Find us on Facebook
Judge Eliana Marengo has made a serious error by telling a Muslim woman that she must take off her hijab in court before her case would be heard. Her justification — that the woman was not “suitably dressed” — is wrong-headed and a troubling slippery slope.
Last week a hijab-wearing Muslim woman, Rania El-Alloul, appeared on her own in a Quebec court without counsel and applied for the return of a vehicle seized through automobile insurance board proceedings. In the first few seconds of the matter being called, she was asked by the judge why she wore a scarf on her head, to which she replied that it was because she was Muslim. The judge took a 30-minute break and when she returned she told El-Alloul that unless she took off her hijab, her case would not be heard and that the only option El-Alloul had was to ask for an adjournment so she could receive some legal advice. Although El-Alloul opposed the adjournment and conveyed to the judge that she could not afford a lawyer, the judge still adjourned the case indefinitely.
Judge Marengo did not cite any security or identification concerns when she made this decision but instead conflated the hijab with sunglasses and hats, which are routinely removed by persons entering courtrooms and stated that the same rules ought to apply to all people. She also found issue with the hijab being a religious symbol, which in her opinion was not permitted in the courtroom stating that El-Alloul was not “suitably dressed” in accordance with the regulations of court.
A hijab is not equivalent to sunglasses or a baseball cap. Muslim women who wear the hijab do so out of a sincerely held religious belief and this right is protected under the Canadian Charter of Rights and Freedoms. Indeed the Chief Justice of Canada recently held in R v NS that a secular approach that requires people “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.” Judge Marengo failed to appreciate this.
The message that this decision sends is that the courts are exclusive to people who look a certain way. If Judge Marengo’s reasoning were to hold up it would necessarily mean that Jewish men could not enter our courts wearing kippas, that Sikh men and women could not enter courts with turbans, that Christian men and woman could not wear crosses and so on. But this decision extends far beyond religious attire. It has the real potential to affect marginalized groups who do not fit a judge’s conception of “suitably dressed.” If a judge finds it unsuitable for a black person to wear his natural hair, will he be asked to leave? What if a judge preferred that female court attendees wore skirts to court in order to be suitably dressed?
There is no question that if judges were to interpret “suitable dress” in as careless a manner as this, there would undoubtedly be chaos and a degradation of Canadian values. Our courts do not and should not operate in this manner.
Every day I stand in a courtroom and represent people who cannot afford private counsel and who face many other barriers to accessing justice. What happened in Judge Marengo’s courtroom on last week was the antithesis of access to justice.
There are dozens of Muslim women who practice law in this country wearing a hijab. They are educated, leaders within their communities, and contribute greatly to Canada. If any of us were told we were not suitably dressed for court while wearing our hijabs, we would be forced to give up our careers.
I sincerely hope that Judge Marengo realizes the error in her decision, reverses her decision and offers an apology to Ms. El-Alloul.
This type of intolerance has no place in our justice system.
Amna Qureshi is a staff lawyer with Legal Aid Alberta. She wears the hijab in court every day.