Refugee claimants – and women refugee claimants in particular – are among the most vulnerable members of society. Does excluding them from access to subsidized childcare amount to discrimination based on sex, contrary to the equality provision of the Canadian Charter of Rights and Freedoms (‘Charter’)? When the justices of the Supreme Court of Canada (SCC) decide this issue in Quebec v Kanyinda, heard on 14-15 May 2025, they should find that it does.

The challenged provision is section 3 of the Reduced Contribution Regulation, which defines eligibility to Quebec’s subsidized childcare regime. A parent is eligible if they reside in Quebec and fall within one of the listed categories. Refugee claimants – those who are awaiting a determination of their claim for protection – are not included.

The Quebec Court of Appeal found that excluding refugee claimants has a disproportionate impact on women, whose participation in the workforce is more severely hindered when no affordable childcare is available.

The allegation is one of indirect, partial discrimination: the claimant argues that the provision has a disproportionate impact on a subset of a protected group, namely women who are also refugee claimants.

The SCC decision in Fraser v Canada provides guidance on this issue. That case concerned a challenge to a rule preventing employees who job-shared from ‘buying back’ pension rights, despite this option being available to employees in other circumstances. Most job-sharers were women with childcare obligations. The rule clearly did not bar all women from accessing a full pension, yet a majority of the SCC concluded that it had a disproportionate impact on women, and thus contributed to a distinction based on sex in its impact.

Similarly, the rule challenged in Kanyinda excludes both male and female refugee claimants – but the latter subgroup suffers disproportionately as a result of the exclusion.

Another issue arising in Kanyinda is whether immigration status – or, alternatively, refugee claimant status – ought to be recognized as an ‘analogous ground’ of prohibited discrimination under the Charter. This would enable claimants to argue that rules which explicitly exclude refugee claimants are directly discriminatory.

The main obstacle here is the emphasis previous case law (such as Dickson v Vuntut Gwitchin First Nation [193]) places on ‘immutability’ as a crucial consideration: a person’s immigration status is usually temporary. Yet people have limited control over their immigration status. Indeed, loss of control over one’s destiny, characteristic of the experience of forced migration, is at the heart of refugees’ vulnerability.

The Kanyinda case bears many similarities with the decision in Yao v The King, currently under appeal, where the Tax Court of Canada rejected a constitutional challenge to eligibility criteria that bar most refugee claimants from receiving the Canada Child Benefit. There, claimants argued that the exclusion disproportionately impacts persons of colour.

Looming in the background of both cases is a concern about the distribution of limited resources. The challenged provisions, and the arguments used to defend them, betray a tacit mistrust of – and perhaps even contempt for – refugee claimants. The implicit question seems to be: why should Canadians support these people without knowing whether they are ‘real’ refugees?

The cases also ask how much ‘external’ pressure can a system based on solidarity withstand? The Quebec government’s arguments highlight the strain on the subsidized childcare regime and the large influx of refugee claimants into the province in recent years. Quebec society is known for its sense of solidarity, and many of its social programs are a source of envy and inspiration. Some might find it ironic for Quebec’s impressive, though imperfect, subsidized childcare regime to be ruled unconstitutional for violating the right to gender equality, simply because it does not go quite far enough.

One might worry that such a finding would discourage governments from developing ambitious social programs altogether.

But such concerns are part of the reason why section 1 of the Charter enables governments to justify rights infringements. Whether extending eligibility to refugee claimants threatens the viability of Quebec’s subsidized childcare program ought to be considered at the justification stage.

In any event, acknowledging that excluding refugee claimants from subsidized childcare has an adverse effect based on sex would favour coherence in the law, and pave the way forward for a nuanced, intersectional analysis of disproportionate impact discrimination in future cases.