Case information

Constitutional law — Freedom of religion — Right to equality — Discrimination based on religion —Moroccan kafala order — Immigration regulations — Whether Quebec Court of Appeal committed reviewable error in failing to consider best interests of child — Whether contested provisions of federal and Quebec regulations have discriminatory effect, in violation of s. 15 of Charter, on Canadian Muslims who want to welcome abandoned child — Whether federal and Quebec immigration regulations can, without reasonable justification, exclude institution recognized by public international law (New York and Hague Conventions), contrary to constitutional and international obligations of Canada and Quebec — Whether Quebec Court of Appeal erred in ruling on sincerity of religious beliefs of Dardari spouses contrary to judgment of Moroccan authorities (ministry of Islamic affairs) that have more knowledge of this matter — Whether Quebec Court of Appeal committed error in minimizing probative force and sincerity of belief of appellant Hanane Hasni on ground that she did not testify at trial — Immigration and Refugee Protection Regulations, DORS/2002-227.

Case summaries are prepared by the Office of the Registrar of the Supreme Court of Canada (Law Branch). Please note that summaries are not provided to the Judges of the Court. They are placed on the Court file and website for information purposes only.

In 2017, a court of first instance of Tangier in Morocco made an order granting the applicants Abdelaziz Dardari and Hanane Hasni, both Canadian and Moroccan citizens of the Muslim faith, the kafala of a child, that is, the taking charge of a child. The applicants then took a series of steps to be able to return to the country with the child, including an application for Canadian citizenship. That application was denied on the ground that taking charge by kafala cannot be equated with adoption under Quebec law. In the face of the refusals, the applicants went before the Quebec Superior Court, where they challenged, in particular, the constitutionality of the federal and Quebec provisions allowing a Canadian resident to sponsor a child as a member of the family class only if the child is their biological or adopted child.

The Superior Court dismissed the applications seeking to establish that the rights to freedom of religion and equality were infringed. The applicants’ efforts were not based on the need to respect a religious belief, but rather on the desire to have a child. The regulations raised had no impact on this belief. Furthermore, no evidence was provided that the regulations have a disproportionate effect on Canadian citizens of the Muslim faith or that Muslims are historically or systemically disadvantaged. The Court of Appeal dismissed the appeal; the applicants did not succeed in demonstrating that the trial judge had committed reviewable errors.