CASES TO WATCH (UPDATE):: Can a Judge Determine Acceptable Religious Attire in a Quebec, Canada Courtroom?

Guest contributor Jennifer Selby answered this two weeks ago in her earlier post on the Rania El-Alloul case in Quebec. There, she concluded that,

“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.”

In a new development, we get a glimpse into how Quebec Superior Court Justice Wilbrod Décarie’s October 3rd ruling may impact future cases. Décarie’s ruling had avoided declaring any bright-line rule as to whether religious attire is allowed in the courtroom. Selby’s updated post now explores the implications of that ruling. She forecasts that an appeal may result in a “more decisive (and perhaps divisive)” clarification.

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, Montreal, 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 that stipulates “any person appearing before the court must be suitably dressed.” El-Alloul wears a hijab, 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 entry, 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 Muslims’ interpretation of law, as well as visible practices and dress.[3]  Secondly, these debates and Marengo’s position as arbiter for the state, are increasingly influenced by awareness of other contexts’ positions on the secular. In Quebec, debates in other francophone contexts like France and Belgium, who have similarly sanctioned against hijabs and full-face veils, have had significant resonance. Still, the broader federal context and its legal protections on religion matter. In this light, Marengo’s decision countered a 2012 Canadian Supreme Court judgment written by Chief Justice Beverly McLachlin on a niqab-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 niqab.

Despite this Supreme Court ruling and 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 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; more than half the funds were allocated for a bursary at McGill University). 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. The clarification sought clearer language to protect religious signs in Canadian courtrooms, a right which until now has been bolstered more indirectly through the Charter of Rights and Freedoms.

On 3 October 2016, Quebec Superior Court Justice Wilbrod Décarie issued a new ruling stating that the Court “deeply regrets how she [El-Alloul] was treated.” Justice Décarie did not, however, issue blanket support for El-Alloul’s request for clarification (i.e. he did not specify that all religious signs are welcome in Quebec courts). Instead, following the aforementioned N.S. ruling, he proposed an ad hoc approach where the right to wear religious signs “cannot be declared in advance.” While El-Alloul shared her relief with the higher court’s criticism of Judge Marengo’s dismissal, one of her lawyers noted that he favours an appeal because Justice Décarie’s decision leaves those wearing visible religious signs “insecure before the courts.”

So, for the time being, yes, it is possible for a Quebecois provincial judge to dictate religious attire in his or her courtroom. Marengo has been publicly reprimanded for her treatment of El-Alloul, but the Quebec Superior Court makes clear that the acceptability of religious signs will be determined on a case-by-case basis, presumably to weigh sincerity of belief and freedom of religion with the secular mores of the court. Thus, given that El-Alloul’s lawyers intend to appeal Justice Décarie’s ruling, we must wait and see whether a more decisive (and perhaps divisive) clarification on the protection of religious signs emerges in Quebec and in Canada.

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 of (1) Islamic jurisprudence in the media coverage about the case, notably arguments for the necessity of the hijab to maintain proper modesty or (2) 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 niqabs “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 (in contrast to his predecessor, cited in footnote 2) who called the decision “unacceptable.”