FCJ Refugee Centre intervened in the case, advocating for the right to access childcare and for a broader prohibition on discrimination based on a person’s immigration status

Refugee claimants with young children in Quebec are eligible for the province’s subsidized child-care system, the Supreme Court ruled earlier this month in a majority decision that focused on Charter equality rights.

The case dates back to October 2018, when Bijou Cibuabua Kanyinda, originally from the Democratic Republic of Congo and a mother of three young children, applied for refugee status after entering Canada at Roxham Road on Quebec’s border with the United States.

While her application was pending, she received a work permit and looked for subsidized child-care, but she was rejected on the grounds that Quebec public child-care system is open to people with refugee status but not to those with pending claims.

Ms. Kanyinda challenged the regulation in court, in a case in which FCJ Refugee Centre intervened, advocating for her right to access childcare and for a broader prohibition on discrimination based on a person’s immigration status.

On March 6, eight of nine Supreme Court judges agreed that the Quebec regulation violated the equality rights of refugee women under Section 15 of the Canadian Charter of Rights and Freedoms, both by posing a disparate impact on their ability to access the labour market and by furthering their social isolation.

The Supreme Court dismissed the government’s appeal and affirmed the judgment of the Court of Appeal for Quebec below, which had come to the same conclusion. As a remedy, the Court took the step of reading in refugee claimants to the list of persons in the statute who qualify for subsidized daycare in the province.

FCJ Refugee Centre’s arguments at the Supreme Court focused on whether immigration status should be considered an analogous ground under Section 15 of the Charter, which prohibits discrimination on a variety of grounds including race, sex, etc.

While the court did not go so far as to recognize immigration status as an analogous ground, this decision represents a big win. Significantly, Chief Justice Richard Wagner wrote a concurring opinion in which he found that refugee claimants form an analogous category under Section15 of the Charter, meaning disadvantaging refugee claimants solely because they are refugee claimants would be impermissible discrimination under Canada’s constitution. Since Chief Justice Wagner was writing alone on this point, his concurring opinion does not change the law, but it is an important step in the right direction.

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FCJ Refugee Centre would like to thank all the organizations and lawyers who have worked on this case, including Joshua Eisen, FCJ Refugee Centre’s In-House Lawyer; Y. Y. Brandon Chen, Associate Professor at the University of Ottawa, Faculty of Law; the Madhu Verma Migrant Justice Centre; and Bruce Porter, from the Social Rights Advocacy Centre.