Anti-Muslim sentiments are getting out of control in Canada. Last week, a Quebec judge, Eliana Marengo, refused to hear the case of Rania El-Alloul, a Canadian citizen, because she would not remove her hijab (head scarf).
The outcry was swift and broad. Even Prime Minister Stephen Harper—who just a week earlier had called it “offensive” that a Muslim woman would want to cover her face while taking the oath of citizenship—said through a spokesperson that El-Alloul should be have been allowed to testify.
The judge’s argument in the Quebec case, and Harper’s in the citizenship case, are both laughable. Freedom of (and from) religion is protected in the Charter of Rights and Freedoms. That protection is subject, of course, to reasonable limitation.
Reasonable limitation, in the opinion of the federal court, means that the person need only prove they are who they say they are. In short, according to the federal court decision that precipitated Harper’s offensive statement about offensiveness, a woman who wears the niqab (face covering veil) may do so at the citizenship ceremony provided she satisfies the designated official presiding over the ceremony of her identity.
The controversy over covering your face is at least somewhat understandable. It is culturally very different than what most of us are used to. The Supreme Court, in fact, is split on the question of allowing women to wear the niqab when testifying in court concluding that judges should neither ban it outright nor routinely allow it.
Denying someone access to justice over a head scarf, however, is downright racist.
Part of the problem in Quebec—aside from the deeply rooted conflict over reasonable accommodation—is that the regulations are very vague saying only that “Any person appearing before the court must be suitably dressed.”
And that is exactly what Marengo said, that El-Alloul was not suitably dressed, an arbitrary and disgraceful opinion.
It is a long-standing tradition in courts that hats not be worn. There is a big difference, though, between a farmer wearing a John Deere baseball cap and a religiously mandated head scarf.
The Ontario Superior Court specifies the exemption in its etiquette guidelines saying, “Hats or headwear are not permitted except for religious reasons. Please also remove your sunglasses before entering the courtroom (unless they are required due to a medical condition).”
Reasonable accommodation.
Judge Marengo is also probably going to find out that she is on the wrong side of the Supreme Court as well. In the split decision referenced above, Chief Justice Beverly McLachlin writing for the majority said, “A secular response that requires witnesses to park their religion at the courtroom door is inconsistent with the jurisprudence and Canadian tradition, and limits freedom of religion where no limit can be justified.”
Clearly, the Court is looking for balance, as long as the headgear does not interfere with the administration of justice, and as Harper said, is not covering the person’s face, what is the problem?
Another precedent setting case was a 1993 incident in the Ontario Superior Court in which a judge ordered a spectator in to remove his kufi (prayer cap). The Ontario Court of Appeal, Federal Court of Appeal and the Canadian Judicial Council ruled the judge had been wrong to do so.
Finally, it would not be a craven story of racism without a healthy dose of hypocrisy. During the proceedings Marengo referred to the scarf as both a religious emblem and a fashion accessory. Which is it?
Furthermore, she made reference to her courtroom being a secular place and a secular space. That is indeed what a courtroom should be, but that does not mean the people who are seeking justice therein must abandon their sincerely held beliefs, quite the contrary.
This is underscored by the fact that Marengo’s courtroom, and every other one in the nation, contains a Christian Bible for people to swear on. Why is that necessary if it is a secular space, why can’t everyone just solemnly affirm they will tell the truth?
My point is, by offering the choice of swearing on the Bible or solemnly affirming the courts already reasonably accommodate different beliefs, or non-beliefs. That is not treating everyone the same, so to hear this judge say that is what she was attempting to do is such a thin masking of the underlying anti-Muslim prejudice it is pathetic.
In all of this legal and political wrangling, it is easy to forget that there is a human victim here. This poor woman, a single mother, attempting to get her car back to provide for her family is denied justice, stripped of her dignity and made to feel like she is a second class citizen, by a jurist no less.
It is not just illegal, as I am sure it will be found to be, but it is hurtful and immoral. At the very least, Marengo owes this Canadian woman, and all Canadians, an apology. She should probably be removed from the bench.
