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David Butt

David Butt

DAVID BUTT

Quebec judge who demanded hijab removal needs a Charter lesson Add to ...

David Butt is a Toronto-based criminal lawyer who has argued in the Supreme Court for the right of Muslim women to testify while veiled.

On Thursday, Quebec Judge Eliana Marengo turned away a single mother coming to court trying to get back her impounded car. She wasn’t even driving the car when it was impounded. She had done nothing wrong. Nothing, that is, except wear the same religious head scarf she had worn for years, including when she swore her Oath of Allegiance to Canada.

Every way you look at this issue, the Quebec judge was just plain wrong.

First, let’s talk about the law. The Supreme Court of Canada has already decided the issue, dead against what this judge did. Freedom of religion is a Charter right. According to the Charter, religious freedoms can be limited only if the limits are both reasonable, and demonstrably justifiable. So what sort of limits on religious freedoms are reasonable and demonstrably justifiable? Here is an illustrative example, taken from the Supreme Court’s catalogue of rulings on point.

Religious beliefs will not excuse you from having a photo put on your licence if you wish to drive. The reason is that driving is a privilege, not a right, driving is heavily regulated, and photo ID is a crucial part of effectively regulating our roads to keep us all safe. We can all easily see how excusing people from a driver’s licence photo would interfere with important issues of road safety that affect us all.

How does wearing a head scarf similarly interfere with the proper functioning of the courts? Why is the head scarf a problem? Courts listen to people and make decisions based on what they hear. Does a head scarf interfere with a court’s ability to hear a person, understand them, and make a decision based on what they say? Of course not. So to return to the legal test, violating someone’s religious freedom by forcing them to remove a piece of religious head gear before they testify in court is neither reasonable nor demonstrably justifiable, and never could be. By the way, Sikhs have been wearing turbans in court for years, and Jews have been wearing yarmulkes. The justice system accommodates them all just fine. Do all those fine folks now have to partially disrobe as well? What about that terrible clerical collar? And while you’re at it, why not insist that all religious facial hair be shaved? It’s hard to detect a smirk or a frown behind a thicket of dense fur.

The judge offered two explanations for her position. Both are bogus. She said non-religious persons remove hats and sunglasses. So, she argues, she is just treating the person with the religious head scarf the same as everyone else. This is patently absurd. Does the judge really think religious apparel is no different than sunglasses and baseball caps? If she really thinks that, she does not know the first thing about religious beliefs and practices, and the depth and meaning they bring to many peoples’ lives. As a lawyer I’ve had to read the Charter once or twice, and I’ve never found the slightest reference to freedom of shades and fedoras. But I did find freedom of religion, right up front, in s.2(a). So the comparison argument is a non-starter.

The judge also said that courtrooms are a secular place, and must remain so. At least this argument has the tiny but questionable virtue of being only half-baked. Courtrooms are secular in that the law they apply can have no entrenched advantages for any one religious group. But that is not the issue here. The issue here is access to justice. Courtrooms dispense justice, and justice must be equally accessible for everyone, regardless of what, if any, religious beliefs they hold, and how they practise (or not) those religious beliefs. We can no more exclude from a courtroom a hijab-wearing woman seeking justice than we could exclude from a hospital emergency room a hijab-wearing woman with serious injuries seeking treatment. Remember that ancient Roman goddess Justitia with the scales in her hand? We all learned in grade school that for thousands of years she has worn a blindfold because she welcomes everyone to court, and judges people based on the evidence, not on skin colour, gender, clothing, or religion.

No doubt the judge in question is a committed secularist. And I for one would defend vigorously her personal freedom to hold those views whether I agree with them or not. But in doing what she did in her capacity as a judge, she is, ironically for a secularist, no better than the fundamentalist religious dogmatists who try to exclude those with different beliefs from fully participating in, and benefiting from, essential social institutions.

What the judge did was profoundly un-Canadian. And profoundly wrong.

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