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Prejudice in the court

Winnipeg Free Press by Karen Busby 3 March 2015

What explains Quebec Judge Eliana Marengo’s decision last week to refuse to hear Rania El-Alloul’s case on the ground that the headscarf worn by this Muslim woman was not “suitable” attire in a courtroom? El-Alloul was trying to get her car back after her son was stopped driving it when his licence was suspended.

Marengo’s decision cannot be justified on the ground that courts are purely secular institutions that must eschew all religious symbolism.

Most witnesses still swear an oath on a Bible, although increasingly other religious symbols, such as an eagle feather, are also used.

It is hard to imagine a judge telling a Catholic nun or Hutterite woman that she cannot testify because she is wearing a habit or a bonnet. Jewish and Sikh men have not faced challenges about the suitability of wearing the yarmulkes and turbans in court. The Supreme Court of Canada has been clear that witnesses are not required to park their religion at the courtroom door.

Judges are responsible for ensuring decorum in their courtrooms. Judges can prevent witnesses from wearing message T-shirts or gang affiliation markers. Lawyers have been chastised for wearing jeans and revealing sweaters. Most judges would require witnesses to remove baseball caps before testifying because, by current Western norms, wearing a cap indoors is a sign of disrespect. (In an earlier age, women were regarded as loose if they went hatless in public.) But as El-Alloul was neither attempting to subvert justice or show disrespect for the judicial system by wearing a headscarf, Marengo’s decision could not be based on maintaining decorum.

When I was a law student in the late 1970s, women lawyers were required to wear skirts or dresses in court. Thankfully, that norm fell by the wayside in the next decade. Perhaps Marengo’s decision is an attempt to free El-Alloul and other Muslim women from the oppressive forces pressuring them to wear headscarves. The problem with this argument is that research demonstrates that almost without exception Muslim women wear the hijab as a matter of personal choice; no one forces them into the practice. They don’t need to be saved by well-meaning judges or anyone else.

Witnesses cannot dress in ways that interfere with judges’ ability to assess demeanour. Thus they cannot wear sunglasses or face masks, unless, of course, there is some good reason to do so. Witnesses who are hypersensitive to light or healing from a burn injury would not be required to remove assistive or healing devices. The Supreme Court of Canada has already held that Muslim women can testify in court even with their faces covered unless this covering unfairly impinges on fair trial rights. This unfairness may occur, for example, if identity or credibility were issues. But as El-Alloul’s face was uncovered, these issues were not in play.

Canadian and Quebec jurisprudence has a long tradition of requiring state institutions and actors to accommodate sincerely held religious beliefs in so far as is possible. Indeed, as far back as the 1760 Articles of Capitulation signed in Montréal, the English Protestants agreed to respect the religious practices of the French Catholics. The Canadian approach for the last 60 years to potential conflicts between freedom of religion and other values has been to respect the individual’s religious beliefs and accommodate if at all possible. Perhaps Marengo’s decision was motivated by a rejection of our now Charter-protected right to religious accommodation. As a lower court judge, it is not for her to change this jurisprudence.

Islamaphobia is on the rise in Canada. Some Canadian politicians pander to this fear through legislative agendas, other policy developments and public statements. The federal government, for example, has introduced the provocatively named Zero Tolerance for Barbaric Cultural Practices Act and its policies on headscarf-wearing women and citizenship oath-taking are under challenge. Respected Muslim leader, Shahina Saddiqui, was unfairly accused of consorting with terrorists by a Canadian senator last week.

We should expect our leaders — judges and politicians — to embrace religious accommodation and to name and shame those who are motivated by religious prejudices. It is troubling that instead we are seeing decisions based on these very prejudices. There is no other explanation for Marengo’s decision.

Karen Busby is a professor of law at the University of Manitoba and director of the Centre for Human Rights Research.