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Kerry Sun: The Supreme Court may have just derailed the entire welfare system

Decision granting asylum seekers access to subsidized daycare in Quebec could be used by any marginalized group to demand a constitutional right to any benefit scheme

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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.

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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.

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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.

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For more than a decade, the Supreme Court has embraced a problematic view of discrimination, which treats any law that imposes a burden on any group protected by Section 15 as presumptive discrimination. In a 2020 judgment in Fraser v. Canada (Attorney General), for instance, the court held that a law may be deemed discriminatory solely due to its “adverse effects,” regardless of the reasons or intent behind the law. Thus, in Fraser, it ruled that the RCMP had discriminated against female members who worked part-time when it tried to improve their situation by allowing them to buy back partial, but not full-time, pension credit.

But this “reductive conception of discrimination,” as one appeal judge called it, vastly inflates the meaning of equality rights and with it, the scope of judicial power to scrutinize and strike down legislation. Since almost every conceivable law, including most welfare legislation, will distribute benefits and burdens unevenly between different groups, the Supreme Court’s expansive reading of Section 15 effectively converts any act of lawmaking into an occasion for litigation.

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Applying that conception, Canadian courts have invalidated parts of a sex offender registry, questioned a regulatory requirement for teachers to pass a Grade 9 math test, and permitted lawfare on climate change policy. This expansion of judicial power stymies the exercise of political authority, undermining the ability of governments to enact measures that rely on reasoned distinctions to advance the common good.

As the latest iteration of this trend, the subversive force of the Kanyinda judgment will be difficult to resist. Brought to its logical conclusions, the court’s approach imperils all manner of government schemes that restrict benefits by immigration status. According to its reasoning, if a law worsens the disadvantage of refugee claimants who are also female — or who are of a certain race, nationality, ethnicity, religion, or other protected ground — then that law might be deemed discriminatory. While the court purported not to decide whether to enshrine “refugee claimant” as a protected characteristic under the Constitution, its judgment achieves this through the back door.

In a concurring judgment, Chief Justice Richard Wagner stated explicitly what the majority endorsed implicitly, arguing that “the Charter protects refugee claimant status as an analogous ground” to those already protected by equality rights. Even though Section 15 only protects immutable characteristics, he insisted that “migration status” was an immutable characteristic because it is outside “the control of the individual.

This standing proposal to constitutionalize rights for asylum seekers, whose claims may eventually be rejected, might very well be taken up in future cases. But as Justice Suzanne Côté, the dissenting judge, rightly argued, the state has good reason to distinguish between verified refugees and those merely claiming to be a refugee. It cannot be taken for granted that seeking asylum is itself an involuntary choice, since that would only become apparent once a refugee claim is validated.

Most concerningly, the ramifications of the Kanyinda judgment could extend beyond refugee claimants. In practice, it implies that anyone excluded from a benefits scheme may be able to assert a constitutional violation, so long as the scheme imposes greater burdens on excluded persons who have a protected characteristic, such as sex or race, than on other excluded persons. It is conceivable under Justice Karakatsanis’ reasoning, for example, that charging higher tuition fees to international students may constitute discrimination, if those fees are determined to impose greater burdens on students of one sex or race than those of another.

As Justice Côté remarked, the perverse consequence of the ruling is that it “could paradoxically discourage state initiatives aimed at reducing inequalities, because the Canadian Charter would then impose a sort of ‘all or nothing’ burden.” If no group can lawfully be excluded from a social welfare benefit, then the result may very well be that no one receives any benefits at all.

It is regrettable that this caution should find expression in a lone dissent. But the majority’s incautious attitude toward the longstanding foundations of Canada’s Constitution and immigration system is emblematic of the dominant approach to adjudication at our highest court.

It remains, at least for now, open to lawmakers to use the notwithstanding clause to quell the judiciary’s appetite for adventurism. In light of the Kanyinda judgment, the case for pre-emptive invocation of Section 33 — deploying the notwithstanding clause in advance of any court challenge — has only strengthened.

Properly understood, the notwithstanding clause is not an abdication of Charter rights, but a mechanism to allow the legislature to express its disagreement with judicial interpretations of rights, and to correct those flawed interpretations. Our elected representatives might well reason that Section 15, interpreted faithfully, does not require all benefits and burdens to be distributed equally, but merely requires that the law not impose arbitrary distinctions. Needless to say, it is hardly arbitrary to treat welfare recipients with a proven status differently from those who are still seeking to prove it. Indeed, for many years, this arbitrariness-focused interpretation of equality rights had been endorsed by the Supreme Court itself.

Defenders of the expansion of judicial power might contend that discriminatory laws can still be constitutional under Section 1, which allows for reasonable limitations on Charter rights. But if the court’s judgment offers any sign, it is that any appeal to Section 1 will face an uphill battle. It is perhaps telling that Justice Malcolm Rowe, who agreed with the majority and emphasized a “rigorous” application of Section 1, professed to see only “speculative and marginal” “beneficial effects” to excluding refugee claimants from Quebec’s welfare benefits.

In truth, the creation and maintenance of a social welfare system is not a matter of weighing empirical costs and benefits, as if one were preparing a balance sheet or tallying up the pros and cons of buying a new car. It involves a moral and political judgment about the nature of our political community, and the tailoring of the privileges and obligations that are owed to various members of the community. In a parliamentary democracy, this judgment is legitimately vested in our elected representatives. It does not lie in the judiciary whose role is to apply settled law and legal principle — not to pick winners and losers in the distribution of benefits. In losing sight of this, the Supreme Court does a disservice both to our welfare system and to the responsible exercise of judicial power.

Kerry Sun is a doctoral student at the University of Oxford and a member of the Macdonald-Laurier Institute’s Judicial Foundations Project. 

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