Intersectionality in Section 15 Discrimination Claims: Takeaways from Québec (AG) v Kanyinda

People are more than the sum of their parts and unfortunately, so is the discrimination they face. This observation was put forward by the scholar and advocate Kimberlé Crenshaw in a study addressing the discrimination faced by Black women in America and showing how it differs from merely a sum of sexism (also experienced by white women) and racism (also experienced by white men).[1] It has led to the development of the concept of “intersectionality,” a framework in which the different types of discriminations faced by an individual or group are understood as “overlapping and mutually constitutive rather that isolated and distinct.”[2]

How, if at all, does this concept play a role when considering issues of equality and discrimination under the Charter in Canada? After all, to establish whether discrimination exists, the framework set by section 15(1) relies on individual, siloed grounds—be they enumerated (race, national or ethnic origin, colour, religion, sex, age or mental or physical disability) or analogous (non-citizenship,[3] marital status,[4] sexual orientation,[5] Aboriginality-residence,[6] and non-resident status in a self-governing Indigenous community[7]) grounds. This was one of the central questions tackled by the Supreme Court of Canada in Québec (AG) v Kanyinda, 2026 SCC 7.

What happened in Kanyinda?

Ms. Kanyinda is a citizen of the Democratic Republic of Congo. She arrived in Québec in 2018 with her three young children. She immediately filed a claim for refugee protection and obtained a permit allowing her to work in Québec while her case was being adjudicated. However, she was unable to pursue employment opportunities because she was unable to secure affordable daycare for her children. Indeed, although Québec offers subsidized daycare to some parents of young children, in 2018, refugee claimants were not eligible for this service—in application of section 3 of the Reduced Contribution Regulation, CQLR, c S-4.1.1, r 1 (“RCR”).

Ms. Kanyinda turned to the courts and challenged the validity of section 3 of the RCR. Among other things, she argued the provision unjustifiably infringed section 15(1) of the Charter because its eligibility requirements created a discriminatory distinction based on sex. The Superior Court of Québec rejected her argument. But the Court of Appeal of Québec agreed that the provision discriminated against women refugee claimants and that it was not justified under section 1. On appeal, a majority of the Supreme Court of Canada held that section 3 of the RCR unjustifiably infringed section 15(1) of the Charter because it discriminates against women refugee claimants based on sex.

Intersectionality in the section 15(1) analysis according to the majority in Kanyinda

Karakatsanis J, writing for the majority,[8] agreed with the Court of Appeal of Québec that section 3 of the RCR created a discriminatory distinction on the basis of sex, which was not justified under section 1 of the Charter. The majority’s reasoning relied extensively on the concept of intersectionality. More specifically, Karakatsanis J looked at Ms. Kanyinda’s reality and claim as a woman refugee claimant, instead of considering the impact of section 3 of the RCR on women generally. To do so, Karakatsanis J linked substantive equality to intersectionality, noting that an approach based on substantive equality must acknowledge that “[p]eople in the same protected group may have very different experiences and face unique challenges based on their intersecting identities and realities — including, for example, their race, religion, ethnic background, sex, age, disability, sexual orientation, parental status, socioeconomic status, immigration status, or language abilities”.[9]

Based on this observation, Karakatsanis J found that intersectionality must inform both steps of the section 15(1) analysis. At the first step, an intersectional approach will be essential where the adverse effects are only felt by a subgroup and arise “from the nexus between a distinction that may not be rooted in an enumerated characteristic and a subgroup that must share an enumerated ground.”[10] In the case at bar, the effects of the exclusion were disproportionately felt by a subgroup of women, namely women refugee claimants.[11] At the second step, an intersectional approach can be necessary to understand a claimant group’s unique circumstances. In particular, it “enriches the analysis of discriminatory effects by highlighting these additional dimensions of disadvantage.”[12] In the case at bar, the discriminatory effects resulted from a combination of sex discrimination with circumstances unique to refugee claimants, including lower socio-economic status, poverty, social exclusion and stigmatization.[13]

Disagreement about recourse to an intersectional approach in the section 15(1) analysis

Karakatsanis J’s reliance on intersectionality was not unanimous. Notably, in concurring reasons, Rowe J warned that inviting courts to consider “intersecting identities and realities” at the first step of the section 15(1) test risked becoming “a disguised way to find discrimination on the basis of previously unrecognized analogous ground.[14] Côté J, writing for the dissent, shared this concern.[15] But their opinions otherwise diverged. While Rowe J admitted that intersecting forms of disadvantage are relevant at other stages—namely at the second step of the section 15(1) analysis and in the final balancing stage of the section 1 analysis under Oakes[16]—Côté J did not rely on this concept in any part of her analysis.

Although Rowe J expressly stated that intersectionality played no role at the first step of the section 15(1) analysis, he still found that the exclusion under section 3 of the RCR disproportionately impacted women compared to men based on evidence that focused on refugee claimants—a conclusion close to the majority’s finding that this exclusion disproportionately affected women refugee claimants.[17] In contrast, Côté J found that Ms. Kanyinda failed at the first step, and that Karakatsanis and Rowe JJ’s conclusions at that step did not put sufficient emphasis on causation but instead “rel[ied] unduly on the intersectional nature of [Ms. Kanyinda]’s claim.”[18]

I do not discuss Wagner CJ’s concurring reasons here, as he did not address the issue of intersectionality and instead based his reasons on the recognition of refugee claimant status as a new analogous ground.[19] That said, it is worth noting that the majority agreed with Wagner CJ that “refugee claimants face stereotypes, historical disadvantage, and distinct vulnerabilities in Canadian society”[20]—a consideration that played into its intersectional analysis of the circumstances faced by women refugee claimants.[21]

Key takeaways

To the best of my knowledge, Kanyinda is the first case where the Supreme Court has openly and extensively addressed the role of intersectionality in the section 15(1) analysis. Ultimately, my key takeaways from the discussion of intersectionality in Kanyinda are as follows:

• The Supreme Court found that intersectionality is a relevant consideration in dealing with allegations of discrimination under section 15(1) of the Charter.
• The majority concluded that an intersectional approach should inform the analysis at both steps of the section 15(1) analysis, because substantive equality requires that attention be paid to the specific circumstances of the claimant individual or group.
• Rowe J (concurring) and Côté J (dissenting) warned that adopting an intersectional approach at the first step of the analysis opened a pathway to find discrimination on the basis of unrecognized analogous grounds. Both insisted that the analysis at the first step should remain focused on causation, although their application of this principle to the fact of the case led to opposing conclusions.

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