In a pretty conclusive 8-1 decision, the Supreme Court of Canada seems to have overturned not only the Quebec childcare entitlement at issue in this case, but the notion of citizenship in a much wider sense:
The SCC recently abandoned their traditional red robes for black robes more similar to those of the US Supreme Court. This is a case where the older robes would be more appropriate for other reasons.
On Friday, the Supreme Court of Canada delivered its latest stupefying ruling. According to an 8–1 majority in the case of Quebec (Attorney General) v. Kanyinda, the Charter requires the Quebec government to extend subsidized daycare benefits to refugee claimants — asylum seekers who have not yet proven the legitimacy of their claim to refugee status. Founded on a prevalent but contentious reading of constitutional equality rights, the court’s reasoning has far-reaching potential to destabilize parts of the nation’s immigration and social welfare systems.
Until last week, Quebec law granted daycare subsidies to certain categories of parents, including Canadian citizens, permanent residents, and those with approved refugee status. When Bijou Cibuabua Kanyinda, the plaintiff in this case, arrived in the province and sought asylum in 2018, she fell into none of those categories. Aided by cause lawyers, and a coterie of social justice interveners (third party interest groups who submit arguments to the court), Kanyinda argued that the exclusion of refugee claimants from this welfare scheme amounted to unconstitutional discrimination.
Remarkably, the majority of the Supreme Court not only agreed with Kanyinda that the Quebec daycare scheme violated Section 15(1) of the Charter — which provides for “the right to the equal protection and benefit of the law without discrimination” — but bypassed the Quebec legislature by “reading in” a remedy directly into the law. In other words, the court rewrote the statute to immediately grant subsidies to “all parents residing in Quebec who are refugee claimants”.
More troubling than the outcome itself, however, will be the judicial reasoning that rationalized it. Writing for the majority, Justice Andromache Karakatsanis held that the Quebec scheme created a distinction “on the basis of sex”, a proscribed ground of discrimination under Section 15. But rather than fostering a distinction between men and women, Justice Karakatsanis asserted that the scheme discriminated between “men and women refugee claimants” — even though neither group was eligible for benefits at all. Because Quebec’s exclusion of refugee claimants worsened the economic disadvantage of the female claimants, she concluded, it constituted discrimination that violated Section 15.
The court’s reasoning is convoluted, to be sure. Readers may be forgiven for struggling to understand how a ruling that extends benefits to “refugee claimants” can follow from a supposed distinction on the basis of “sex”. In fact, the judgment exposes the incoherence into which the Supreme Court’s equality rights jurisprudence has fallen.
