On Feb. 24, a Canadian citizen attended a courthouse in Montreal seeking to have her impounded vehicle released. What should have been a routine hearing on a mundane issue turned into a judicial fiasco that has brought the administration of justice into disrepute.
Before even allowing Rania El-Alloul to address the court on the merits, Judge Eliana Marengo told her she would not hear her case. Why? Because El-Alloul was wearing a hijab, the headscarf warn by thousands of practising Muslim Canadians and had the gall to refuse to remove it as a condition of having her day in court.
According to a publicly available audio recording of the hearing obtained by the Canadian Broadcasting Corp., Marengo informed the bewildered El-Alloul that “in my opinion, the courtroom is a secular place and a secular space” and “there are no religious symbols in this room, not on the walls and not on the persons.”
Citing s. 13 of the regulations of the Court of Quebec, which provides that anyone “appearing before the court must be suitably dressed,” Marengo informed El-Alloul that she was not suitably dressed and “I will therefore not hear you if you are wearing a scarf on your head, just as I would not allow a person to appear before me wearing a hat or sunglasses on his or her head or any other garment not suitable for a court proceeding.” She gave El-Alloul the opportunity to remove the hijab or seek an adjournment in order to consult a lawyer.
When she informed the court that she would not remove the hijab and did not have money for legal counsel as a separated mother of three on welfare, Marengo dismissed her and adjourned the matter indefinitely.
El-Alloul, a naturalized Canadian who proudly wore her hijab before another judge at her citizenship ceremony years ago, has stated that what happened before Marengo made her “feel afraid” and that she no longer “feels Canadian.”
The Canadian Charter of Rights and Freedoms provides in its preamble that “Canada is founded upon principles that recognize the supremacy of God and the rule of law.” The El-Alloul case gives us reason to reflect on the meaning of these principles in a free and democratic society. On the one hand, the “supremacy of God” would suggest we are to accord at least some regard to the divine in how we interpret our rights and freedoms, including the rules of court that govern access to justice. But huge questions remain. Whose God are we to give regard to? And how do we square such regard with the multicultural character of Canada, itself a constitutional principle under the Charter?
For staunch secularists like me, any reference to God in the Constitution is problematic, not least because of the potential harm it can do to the rights of minorities, including atheists. Perhaps this is why there is no widespread agreement on the meaning of the Charter reference to the supremacy of God. Nevertheless, the reference remains and, as such, casts some doubt over the invocation by Marengo of her courtroom’s secular character as a reason to bar a fellow Canadian from access to it. That the proximate justification for denying access related to El-Alloul’s religiously ordained article of clothing was ironic in more ways than one. The coat of arms of the Court of Quebec actually bears a Tudor crown clearly adorned with two Christian crucifixes, and the Quebec flag offers a more than conspicuous display of the same religious symbol for anyone who cares to see it.
The more substantive principle in the preamble of the Charter, namely the rule of law, is of far greater import.
Among other things, the rule of law requires equality of all before the law, including the judicial branch of government. In addition, the law must not be arbitrarily applied, particularly in a manner inconsistent with fundamental rights and freedoms, such as the right to freedom of religion. As an independent member of the judiciary, it is true that Marengo is free to interpret the law as she sees fit and that the law in this case makes it clear that those who come before her must be “suitably dressed.” But for her to have equated an otherwise innocuous article of religious clothing, like the hijab, with fashion accessories such as a hat or sunglasses belies all reason.
Far from an attempt to demonstrate equality in the treatment of those who come before her, what Marengo’s ruling reveals is a not-so-hidden attempt to use the law to uphold long-standing inequalities for religious minorities. And this comes at a time when Islamophobia has become more than a growing concern in Canada.
There is a difference between rule of law and rule by law. Are we to expect the court would deny access to justice to those who wear religious clothing that does not impede identification of the wearer — such as a Jewish kippah, a Sikh turban or a Catholic habit — merely because of their attire? That would seem to run counter to relevant rulings of the Supreme Court of Canada on freedom of religion, decisions we would expect Marengo to be familiar with. In a 2004 case that came out of the Quebec courts, Syndicat Northwest v. Amselem, the Supreme Court held that freedom of religion is triggered when a claimant demonstrates he or she sincerely believes in a practice or belief that has a nexus with religion and that an infringement of a person’s freedom of religion occurs where there has been non-trivial interference with the implicated right, the exercise of which would not potentially cause harm to or interfere with the rights of others.
In this case, there is little question that El-Alloul wore her hijab as part of her sincere belief in her religion. When asked by Marengo why she wore the hijab, she professed it was because she is a Muslim. Likewise, there can be no question that the use of a vague law on dress code and decorum to bar people from having recourse to a court of law for wearing a religiously ordained article of clothing constitutes a non-trivial interference with their exercise of their freedom of religion.
Finally, it would be hard to argue, particularly in view of the equality rights codified in s. 15, that allowing El-Alloul to petition a court of law for the early return of her impounded vehicle while wearing her hijab would harm any other person’s rights in a manner inconsistent with the Charter.
The manner in which a democracy protects the rights of its minorities is the measure of how truly free and enlightened it is. If allowed to stand, the ruling of the Court of Quebec in the El-Alloul case will be a stain on Canada’s proud history and multicultural fabric.
Ardi Imseis is a member of the Ontario and Alberta bars and a former sessional lecturer at the University of Alberta Faculty of Law. Following a 12-year career with the United Nations, he is now pursuing a doctorate at the University of Cambridge. He’s available by e-mail at email@example.com.