The Supreme Court's ruling is specific to Quebec, but legal experts said the judgment could have broader national implications in similar situations.Brendan Burden/The Globe and Mail
Asylum seekers who have young children in Quebec are eligible for the province’s subsidized child-care system, the Supreme Court ruled on Friday morning in a decision that focused on Charter equality rights.
The roots of the case stretch back to October, 2018, when Bijou Cibuabua Kanyinda entered Canada at Roxham Road on Quebec’s border with the United States. Ms. Kanyinda, originally from the Democratic Republic of the Congo and a mother of three young children, applied for refugee status. While that was pending, she received a work permit and looked for subsidized child-care spots.
She was rejected, because the province’s public child-care system was open to people with refugee status but not those with pending claims. Ms. Kanyinda challenged the regulation in court.
On Friday, eight of the nine Supreme Court judges agreed that the Quebec regulation violated constitutional equality rights under Section 15 of the Charter of Rights and Freedoms.
The case, which was heard over two days last May and attracted widespread legal attention, lands at a time when there are political debates across the country about the provision of public social services to people who are seeking asylum in Canada.
The court’s majority judgment, from six judges and written by Justice Andromache Karakatsanis, ordered that the provincial regulation about eligibility for Quebec’s subsidized child care include parents residing in the province who are refugee claimants, even if they don’t have a work permit.
The ruling from the top court is specific to Quebec, but legal experts on Friday morning said the judgment’s details on Charter equality rights could have broader national implications in similar situations.
“Women continue to carry a greater share of child-care responsibilities,” wrote Justice Karakatsanis, “and the availability of affordable daycare is directly linked to their ability to work – something well established in our jurisprudence.”
Kateri Champagne Jourdain, the Quebec minister responsible for families, said in a social-media post that the province had taken in almost twice as many asylum seekers than its share of the Canadian population, and that its child-care system faced significant pressure.
The federal government, in its arguments at the court last year, had said laws that make distinctions based on immigration status were valid. But on Friday, Canadian Identity Minister Marc Miller said the Supreme Court made the right decision, adding that the initial exclusion of asylum seekers from subsidized child care was wrong.
“It targeted a group of kids that need to be supported,” said Mr. Miller.
The Supreme Court judgment in favour of refugee claimants is a win for equality rights and fits in the top court’s previous judgments on the issues, said Mohsen Seddigh, a Toronto lawyer who was counsel for the Black Action Defense Committee, an intervener group in the case.
“The court sees people in their variety of circumstances and vulnerabilities and isn’t too rigid in applying equality protections,” Mr. Seddigh said.
The Canadian Constitution Foundation, an intervener that wanted the Supreme Court to require a higher standard of evidence on questions of discrimination, said in a statement that Friday’s ruling means governments will have to consider providing social programs at equal levels to asylum seekers.
Despite a majority ruling from six judges, and eight of nine judges agreeing on the main issue in the case – whether the Quebec regulation infringed on Charter equality rights – the Supreme Court split into four camps on Friday. The full judgment was 224 pages and more than 40,000 words.
Equality-rights cases at the top court have for decades involved complicated legal reasoning. In the first big ruling in 1989, during the Charter’s early years, the Supreme Court said equality was “an elusive concept” and “it lacks precise definition” – more than any other right or freedom in the Charter.
Alongside the main ruling on Friday, Justice Malcolm Rowe wrote concurring reasons that generally supported the majority but disagreed on the Charter analysis necessary to reach that conclusion.
Chief Justice Richard Wagner also issued concurring reasons and likewise agreed that the Quebec regulation violated Charter equality rights.
The Chief Justice, however, more specifically focused on the fact that Ms. Kanyinda was an asylum seeker. In his opinion, he said that Quebec’s exclusion of refugee claimants from subsidized child care creates what is called “an analogous ground” under Section 15 equality rights – meaning that being an asylum seeker is a basis on which equality rights should be considered.
Sibel Ataogul, a lawyer for Ms. Kanyinda, said the ruling’s recognition that lack of access to child care disproportionately affects women is important. She said Chief Justice Wagner’s opinion focusing on refugee claimants was particularly important, given he is from Montreal.
“We have a provincial government that has really made immigrants its scapegoat,” Ms. Ataogul said.
Sajeda Hedaraly, a lawyer for co-interveners, the Canadian Association of Black Lawyers and Black Legal Action Centre, pointed to the majority’s highlighting of the intersection of identities, with Ms. Kanyinda being a woman and a refugee claimant. (She was granted refugee status in 2021.)
Justice Karakatsanis stated: “People in the same protected group may have very different experiences and face unique challenges based on their intersecting identities and realities.”
The court’s analysis that the violation of equality rights could not be justified under the reasonable limits of Section 1 of the Charter was another important part of the judgment that could influence future cases, said Connor Bildfell, lawyer for the Canadian Association of Refugee Lawyers, another intervener.
Mr. Bildfell said laws where there is a weak or non-existent connection with governments’ stated objective could be vulnerable.
Justice Suzanne Côté was the lone dissent in the case. She said the Quebec regulation doesn’t discriminate based on sex but on the grounds of refugee claimant status. But unlike the Chief Justice, Justice Côté said such a status cannot be recognized as a new analogous ground under Section 15 of the Charter.