In 2018, Ms. Kanyinda arrived in Canada claiming refugee status. While awaiting a decision on her claim, Ms. Kanyinda obtained a work permit. She applied for subsidized childcare so that she would be able to work, but was denied on the basis that she would not qualify under the law until her refugee status was officially approved. Ms. Kanyinda brought a successful judicial review, in part arguing that this law violates her section 15 Charter right to equality.  

On appeal to the Supreme Court of Canada, Quebec argues that Ms. Kanyinda did not provide enough evidence to show that the law is discriminatory to women. Despite the obvious connection between lack of childcare and women’s access to the workforce, the government argues that this section 15 claim cannot be made out without proof that the law actually impacts women disproportionately. 

Proving that a law creates a distinction (as a first step to proving discrimination) based on prohibited grounds, like sex or gender, should not require a high evidentiary burden. This threshold is met as long as a link can be drawn between the effects of the law and impact to a protected group, based on some evidence rather than intuition alone. The Court needs to be conscious of the real practical barriers litigants face when mounting constitutional challenges, and not create insurmountable roadblocks to access justice.