Now we have an open door to say, ‘You know what, we’re going to challenge it,’ and we’re going to start using [s.15(1)] more and more. And that, for us, that is incredibly encouraging.”
At press time, Quebec's Ministry of Justice said it could not immediately respond to Law360 Canada's request for comment.
Olga Redko, IMK Advocates LLP
Redko said LEAF was among those arguing that discrimination can have intersectional elements, in the sense that the different aspects of an individual’s personal circumstances — including their subjection to various pre-existing sources of disadvantage — are relevant to understanding the nature of the impact of the impugned legislation on the claimant.
“This was accepted by a majority of the court as being a relevant consideration at both stages of the 15(1) test,” Redko remarked. “Evidence of the impact of the law on the claimant in their particular circumstances is useful for establishing the presence of a distinction, but also for determining whether that distinction is discriminatory.”
In addition to Justice Karakatsanis explicitly recognizing that discrimination can be intersectional, meaning that the specific personal characteristics of a member of a protected group can bear on the way that individual is affected by impugned legislation, Redko said the court “has confirmed that the two parts of the s. 15(1) test are not watertight compartments, and that evidence relevant to establishing a distinction can likewise be relevant at demonstrating discrimination.”
Redko said she would not go so far as to predict that it will be less difficult to successfully litigate s. 15 claims, as the majority does not purport to change the law, “but the precision as to how intersecting personal characteristics factor into the analysis at both steps of the 15(1) test provide important clarification to counsel building the evidentiary record of a s. 15(1) case.”
She added that Chief Justice Wagner’s concurring reasons “seem to open the door to recognizing refugee status as an analogous ground” of discrimination under s. 15.
“Although this was a concurrence and the majority explicitly declined to opine on this point, the chief justice’s reasons could serve as the basis for the development of this argument in full in cases where other grounds of distinction are not available,” Redko remarked.
She called the case “an important reminder to governments that even remedial legislation cannot discriminate.”
Connor Bildfell of Vancouver’s McCarthy Tétrault LLP, who with Simon Bouthillier and Katherine Griffin represented the intervener Canadian Association of Refugee Lawyers (CARL), described the chief justice’s recognition of refugee claimant status as an analogous ground of discrimination under s. 15 as “a big step.”
“The debate … has existed for some time,” he noted. “The majority expressly declined to resolve this debate, leaving it for another day [see para. 26]. But the majority did acknowledge that refugee claimants face stereotypes, historical disadvantage and distinct vulnerabilities in Canadian society,” he noted. “At minimum, this leaves the door open to a future Supreme Court decision recognizing refugee claimant status as an analogous ground of discrimination.”
Bildfell highlighted the importance of what he said was the majority’s “rigorous” approach to the analysis of government justification under s. 1 of the Charter — a point on which CARL focused.
The majority “carefully scrutinized the connection between the stated objective of the Charter limit — namely, limiting benefits to people with a ‘sufficient’ connection to Quebec — and the means chosen by the government to achieve that objective — namely, excluding refugee claimants,” he explained.
“Based on that careful scrutiny, the majority held that the means chosen lacked a rational connection to the stated objective,” Bildfell noted. “The court pointed out that some of the existing categories of eligible persons have a weaker connection to Quebec than refugee claimants. For example, if workers with a work permit, foreign students, and holders of temporary resident permits do have a ‘sufficient’ connection to Quebec, it is difficult to see how refugee claimants, who by definition are seeking to establish themselves permanently in Canada, do not.” Bildfell said CARL expects the court’s rigorous approach to the s. 1 governmental justification analysis will influence future Charter cases, “especially those where the law passed by government has a weak or non-existent connection to the government’s stated objective.”
Guillaume Pelegrin of Montreal’s Fasken Martineau Dumoulin s.e.n.c.r.l., s.r.l., who with Jean-François Trudelle represented the intervener Canadian Constitution Foundation, told Law360 Canada the court’s judgment “has significant implications for the future of the welfare state and for governments’ ability to design targeted social programs without exposing themselves to constitutional challenge.”
He said that, from a constitutional perspective, “the case raises important questions about whether governments will retain sufficient flexibility to craft effective social policies without every distinction being reframed as discriminatory.”
The court’s confirmation that s. 15 claims may be advanced on intersecting multiple grounds simultaneously “will add challenges for the future, as it broadens the potential scope of s. 15 claims and increases the evidentiary and analytical complexity for both claimants and governments defending social programs,” Pelegrin predicted.
As a result of the judgment, he said Quebec will likely need to quickly extend subsidized childcare to refugee claimants, even if they don’t have work permits.
“The ruling will encourage more cautious, less targeted social programs design to avoid future equality challenges,” Pelegrin suggested.
“It may discourage governments from creating conditional or narrowly tailored benefits, out of fear that they will be struck down as discriminatory or forced to expand beyond their intended scope.”
He opined that, paradoxically, equality rights claims could lead to fewer such programs overall, “as governments increasingly choose broader, less innovative designs to reduce Charter litigation risks.”
Pelegrin suggested that a main message to the Quebec government and other governments is that in balancing the interests of equality seekers with that of the different parliaments across the country, “the Supreme Court has further diminished the influence of the latter in shaping public welfare policies.”
In the wake of Kanyinda, the structure of the s. 15 test remains clear in its basic elements, but “we believe the judgment renders the test more complex by reinforcing a highly contextual, effects-based and discretionary approach that relies heavily on judicial characterization of disadvantage and surrounding circumstances, thereby limiting predictability and legal certainty for future cases,” he said.
Harini Sivalingam, Canadian Civil Liberties Association
“It recognizes that barriers to essential services like childcare can have profound consequences for families, particularly for migrant women navigating multiple forms of disadvantage,” Sivalingam said.
In a statement, the CCLA said the judgment displays a “substantive and intersectional approach to equality” under the Charter.
The CCLA had intervened in the case to argue that there was no constitutional basis to discriminate against refugee claimants in their access to social services like childcare and that migration status, as with sex, should be recognized as a protected ground under s. 15(1) of the Charter.
“While we would have welcomed deeper engagement from the majority on whether refugee status should be recognized as an analogous ground under the Charter’s equality guarantee — as the chief justice did — this ruling is still a meaningful step forward,” the CCLA said. “At a time when some governments are considering restricting newcomers’ access to basic social services, the court’s affirmation that equality rights must apply to everyone living in Canada is very timely.”
Lawrence David, University of Ottawa
It “will have significant ramifications in shaping law and public policy affecting asylum claimants,” said David, who with Gjergji Hasa of Montreal’s Hasa Avocats Inc. represented the intervener Association québécoise des avocats et avocates en droit de l’immigration.
“This judgment is a vindication of decades’ worth of advocacy work by the immigration law bar to establish that excluding asylum claimants from government programs or benefits is discriminatory, including against women who are asylum claimants,” he said. “The Federal Court, Federal Court of Appeal and Tax Court of Canada had all previously held to the contrary.”
David predicted that the reasons of the majority, and Justice Rowe’s concurrence, which state that the ineligibility measure has a significant adverse impact on women refugee claimants, “will limit legislatures’ ability to restrict asylum claimants’ access to government programs and benefits that are available to other members of the general public.”
“Any such exclusion of asylum claimants can now be challenged on the basis that it deleteriously impacts on a subset of asylum claimants also characterized by one or more enumerated or analogous grounds of discrimination, such as sex,” he said. “For example, cuts to the Interim Federal Health Program can be challenged on the basis that they more deleteriously impact on children who are asylum claimants.”
He added that Chief Justice Wagner’s recognition that the status of asylum claimant is a prohibited ground of discrimination under s. 15(1) of the Charter will also limit legislatures’ ability to restrict asylum claimants’ access to government programs and benefits that are available to other members of the general public.
“Once a ground is identified as a prohibited basis of discrimination, it stands as a permanent limit on state power,” David noted. “The majority recognizes that s. 3 of the impugned regulation impacted all asylum claimants, which also suggests that they were alive to this issue but more comfortable resolving the appeal on the ground primarily addressed in the courts below, namely, gender. As well, the net effect of the judgment is that subsidized childcare spaces must be available to all asylum claimants — not just women — which is the same remedy that would have been available if the majority had decided the case on the analogous ground of asylum claimants.”
In David’s view, Chief Justice Wagner’s concurrence “opens the door to full-fledged recognition of asylum claimant status as an analogous ground in a future case.”
Overall, he said, Kanyinda “is a significant pronouncement on the law of equality and nondiscrimination, especially as it pertains to asylum seekers. It comes at a time when governments, political parties and other stakeholders continue to significantly target asylum seekers for inferior and indeed, discriminatory treatment.”
Among the federal and provincial government initiatives affecting asylum claimants that will be directly impacted by the law in Kanyinda, he said, are Ottawa’s recent changes to the Interim Federal Health Program that will require asylum claimants to co-pay eligible prescription medication and supplemental health products and services including dental and vision care, effective May 1, 2026.
Another initiative impacted, David suggested, is the Quebec government’s recent policy to cut assistance to asylum seekers who are unaccompanied minors. “At the end of January 2026, the government announced that it would rescind its partial funding of schooling costs for unaccompanied minors awaiting a decision on their refugee claim,” David said. “Interestingly, the government did not even wait for the Supreme Court’s judgment in Kanyinda, despite the fact that the Superior Court and the Court of Appeal held against the government in that matter, and despite the fact that Kanyinda would directly impact the inevitable legal challenges to its policy affecting unaccompanied minor asylum claimants.”
David said the law set out in the judgment would also impact any legal challenge brought to Alberta’s announced restrictions of services and benefits to asylum seekers that are available to other Alberta residents, such as health care, education and social services.
He noted that both the majority and dissent applied the framework set out in Fraser v. Canada (Attorney General), 2020 SCC 28 to determine whether s. 15(1) had been infringed. In his view, this was “not surprising, considering that both the majority and dissent also applied it in R. v. Sharma, 2022 SCC 39, [a decision] which is largely seen as a step backwards in the equality jurisprudence.”
Photo of Justice Andromache Karakatsanis: Jessica Deeks Photography
Photo of Sibel Ataogul: Justine Latour
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