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Jamie Sarkonak: Chief justice says existence of Canada's border is discrimination

The Supreme Court says low-cost public daycare must be given to asylum seekers, too — and Richard Wagner wants to go further

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Anyone in the world who shows up in Canada and makes an asylum claim is entitled to free subsidized daycare if citizens get it too, said all but one judge of the Supreme Court on Friday. They framed their decision as a matter of social justice — seemingly ignorant that their words degraded the value of Canadian citizenship by extending our social safety net, which we pay for, to unvetted foreigners.

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The case came about because Quebec had excluded unvetted, unapproved asylum claimants from its already generous subsidized daycare program, which is open to citizens as well as permanent residents, work permit holders, foreign students and government-approved refugees.

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This did not go unnoticed by Bijou Cibuabua Kanyinda, a woman from the Democratic Republic of the Congo who claimed asylum in Quebec back in 2018, along with her three kids. As a mere asylum seeker, she was unable to use the program. So, she challenged it, arguing that it violated her equality rights under the Charter. Her asylum claim was approved in 2021, but the legal fight continued through the courts. And on Friday, she won.

It was not a fair proceeding from the get-go. The court welcomed a parliamentary committee’s worth of intervenors to present arguments in addition to the two parties who faced off, most of them with a clear affiliation to progressive causes. This muddied the legal dispute into a broader policy discussion tilted against the interests of Canadian citizens.

Six judges of the court ruled that Quebec’s subsidized daycare program unjustifiably discriminates against “women refugee claimants” on the basis of sex, and that the Charter requires every asylum-seeking parent in the province to be eligible. While asylum-seeking women aren’t named in the Charter, the judges said they should be protected anyway due to the rules of intersectionality.

Justice Malcolm Rowe for the most part agreed with them, and Chief Justice Richard Wagner went even further. The head of our highest court said that the Charter should include asylum claimants as a protected identity group for several reasons.

“A distinction based on refugee claimant status may violate the dignity of the members of this group,” Wagner wrote, adding that it is an immutable characteristic, just like race; that asylum seekers constitute a “historically disadvantaged group”; that they are vulnerable and marginalized; and that international law holds differential treatment based on citizenship status to be discrimination.

“This provision reinforces negative attitudes and perpetuates prejudice and stereotyping to the effect that refugee claimants are financial burdens, queue-jumpers whose claims for refugee protection are mostly bogus, and individuals who have come to take advantage of Quebec’s hospitality, generosity and social assistance,” continued the chief justice.

“Finding that (the program) is discriminatory serves not only to counter this bleak message but also to denounce and convey disapproval of such treatment of a disempowered group.”

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Indeed, if Wagner had his way, his ruling would do the opposite: by making it a constitutional requirement across Canada to provide additional citizen benefits to any asylum claimant who walks in the door, he would incentivize even more migration — particularly from disordered, low-trust countries that lack basic services. Such migrants, even if their claims are ultimately rejected, already find it worth the plane ticket to Canada because it means, for a time, getting themselves into our doctors’ offices — and their kids into our daycares and schools. This is very costly to Canadians, both in a financial and cultural sense, thus the nation’s contempt is inevitable. Expanding these entitlements would only make things worse.

And yes, egregious cases of asylum abuse abound, many of which have been covered in these pages.

The only holdout of sense was Justice Suzanne Côté, who concluded that Quebec’s daycare program was fine as is. She also set out the alarming consequences of the chief justice’s radical proposal to obliterate the state’s ability to distinguish on the basis of immigration status. Aside from affecting provincial social services, it would call into question the foundations of federal immigration law, as well as the “state’s right to make the freedom to enter and remain in Canada conditional on the immigration statuses it creates.”

In effect, Wagner is proposing to invalidate Canada’s sovereign right to regulate its borders.

But even though Wagner didn’t get his way, this decision might still take us on a roundabout path to get to his conclusion. It’s hard to see the judges limiting their logic of intersectionality; it’s likely they’ll find increasingly niche groups in need of Charter-protected rights and taxpayer-funded benefits. Any time the exclusion of female asylum seekers can be found in a piece of legislation, or disabled ones, or “racialized” ones, or LGBT ones, or (insert category) ones, that will be able to form the basis of a constitutional challenge. And, as you can see from this decision, the challenger will come before largely sympathetic ears.

More immediately, this might throw a wrench into Alberta’s plan to hold a referendum on retracting health and education access from certain categories of migrants, because the Supreme Court just said it might be unconstitutional. Ignoring the fact that the province should simply deal with the problem now if this is indeed an issue that needs addressing, rather than kicking the can down the road with an unnecessary vote, any legislation to come from this will likely end up before the courts and needing notwithstanding clause protection to survive.

Making matters worse, the Supreme Court is currently in the midst of deciding whether to limit the ability of elected governments to invoke the notwithstanding clause, which is the last democratic tool we have to push back against absurd rulings coming out of the courts. Considering how personally Wagner seems to take government disagreements with the courts, it’s not looking good for democracy. (His position is that courts are more democratic than elected governments; thus, they shan’t be questioned.)

So, what can be done? Keep pushing back. Keep demanding better from the top court. Do not allow the courts to trample on what it actually means to be a Canadian citizen. And while you’re at it, provinces, you would be smart to take back your law schools from the scholar-activist faction of the legal world, so that one day we can reverse this judicial mess.

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