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.