Quebec will have one last chance to argue that it is right to prevent asylum seekers with work permits from having access to subsidized childcare services.
The Supreme Court announced Thursday that it agreed to hear the appeal request filed by the Attorney General of Quebec.
This decision by the highest court is hardly surprising since it is a complex question which led first the Superior Court and then the Court of Appeal to rule in favor of the plaintiff in the file, Bijou Cibuabua Kanyinda, but for completely different reasons.
Mme Kanyinda, originally from the Democratic Republic of Congo, entered Quebec via Roxham Road — a crossing point that is now closed — with her three children in October 2018 and submitted an asylum application. Before obtaining refugee status, she had received a work permit and was refused a place in subsidized daycare three times because the Reduced Contribution Regulation (RCR) reserves access to this service for people whose refugee status is recognized by Ottawa, and not to those who are awaiting the federal decision.
Quebec rejected twice
In May 2022, Judge Marc St-Pierre, of the Superior Court, ruled in favor of the complainant because, according to him, the Regulation had been made “without legislative authorization”. The magistrate considered in fact that the Educational Childcare Act (LSGEE) “does not expressly provide for such regulatory power” and, therefore, that this regulation was inoperative.
Judge St-Pierre, however, did not agree with the complainant who alleged that she was a victim of discrimination, emphasizing that there was nothing to determine in what proportion women seeking asylum would assume the additional costs of caring for their children.
Last February, the decision of the Court of Appeal, signed by Judge Julie Dutil, considered, on the contrary, that Quebec did indeed have the power to adopt such a regulation, but the three judges had also concluded unanimously that this regulation was discriminatory against women and therefore contravened section 15 of the Canadian Charter of Rights and Freedoms.
Disproportionate effect on women
Mme Kanyinda had argued, with the help of scientific data and the testimony of an expert, that if the regulation does not directly target women, “it has a disproportionate impact on them [qui] makes it discriminatory with a detrimental effect since women disproportionately assume, alone or as a couple, the obligations relating to the custody and care of children.
The three judges of the Court of Appeal thus agreed with him, explaining that Judge St-Pierre “could not reduce his analysis to the respective share of men and women in the payment of childcare costs”. On the contrary, it was written, “the exclusion resulting [du règlement] creates or contributes to a disproportionate effect on the group of women seeking asylum.”
Judge Dutil went further, going beyond the case of Mme Kanyinda, writing that “women experience a historical disadvantage in the workplace due to the fact that they disproportionately shoulder the responsibilities of childcare and care.” The Supreme Court has also recognized this fact on numerous occasions. The result is that women have less participation than men in the labor market. The fact that asylum seekers are, on this basis alone, ineligible for the reduced contribution for subsidized child care places clearly has a disproportionate effect on women in this group. »
The regulation, she concluded, “reinforces and perpetuates the historical disadvantage experienced by women who wish to participate in the labor market. The distinction it creates by excluding people seeking asylum therefore constitutes discrimination with a detrimental effect based on sex within the meaning of section 15 of the Canadian Charter. »
A sufficient link with Quebec?
The government lawyer had argued in particular that the legislator’s objective in excluding the applicants was to “give financial assistance to people who have a sufficient link with Quebec”. He added that the State cannot take for granted that a person who requests asylum will stay in Quebec.
However, the Court of Appeal replied that temporary workers, foreign students and even holders of temporary residence permits are entitled to reduced contributions. “This last case,” she wrote, “is particularly striking since this type of permit is granted in exceptional circumstances in order to allow a person to remain in Canada despite being inadmissible.” […]. This status is temporary and revocable at any time. »
The stage is therefore set for the highest court to clarify this situation once and for all.