Does excluding refugee claimants from access to subsidized childcare violate the right to equality? In Quebec v Kanyinda (2026 SCC 7), a majority of the Supreme Court of Canada (SCC) concluded the exclusion did discriminate based on sex given its disproportionate impact on women refugee claimants.

Fleeing to Quebec, Canada in 2018, Ms Bijou Kanyinda waited over two years for her refugee claim to be processed and ultimately approved by the federal government. During that period, she was denied access to the province’s subsidized childcare program pursuant to s 3 of Quebec’s Reduced Contribution Regulation, made under the Educational Childcare Act. The provision deems eligible eight categories of parents who reside in Quebec, including Canadian citizens, permanent residents and certain types of temporary immigrants – but not asylum seekers whose claim has yet to be determined.

Ms Kanyinda argued the provision breached her right to be free from discrimination based on sex, citizenship and a new analogous ground, namely immigration status or refugee claimant status, under s 15(1) of the Canadian Charter of Rights and Freedoms – Canada’s constitutional equality provision. In the SCC, eight of the nine judges found an unjustified violation of the right to equality, though they reached that conclusion through different analytical pathways.

Writing for five of her colleagues, Justice Karakatsanis decided the case on the sex discrimination ground, applying the previously established two-step test for assessing violations of s 15(1). Under step 1, she found that the impugned provision had a disproportionate impact on refugee claimant women and thus created, in its effect, a distinction based on sex. Under step 2, she concluded that denying women refugee claimants the benefit of subsidized childcare reinforced, perpetuated and exacerbated their disadvantage in myriads of ways. Turning to justification under s 1 of the Charter, Justice Karakatsanis found that the exclusion of refugee claimants was not rationally connected with the Quebec government’s stated objective of ‘limiting daycare subsidies to people with a sufficient link to Quebec’. By way of remedy, the majority ordered ‘reading in’ s 3 of the Regulation the eligibility of all refugee claimants to subsidized daycare.

In concurring reasons, Justice Rowe also found unjustified sex discrimination, despite providing more leeway to the government in several aspects of the analysis. Meanwhile, Chief Justice Wagner, who concurred in the result, felt the case could be dealt with in a more straightforward manner by finding unjustified discrimination based on refugee claimant status, which he would have recognized as an analogous ground of prohibited discrimination under s 15(1). His reasons echo and amplify the majority’s acknowledgement that the law plays into harmful stereotypes about asylum seekers. Justice Côté disagreed with her colleagues on just about every issue. While her reasons betray an arguably poorer understanding of the refugee experience, they show greater concern for the system’s sustainability, and through her insistence that the government has not ‘caused’ the adverse effects complained of and must be allowed to tackle a problem gradually, they convey deeper respect for Quebec’s efforts in promoting gender equality via an overall robust – albeit imperfect – subsidized daycare program, one that has long been a source of envy and inspiration in other Canadian provinces.

Three points stand out from the majority decision.

First is the emphasis the majority places on the adoption of an intersectional lens, insisting on considering the claimant group’s ‘intersecting identities and realities’. While the majority states that an intersectional approach to s 15 is nothing new, the manner in which it is integrated in every step of the analysis is remarkable.

Second is how little room the majority gives to arguments relating to incrementalism when determining whether the right to equality had been infringed,  insisting that the ameliorative character of a program does not shield it from s 15(1) scrutiny.

The final point is the majority’s preference for dealing with the case as an allegation of indirect sex-based discrimination rather than direct discrimination on an as-of-yet unrecognized analogous ground, namely refugee claimant status. This inclination is arguably a testament to the flexibility of the consolidated test applicable to both direct and indirect discrimination under s 15(1) and the strong protection the Charter offers against adverse effects discrimination.

The majority’s commitment to detecting insidious discrimination against women and its open-eyed consideration of the full context of the claimant group offer something to celebrate. Less encouraging is the political discourse immediately turning to the Charter’s ‘notwithstanding clause’ as a means of effectively bypassing the Court’s remedy. This carefully reasoned decision should instead prompt the government to bolster the sustainability of its program. More inclusive access to affordable childcare immensely benefits children and those responsible for them – in fact, it benefits all of society.