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In Quebec (Attorney General) v Kanyinda, 2026 SCC 7 [Kanyinda], the Supreme Court of Canada (“SCC”) considered whether the provincial subsidized childcare regime of Quebec violates the equality rights guaranteed under s. 15(1) of the Canadian Charter of Rights and Freedoms, The Constitution Act, 1982, Schedule B to the Canada Act 1982 (UK), 1982, c 11, [Charter]. Karakatsanis J., writing for the majority, held that the provisions of the Reduced Contribution Regulation (“RCR”) that excluded refugee claimants from eligibility to participate in the subsidized childcare program created adverse effects discrimination based on sex. Although facially neutral, the legislative scheme disproportionately impacted and burdened female refugee claimants, who are more likely to bear the primary burden of childcare responsibilities.
This decision affirmed the decision of the Quebec Court of Appeal (“QCCA”), which also held that the Regulation was an unreasonable infringement against s. 15. As a remedy, the SCC ordered that refugee claimants should be “read in” to the class of eligible parents under the RCR. More broadly, this decision reinforces the SCC's commitment to substantive equality by recognizing how adverse effects discrimination can nonetheless be perpetuated by otherwise well-intentioned social programs aiming to support historically marginalized groups.
Facts
Bijou Cibuabua Kanyinda arrived in Quebec in October 2018 with her three young children after fleeing the Democratic Republic of the Congo (Kanyinda, para 15). Immediately upon arrival, she made a refugee protection claim under the Immigration and Refugee Protection Act, SC 2001, c 27. While her claim was pending, she lived in Quebec with a valid work permit, sought employment to support her family, and unsuccessfully endeavoured to find subsidized childcare for her children (Kanyinda, para 16).
Several childcare centres informed Ms. Kanyinda that she was not eligible for the reduced daily rate because she was a refugee claimant rather than a recognized refugee with status. The refusals were based on s. 3 of Quebec’s RCR, enacted under the Educational Childcare Act, SQ 2005, c 47 (Kanyinda, para 16).
S.3 of the RCR lists categories of parents eligible for subsidized childcare, including Canadian citizens, permanent residents, certain temporary residents with work permits, and individuals whose refugee claims have already been accepted. Refugee claimants awaiting a decision on their claims are not included among eligible categories (Kanyinda, para 4).
S.15(1) of the Charter confirms that “every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.” Based on these grounds, Ms. Kanyinda brought an application for judicial review in 2019, arguing that the exclusion of refugee claimants from the RCR violated s. 15(1) of the Charter, because it discriminates based on sex, citizenship, and a new proposed analogous ground of immigration status. (Kanyinda, para 17).
Judicial History
The Superior Court of Quebec
At trial, the application judge dismissed Ms. Kanyinda’s claim, holding that s. 3 of the RCR did not create a sex-based distinction between women and men refugee claimants. The judge concluded that the evidentiary record did not sufficiently establish the extent to which women refugee claimants disproportionately bear the financial burden of childcare. Absent such evidence, the court found that the claim of adverse effects discrimination could not succeed (Kanyinda, para 18).
Turning to the issue of citizenship, the judge also rejected the argument that the legislation discriminated against individuals based on their citizenship status. Because eligibility extended beyond Canadian citizens to multiple categories of non-citizens, the provision could not be characterized as citizenship-based discrimination (Kanyinda, para 19).
Finally, the court declined to recognize immigration status as a new analogous ground under s.15(1). In the judge’s view, immigration status lacked the kind of immutability traditionally associated with analogous grounds (Kanyinda, para 19).
Having rejected these arguments, the Superior Court concluded that the exclusion of refugee claimants from subsidized daycare did not violate the Charter (Kanyinda, para 19).
The Court of Appeal
On appeal, the QCCA reversed the lower court’s decision, finding that Ms. Kanyinda’s evidence, particularly expert testimony from Dr. Jill Hanley, demonstrated that women refugee claimants bear disproportionate childcare responsibilities and that the lack of affordable daycare constitutes a major barrier to their employment. As such, the QCCA found that “daycare was essential for many women to enter the workforce” (Kanyinda, para 20). In turn, while the regulation applied in a facially neutral manner, its practical effect disproportionately burdened women because they were more likely to remain out of the workforce due to childcare obligations (Kanyinda, para 21).
In examining whether this discriminatory effect could be justified under s. 1 of the Charter, the QCCA further held that the infringement was not reasonable. While Quebec’s pressing and substantial objective of limiting subsidies to “only those with a sufficient connection with the province” was accepted by the court, the government failed to demonstrate a rational connection between that objective and the exclusion of refugee claimants (Kanyinda, para 22).
As a remedy, the QCCA ordered that refugee claimants with work permits and residing in Quebec be “read in” to s. 3 of the RCR as an additional category of eligible parents (Kanyinda, para 23).
The Attorney General of Quebec appealed this decision to the Supreme Court of Canada.
The Supreme Court of Canada
Issues
The SCC identified three central issues (Kanyinda, para 27):
- Does s. 3 of the RCR infringe s.15(1) of the Charter by discriminating against refugee claimants on the basis of sex?
- If so, can the infringement be justified under s. 1 of the Charter?
- If the provision cannot be justified, what is the appropriate remedy?
The Decision
In a majority decision ruled 8–1, with Karakatsanis J. writing for the majority, Rowe J. and Wagner C.J. concurring separately, and Côté J. dissenting, the SCC allowed the appeal in part, and upheld the QCCA’s decision that s. 3 of RCR violated the equality rights under s. 15(1) of the Charter. (Kanyinda, paras 6, 114, 208, 278).
The majority applied the s.15(1) test; where “to prove an infringement of s. 15(1), a claimant must show the challenged law or state action: (1) on its face or in its impact, creates a distinction based on listed or analogous grounds; and (2) imposes burdens or denies a benefit in a manner that has the effect of reinforcing, perpetuating, or exacerbating disadvantage” (Kanyinda, para 48).
In assessing the first stage, the Attorney General of Quebec (“AGQ”) asserted that the ineligibility for subsidized daycare does not disproportionately impact women, as it imposes an equal barrier to male and female refugee claimants alike. Nonetheless, the SCC agreed favourably with Ms. Kanyinda’s lived experience and expert evidence that “while men refugee claimants are also denied subsidized daycare, the impact on the women is greater because they bear more childcare responsibilities and thus face more barriers entering the workforce”. As such, the majority held that the provision, in its effects, created a distinction based on sex, satisfying the first step of the s. 15(1) test (Kanyinda, para 72).
Turning to the second stage, the majority agreed that “s. 3 of the RCR reinforces, perpetuates, and exacerbates the disadvantage of women asylum seekers” (Kanyinda, para 85). While the regulations in s. 3 were equal in principle, their effects disproportionately burdened female refugee claimants because women often bear the responsibility of childcare and are far more likely to face barriers in acquiring work when affordable childcare is unavailable to them. As the SCC had held in Fraser v Canada (Attorney General), 2020 SCC 28, step two of the s. 15(1) test will be satisfied when “the legislative design perpetuates[s] a long‑standing source of economic disadvantage for women” (Kanyinda, para 87). The step two analysis additionally examined the many intersecting forms of disadvantage faced by women refugee claimants with children and confirmed that the resulting disadvantages flowed directly from the s. 3 RCR regulations.
The majority further held that the infringement could not be justified under s.1 of the Charter. Quebec’s objective of limiting subsidies to individuals with a sufficient connection to the province was accepted as pressing and substantial. However, the government failed to demonstrate a rational connection between that objective and the exclusion of refugee claimants, particularly given that other temporary residents with similarly uncertain long-term status remained eligible for the program (Kanyinda, para 97).
The Court concluded that the appropriate remedy was to “read in” that s. 3 of the RCR includes all parents residing in Quebec who are refugee claimants. This remedy extended the benefits of the regulation to a group that had been wrongly excluded while preserving the broader structure of the childcare program (Kanyinda, para 112).
Analysis
At its core, Kanyinda reflects the SCC’s continuing effort to give meaningful effect to substantive equality under s. 15(1) of the Charter. Although the doctrine of adverse effects discrimination has long been recognized in Canada, decisions like Kanyinda demonstrate how seemingly neutral programs can nonetheless perpetuate systemic inequalities for certain groups. Kanyinda reflects a continued commitment to rigorously scrutinizing social structures beyond their surface, in order to address their real-world implications more effectively.
Importantly, the SCC did not limit its analysis to the text of the regulation or to a single contested ground of discrimination; instead, it considered the broader social context in which Ms. Kanyinda, and many other women live. The denial of access to affordable daycare does more than impose a financial burden on affected parents—it effectively bars them from fully participating in the labour market, threatening their economic independence. By highlighting this reality, the Court made clear that equality analysis cannot stop at the surface: policies that claim neutrality can still entrench systemic disadvantages, particularly for women who are too often invisible in the design of “neutral” programs.
Kanyinda is additionally significant for its implications for the treatment of non-Canadian citizens and public social programs. While the Court ultimately grounded its discriminatory analysis on sex rather than immigration status, the decision nonetheless scrutinizes the question of how immigration classifications impact access to public benefits.
In contrast, Côté J.'s dissent illustrates a competing perspective on the appropriate scope of equality rights. In her view, the regulation at issue merely differentiated between types of immigration status as opposed to a sex-based distinction. In turn, since immigration status is not a recognized analogous ground under s. 15. She therefore concluded that there was no infringement of the equality rights protected under s. 15(1) of the Charter. The dissent additionally considered a differing institutional concern: that extending constitutional scrutiny to the architecture and designs of social programs can risk constraining the government's ability to act incrementally to address inequality. If any possible exclusion from a social program is subject to constitutional challenge, we risk encroaching on the legislature’s parliamentary sovereignty.
Ultimately, however, Kanyinda leaves a clear message; equality under the Charter is not merely a facially neutral promise, but rather a promise from the SCC to look beyond formalities and understand the lived experiences and realities of those impacted by Canadian law. In effect, the SCC has signalled that substantive equality demands attention to both visible and invisible barriers alike that continue to shape how women like Ms. Kanyinda can participate fully and equally in Canadian society.