Tag Archives: Federal Court

#SuitablyDressed: Rania El-Alloul, Hijabs, and Charter Rights in Canada’s Courtrooms

For Immediate Release (Toronto ON, Mar 16, 2015):

The Canadian Association of Muslim Women in Law (CAMWL) stands in solidarity with Rania El-Alloul, a Muslim woman who was denied her day in court simply because she wears a headscarf.

On February 24, 2015, Ms. El-Alloul appeared before Judge Eliana Marengo seeking the return of her impounded car (Ms. El-Alloul had not been driving the car when it was impounded). Judge Marengo began the proceedings by asking Ms. El-Alloul why she was wearing a headscarf. Ms. El-Alloul explained that as a Muslim, she had been wearing headscarves for years, including when she swore her Oath of Allegiance to Canada. Judge Marengo responded, “I will not hear you.” She stated Ms. El-Alloul’s hijab was inappropriate attire for a court proceeding.

Ms. El-Alloul declined to unveil. Judge Marengo told Ms. El-Alloul she could either remove her headscarf or ask for a postponement in order to consult a lawyer. Ms. El-Alloul explained she relies on social assistance and cannot afford a lawyer. Judge Marengo adjourned the case indefinitely.

Without a ruling, Ms. El-Alloul, a single mother of three, continues to wait for her car.

Suitable Attire and the Charter

Judge Marengo’s actions are a clear violation of Canadian law.

In refusing to hear Ms. El-Alloul’s case, Judge Marengo cited Article 13 of the Regulations of the Court of Québec, which provides:

Any person appearing before the court must be suitably dressed.

Judge Marengo stated that Ms. El-Alloul’s hijab, because it is a religious symbol, was not suitable attire for a secular courtroom.  Her underlying analysis appears to have conflated two unrelated issues: suitable attire (as captured by Article 13) and courtroom secularity.

What Judge Marengo’s analysis fails to appreciate is that both arguments for prohibiting the hijab must still abide by the Canadian Charter of Rights and Freedoms.

While Article 13 can properly be understood to be referring to professional attire, the Charter begins:

Whereas Canada is founded upon principles that recognize the supremacy of God and the rule of law.

This attentiveness to “the supremacy of God” provides some groundwork to Section 2 of the Charter, which guarantees the right of freedom of religion, thought, belief, opinion and expression. As such, the Charter protects the right to hold and express one’s beliefs. Canadian courts routinely accommodate diverse religious and spiritual belief systems, for example by providing litigants with holy books and symbols (such as sacred eagle feathers) of choice with which to to make their oaths. This guarantee is subject only to demonstrably justified reasonable limits. To the rudimentary extent that it was articulated, Judge Marengo’s rationale for denying a hijab-wearing woman access to justice does not constitute a reasonable limit.

Section 15 of the Charter enshrines the right to equality, explicitly prohibiting discrimination on the basis of religion and sex. In refusing to hear Ms. El-Alloul’s case because she is a Muslim woman who wears hijab, Judge Marengo discriminated against Ms. El-Alloul on the basis of both her religion and her sex.

Section 27 of the Charter further provides that the Charter itself must be interpreted in a manner consistent with the preservation and enhancement of the multicultural heritage of Canadians. This bears out the broader social goal of Sections 2 and 5: namely, the acknowledgement of and meaningful respect for Canada’s heterogeneity.

In short, the normative secularity of Canadian courts does not and cannot negate the fundamental Charter rights of litigants in Canada to wear, free of discrimination, religious symbols, including Sikh turbans, Jewish kippas, Christian nuns’ habits, or Muslim veils.

Suitable Attire in Canadian Courtrooms

Judge Marengo also overlooked clear Canadian case law.

By way of example, the Ontario Court of Appeal held in 1998 in R v Laws that the Ontario Superior Court of Justice had been wrong to exclude a Black Muslim man from the courtroom for wearing a religious hat. The OCA ruled that the original decision would incorrectly suggest only dominant religious communities are protected by the Charter.

In a landmark decision on freedom of religion, the Supreme Court of Canada confirmed in 2004 in Syndicat Northcrest v. Amselem that the legal test to determine whether or not a practice is protected as a religious freedom under the Charter is whether the practice is “sincerely held” by the subject, irrespective of whether the practice is required by official religious dogma or conforms with the position of religious officials.

Most recently in 2012, the Supreme Court considered the specific issue of the suitability of Muslim women’s veils, when it heard R v NS, in which a complainant in a sex-assault trial sought to wear a niqab while testifying. Writing for the majority, Chief Justice Beverley McLachlin stated that:

A secular response that requires witnesses 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.

In light of these cases, Judge Marengo’s action stands out as an aberration squarely at odds with Canadian law.

Complaint Process

A spokesperson for the Chief judge of the Quebec court told media that it is up to the judge to apply or interpret the law the way they see it.

While judges cannot be brought before human rights commissions, Ms. El-Alloul can file a complaint with the Conseil de la magistrature du Québec, which is mandated to examine complaints related to the conduct of judges. The council can issue a reprimand or recommend a judge’s removal.

The National Council of Canadian Muslims is assisting  Ms. El-Alloul with exploring her complaint options.

A complaint has also been filed by Montreal resident Jean-Pierre Lussier, who does not know Ms. El-Alloul. Mr. Lussier noted in his complaint that Judge Marengo’s decision has been decried by many citizens, politicians and groups across Canada.

Ms. El-Alloul’s case resembles that of Tomee Sojourner, who filed a complaint to the Conseil de la justice administrative after Quebec Rental Board Judge Luce De Palma, despite repeated corrections, persistently referred to Ms. Sojourner as a man, eventually suspending the hearing. The council rejected Ms. Sojourner’s complaint of judicial bias and discriminatory conduct. In 2014, Quebec’s Superior Court held that both Judge De Palma and the Council had failed to acknowledge the intersectionality of Ms. Sojourner’s multifaceted identity as a Black lesbian woman and ordered the council to rehear Ms. Sojourner’s complaint. Ms. Sojourner’s case continues before the Administrative Judicial Council and the Superior Court.

Ms. Sojourner’s case marked the first time a Quebec court clearly addressed the legal notion of intersectionality (i.e. intersecting discrimination), a principle already recognised by the Supreme Court of Canada. CAMWL hopes that the council in Ms. El-Alloul’s case will be similarly attentive to the intersectional issues at play in Judge Marengo’s refusal to hear Ms. El-Alloul because of Ms. El-Alloul’s sex and religion.

Going Forward

There has been an outpouring of support from across the country and abroad for Ms. El-Alloul. Supporters (none of whom know Ms. El-Alloul) in Vancouver, Toronto, and California had independently set up two separate crowdfunding campaigns to cover the costs of a new car and legal expenses, respectively, with the former collecting $20,000 within a single day. Ms. El-Alloul recently stated that she would not accept the donations and would like to see them instead going towards “helping those whose rights have been forfeited and stories left untold.”

CAMWL is heartened by this show of support, especially given recent political and legal developments that have disproportionately targeted Muslims in Canada, such as the federal government’s comments about women who wear niqabs, Bill C-51, and a longstanding populist fascination with interrogating Muslim women’s sartorial choices. These reductive and often explicitly exclusionary views perpetuate misogyny and Islamophobia, inside and outside courtrooms.

Moreover, the access-to-justice implications of this story are gravely concerning: a single mother living in poverty turned to a Canadian court to ensure her mobility so that she could care for her children, and was roundly evicted from the legal arena. Judge Marengo’s decision to evict a low-income woman from her courtroom is one that furthers the feminisation of poverty in Canada, which the Supreme Court identified in 1992 as an “entrenched social phenomenon.” That Judge Marengo evicted a woman who is visibly Muslim also contributes to the racialisation of poverty in Canada. The intersection of these vulnerabilities is deeply concerning for all who are committed to ensuring fair and equitable access to justice and resources in Canada.

Ms. El-Alloul has asked, “I am going to the court for the law. But if the court didn’t listen to me, where will I go? What’s left?”

CAMWL stands with Ms. El-Alloul and her many supporters in calling on the judicial system to answer for Judge Marengo’s error. As we are a collective of Muslim women studying, practicing and teaching law in Canada, we are grateful for Ms. El-Alloul’s bravery and dignity in sharing her story, her discontents, and her strength with her peers. It has opened her up to a great deal of negative backlash. We stand with Ms. El-Alloul and marginalised people across Canada in working together to chart stronger and more meaningful visions of the law and of justice.

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Media Contacts:

Thamina Jaferi: tjaferi@gmail.com
Canadian Association of Muslim Women in Law: camwlaw@gmail.com

Further Reading:

Last updated Mon, Mar 16, 2015 at 1PM.


Everything You Need to Know About Canada’s Niqab Ban (and its Appeal)

For Immediate Release (Toronto, ON, Feb 24, 2015): The Canadian Association of Muslim Women in Law (CAMWL) is dismayed that the Conservative government will be appealing the Federal Court’s decision to strike down (effective immediately) the federal ban that prohibited citizenship candidates from wearing face coverings while taking their citizenship oaths. The Conservatives have stated that this ban is specifically meant to target Muslim women who wear niqabs. The ban and this appeal demonstrate a crass Conservative politic of capitalizing on anti-Muslim xenophobia to score populist support.

The ban was introduced in 2011 by Jason Kenney, then-Minister of Citizenship and Immigration, now Minister of National Defence and Minister for Multiculturalism. Mr. Kenney, his successor, Christopher Alexander, and Prime Minister Stephen Harper, have sought to justify the ban by that claiming that niqabs – and, by association, the women who wear them – are “offensive.”

The ban was challenged in court in 2014 by Zunera Ishaq. Ms. Ishaq, a former high school teacher, had passed all the requirements of the citizenship process, including the citizenship test; however, she was prohibited from taking her citizenship oath, because she wears a niqab. The oath would have been the final step in Ms. Ishaq’s becoming a Canadian citizen.

Photo of Zunera Ishaq by J.P. Moczulski for the National Post.

Photo of Zunera Ishaq by J.P. Moczulski for the National Post.

The case was heard by Federal Court Justice Keith M. Boswell. On Feb 6, 2015, he held the ban was unlawful, because it violated the government’s own regulations, which require that citizenship judges administer the oath “with dignity and solemnity, allowing the greatest possible freedom in the religious solemnization or the solemn affirmation thereof.” Justice Boswell held that the ban made this impossible, as it required certain candidates to “violate or renounce a basic tenet of their religion.” Here, he relied on internal Citizenship and Immigration (CIC) emails, in which one staffer, noting hand-written instructions from Mr. Kenney, stated: “the Minister would like this [ban] done, regardless of whether there is a legislative base and … he [Kenney] will use his prerogative to make policy change.”

Under the Citizenship Act, the only proof required of oath-taking is the candidate’s signature on their Oath of Citizenship form. Justice Boswell observed that “any requirement that a candidate for citizenship actually be seen taking the oath would make it impossible not just for a niqab-wearing woman to obtain citizenship, but also for a mute person or a silent monk.”

Mr. Alexander has stated that the Conservatives will be appealing the “court decision allowing people to wear the hijab while taking the oath.” This would suggest the Conservatives seek to expand the reach of the ban from the small handful of Muslim women in Canada who wear facial veils (niqabs) to the vastly greater number of Muslim women who wear headscarves (hijabs).

In the alternative, it may be that Mr. Alexander does not know the difference between hijabs and niqabs, even as he seeks to regulate them.

The hijab reference also recalls the Conservatives’ 2011 “oath reaffirmation” ceremony, staged for the now-defunct Sun TV, where one CIC bureaucrat posed in a hijab. The Conservatives failed to disclose to the public that none of the bureaucrats were actually new Canadians.

Photo of staged Conservative citizenship reaffirmation ceremony. Frame grab by Sun Media News.

Photo of staged 2011 Conservative citizenship reaffirmation ceremony. Frame grab by Sun Media News.

The Conservative government claims that its ban “protects women from violence.” Yet the government has put forward no evidence that women who wear niqabs, by virtue of wearing them, need protection from violence. The government has also failed to put forth evidence that banning niqab-wearing women from taking citizenship oaths would achieve their stated outcome.

Rather, the Federal Court noted: “If [Ms. Ishaq] is opposed to baring her face, then the [government] says that she should just accept the consequences of not becoming a citizen.” When structural and systemic violence against women is a real and pressing issue in Canada, the consequences of being denied citizenship – especially for women living in poverty and/or with precarious immigration status – include diminished access to essential social services and the heightened threat of deportation.

The Conservatives are using Ms. Ishaq’s immigration status to suggest they care about violence against women. Yet they have rejected calls for action into the crisis of thousands of missing and murdered Indigenous women in Canada, declaring that violence “not a priority.” The selectivity of these speaking points about women’s rights demonstrates the Conservatives’ opportunistic approach to gendered violence. Indeed, this double-speak is itself violent.

The government’s decision to appeal Justice Boswell’s ruling must also be situated against the broader affronts it has made to citizenship: Canadian citizenship is becoming harder to get and easier to lose. The Conservatives amended the Citizenship Act in 2014 to grant the Minister of Citizenship and Immigration unprecedented discretionary powers to revoke and deny citizenship, while making it harder for Canadians to appeal those decisions. The amendments specifically target dual nationals, naturalized Canadians, and the descendants of immigrants, thereby creating a two-tiered and arguably racialized system of citizenship.

CAMWL also notes that this appeal is occurring against the backdrop of Bill C-51, the so-called “anti-terror” bill, which would, among other things, chill free speech and dissolve privacy rights in the name of eradicating “extremist” views. Critics have already noted this bill’s disproportionate and arguably targeted impact on Indigenous communities, environmental activists, dissidents, and Muslims. Bill C-51’s binaristic approach to “mainstream” versus “extremist” values reflects a fixation with, among other things, policing Muslims’ diverse and often divergent religious, cultural, and political practices. The ban and this appeal demonstrate the government’s particular preoccupation with policing how Muslim women dress.

The Islamophobic hysteria that has helped sustain measures such as the “anti-terror” bill belies the arguments about discrimination the government made in Ms. Ishaq’s case. There, the government conceded that the niqab ban affects Muslim women in particular, but contended that that distinction was not discriminatory, claiming “there is no proof of any pre-existing disadvantage, stereotype or prejudice that is perpetuated by requiring [Ms. Ishaq] to show her face while she takes the citizenship oath.” Under this patchwork regime of repression and regression, citizenship is becoming an increasingly limited and an increasingly precarious privilege, one extended increasingly rarely to racialized people, including Muslim women.

CAMWL calls for a meaningful commitment to justice and equality. This ban provokes, exploits, and sustains hate and fear. Though it is specifically Muslim women who lie at the cross-hairs of this particular federal policy, CAMWL stands with diverse communities from across Canada in calling for an end to the government’s practice of fostering a political culture of precarity and exclusion through the demonization of marginalized and minority groups. This is not the first time that the federal government has sought to exclude racialized people from the nation, nor are Muslims the first group in Canada to be targeted by such exclusionary practices. These policies and this politic must not stand – not for Muslim women who wear niqab, and not for any other group targeted or collaterally affected by this government’s divisive tactics.

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Canadian Association of Muslim Women in Law

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