Women who are claiming refugee status in Canada are now able to access to subsidized day care. The Supreme Court of Canada in Quebec (Attorney General) v Kanyinda held that the exclusion of refugee women from this benefit was a breach of s15 equality rights and that this exclusion could not be justified under s1 of The Charter. Against a global backdrop of rising anti-immigrant sentiments, Kanyinda stands out in constitutionally recognising that refugee women are included within the equality provisions of The Charter.

The Quebec law provided subsidized day care to a range of groups including citizens, permanent residents and foreign students but not to refugee claimants. The impact of this exclusion fell disproportionately on refugee women as, opposed to refugee men, as it prevented them from balancing their caring commitments and seeking employment in the labour market. Should the claim be analysed as sex discrimination? Is it the exclusion on the basis of refugee claimant status? Or is the claim best understood as intersectional where both sex and refugee claimant status are at stake? The Court was divided in answering these questions but ultimately this division is positive and portends a potentially strong future for Canadian equality jurisprudence.

The Flatness of Single-Axis Discrimination

Justice Cote, in dissent, analysed Kanyinda on a single ground. She found that the exclusion of refugees did not create a distinction based on sex. Women who are Canadian citizens, women who are permanent residents, women who are foreign students are all entitled to the subsidized daycare, it is only refugee women who are denied and thus according to Justice Cote, ‘sex…is not the source of the distinction…rather the distinctions is based on refugee claimant status.’ [296]. This single-axis approach implied that all women must have a similar experience for the law to create a sex-based distinction, failing to account for how women is not a monolithic category, and that there will be differences in how women experience the law.

Moving Beyond Immutability

In contrast, Chief Justice Wagner analysed the case on the ground of refugee status claimant. Unlike Justice Cote, he recognised this as a new analogous ground and concluded the law creates a distinction on this basis and that it was discriminatory. While his analysis demonstrated broad awareness of gender, it failed to squarely confront that how the exclusion would exacerbate refugee women’s financial dependence on men and cement their exclusion from pursuing economic opportunities in the labour market. The single-axis approach, again, flattens the realities of discrimination.

More encouragingly, in Chief Justice Wagner’s concurring judgment, he adopted a multi-factorial test for establishing new grounds of discrimination under the Charter. Prior to this, the Court would examine whether a proposed ground was immutable or constructively immutable, a test refugee claimant status would struggle to meet as this status was inherently temporary. Rather than adopting the rigidity of the immutability framework, Chief Justice Wagner assessed human dignity, stereotyping, historical disadvantage, discrete and insular minority, vulnerability, marginalisation and whether legislators and jurists have recognised the proposed ground [217]. Given the strong critiques of immutability, this is promising and hopefully ushers in a new era with respect to analogous grounds.

Mainstreaming Intersectionality

At first glance, the majority decision also appears to adopt a single-axis approach as it, like Justice Cote, analyses the case on the ground of sex. However, the majority judgment of Justice Karakatsanis, is more nuanced. She recognises that women’s intersecting and identities shape their experience of discrimination and each component of s15 analytical framework must be alive to women’s intersectional lives.

In assessing if the law creates a distinction, the first step required under the Charter, the analysis ‘cannot be divorced from a claimant group’s unique situation, which may include intersecting identities and realities that create or contribute to that distinction’ [41]. Under the second step, the Court explores whether the distinction, reinforces, perpetuates or exacerbates disadvantage and here too intersectionality plays a role. The investigation into disadvantage ‘is shaped by the claimant group’s unique circumstances’ [45]. Sex, the enumerated ground, is the tether, hook or pivot point and from this the Court can then explore, through a contextual inquiry, into the other identities that assist in determining if there has been a breach of s15. Intersectionality is now mainstreamed into Canadian equality law. Crucially, the intersectional analysis is not confined to examining how enumerated or recognised analogous grounds interact, it is a broader analysis that examines identities, realities, circumstances beyond grounds. Thestrength of this approach, in contrast with the dissent concurring judgments, is that by accounting for the nexus of sex and refugee status, the majority was able to identify with sophistication the harms of the exclusion including gendered financial precarity, limited opportunities to integrate into Canadian society and increased rates of isolation and depression [88].

It is impossible to know impact of this decision but the embracing of intersectionality, the moves away from immutability, there are reasons to be cautiously optimistic on the future of Canadian equality law.