CASES TO WATCH: Can a Judge Determine Acceptable Religious Attire in a Canadian Courtroom?

Guest contributor Jennifer Selby uses the recent case of Rania El-Alloul in Quebec, Canada to situate an ongoing debate at the intersection of secularism and religious freedom. Citing her courtroom as a “secular space,” Quebec provincial court judge Eliana Marengo dismissed Rania El-Alloul from her courtroom for wearing a hijab. Selby examines the legality of this action by appealing to both text and precedence. She concludes that though previous Supreme Court decisions in Canada allow for niqabs in the courtroom, “current legal parameters allow Marengo’s decision.” El-Alloul’s situation is potentially significant for how her “case for clarification unfolds.” The case will contribute to a better understanding of what an acceptable expression of Muslim beliefs, and religion overall, is within the courtroom.


Yes, and perhaps no. A recent controversy in Quebec, Canada has ignited debate about a judge’s right to set the parameters of a so-called secular courtroom.

In February 2015 in Montreal, in a Quebec provincial court, judge Eliana Marengo barred Ms. Rania El-Alloul from her courtroom. El-Alloul appeared before the judge to request the return of her vehicle, which had been impounded when her 21-year-old son was caught driving with a suspended license. (Without the hearing, the car would be kept for a month). Of Kuwaiti origin, Ms. El-Alloul became a Canadian citizen in 2007. She is a single mother of three children and appeared in court without legal representation. In her statement rejecting El-Alloul’s case, Marengo described her courtroom as a “secular space” and appealed to a provincial legal code stipulating that “any person appearing before the court must be suitably dressed.” El-Alloul wears a ḥijāb, which for Marengo rendered her case inaudible.[1]

Marengo outlined that the rules around acceptable dress apply to everyone in her courtroom. Indeed, the judge was within her rights to determine these rules of conduct. Like other contact zones between religion and public authority, El-Alloul’s case has called the current legal parameters around religious signs into question at a moment in Quebec where head coverings have been particularly visible.[2]

In the remainder of this post, I argue that El-Alloul’s case exemplifies two trends currently shaping representations of Islam in the Canadian public sphere. Firstly, if notions of the secular are always tethered to the regulation of proper or desirable religiosity, Judge Marengo’s action shows how they have been most clearly articulated in relation to visible forms of Islam. A number of similar cases in Canada have ignited in relation to Islam.[3] Secondly, these debates and Marengo’s position as arbiter for the state, are increasingly influenced by awareness of other contexts and debates on the secular. In Quebec, debates in other francophone contexts like France and Belgium, which have similarly imposed sanctions against head coverings (ḥijābs) and full-face veils (niqābs), have had significant resonance. Still, the Canadian context and its legal protections on religion matter.

In this vein, Marengo’s decision countered a 2012 federal Canadian Supreme Court judgment written by Chief Justice Beverly McLachlin on a niqāb-wearing woman’s right to wear her headcovering in a sexual assault trial. Justice McLachlin concluded that “Canadian tradition” “balances the vital rights protecting freedom of religion and trial fairness when they conflict,” here allowing “N.S.” (as she became known, to protect her anonymity) to wear her niqāb.

Despite this Supreme Court ruling, even if current legal parameters allow Marengo’s decision, it has not been popular. El-Alloul stated that the situation left her feeling “not Canadian anymore” and “destroyed.” Her dismissal from the courtroom has also been widely condemned by politicians in Canada and Quebec,[4] as well as by many Canadians, including those who contributed more than $50,000 for an online crowdsourcing fund to help El-Alloul purchase a new car and pay for her legal fees. (The case was settled in mid-March when the vehicle was returned to her; she refused the funds.) Still, the matter is not closed. With support from a well-known human-rights lawyer, in September 2016, El-Alloul filed a complaint in Quebec Superior Court against the judge as well as a motion for clarification on religious dress in the courtroom. This clarification seeks clearer language to protect religious symbols worn by a sincerely held religious beliefs in Canadian courtrooms, a right which until now has been bolstered more indirectly through the Charter of Rights and Freedoms.

So, for the time being, yes, a Quebecois provincial judge can dictate religious attire in her courtroom. However, we must wait to see how El-Alloul’s case for clarification unfolds to see whether judges will continue to set these parameters or not.

 


Jennifer Selby is an Associate Professor in the Department of Religious Studies, as well as an affiliate member of the Department of Gender Studies, at Memorial University, Canada. Her research, teaching and supervision broadly consider Islam in contemporary France and Canada.

[1] Notably, there has been no discussion in the case or in the media coverage about it regarding Islamic jurisprudence that argues for the necessity of head scarves (hijāb) to maintain modesty or any description about the sincerity of El-Alloul’s beliefs.

[2] In 2013 a provincial opposition party proposed a ‘Charter of Secularism,’ which would have precluded all those who wore visible religious signs from receiving or dispersing public services in Quebec. In 2015, the former Canadian Prime Minister declared niqābs “rooted in a culture that is anti-women.”

[3] The 2003-2006 “Sharia” debate in the neighbouring province of Ontario is another example (see Debating Sharia: Islam, Gender Politics and Family Law Arbitration).

[4] The Quebecois Premier critiqued the decision, as did the now Prime Minister of Canada, who called the decision “unacceptable.”