Canadian legal system supports refugee welcome
Supreme Court judge says Canada is strong enough to accept migrants
OTTAWA— A Supreme Court judge says Canadians should not worry about the arrival of refugees and migrants because Canada has the legal tools to ensure human rights and Canadian democratic values are respected when different cultural identities clash.
In a wide-ranging speech to mark the 150th anniversary of Canada’s constitution, Supreme Court of Canada Justice Richard Wagner offered a candid look at how identity politics have played out in the courts since the Charter of Rights’ equality guarantees took effect in 1985.
He ended his remarks on an optimistic note, saying judges understand questions of personal and group identity better now and analyze claims of discrimination in a way that aims to ensure “substantive equality.”
Wagner said the notions of identity, human dignity and democratic values permeate the charter and “lay the foundations for looking beyond our own borders. “We can welcome refugees and migrants with the confidence that our society is able not only to manage our differences, but to thrive on them,” Wagner said.
Speaking to reporters later, Wagner acknowledged that, while his speech was delivered to a legal and academic audience, there was a message for Canadians concerned about the influx of refugees and migrants.
“We should, I think, welcome all those people and we should be willing to accommodate them and not change them,” he said.
“People should not be afraid of having migrants and refugees in their own countries. I think we’re strong enough and . . . we have strong moral values, and one of those values is the respect for human dignity. And, if we take our role seriously, we’ll look, we’ll adopt the perspective of the other, and it could only, I think, as far as I’m concerned, grow society much better in the future.”
Asked if that means there should be room for face veils and other individual expressions of religious identity, Wagner declined to answer, saying: “I don’t know if those cases will come before the court, so I don’t want to comment.”
Wagner holds one of the three High Court seats reserved for Quebec. Quebec’s legislature is now studying a bill to require “religious neutrality” of those who deliver or receive public services, amid calls to ditch the bill in the wake of the slaying of six Muslims at a Quebec City mosque.
Wagner said judges have an “obligation” to try to understand the perspective of a person who says their equality rights are breached, but he added “that doesn’t mean that the claimant is right . . . that doesn’t mean that I would adopt his way, or his reasoning, or his opinion, or his end result.”
In his speech, Wagner admitted early approaches to how judges analyzed discrimination did not stand up to the task. He said charter interpretation is “a work in progress,” but said over the past 150 years, “the constitution has enabled us to navigate difficult questions of identity.
“Personal and group characteristics are the starting point of charter equality jurisprudence, but identity is not about labels; it is a shorthand for how people see themselves, how others see them and how those two things interact in people’s lives.”
Wagner said the Supreme Court looks to the context and experiences of a person claiming discrimination and seeks to understand the person’s perspective, which is an especially important consideration in cases of aboriginal law or where there are overlapping characteristics of a person’s identity that influence how they experience discrimination.
Wagner said the experience of a woman who is part of a visible minority can be totally different from that of a young man who has the same characteristics. “If one of the two is not a citizen, or has a different sexual orientation, their experience could be even more different.”
“When the court eventually faces a question touching on transgender identity, these two propositions will provide essential frames of reference: that identity is not fixed, but changing, and that identity is not innate, but contextual,” he said.
Wagner predicted that, although the principle of “dignity” fell out of favour in judicial analyses of equality claims, it would find new traction in future charter litigation. It is a crucial consideration when judges weigh whether a rights violation is reasonable and justified.
“Equality infringements ought to be increasingly difficult to justify to the extent that it strikes at the heart of someone’s individual or group identity and, with it, their recognition as full participants in Canada’s ongoing democratic dialogue,” he said.
University of Ottawa law professor Errol Mendes said Wagner’s speech would please equality-seeking groups on one hand, but that Wagner also emphasized “democratic values” and “substantive” equality over any superficial concept of equality.
“We should be willing to accommodate them and not change them.” RICHARD WAGNER SUPREME COURT JUDGE