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If a Bible's Allowed in a Courtroom, Why Isn't a Hijab?

03/03/2015 05:53 EST | Updated 05/03/2015 05:59 EDT
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Judge Eliano Marengo has declared her Quebec courtroom "a secular place and a secular space", and has denied Rania El-Alloul a hearing because she wears a hijab. The judge proclaimed that there are no religious symbols in her courtroom.

A courtroom is a secular place in our society where we seek to determine the truth between competing and conflicting claims. Witnesses are put on the stand under oath and required to tell the truth. Determining the truth is fundamental to a judge's role. In seeking the truth, the courts seek to appeal to an individual's conscience.

The method judges most commonly rely upon to compel a witness to tell the truth is by swearing an oath "while such person holds in his or her hand a copy of the Old or New Testament without requiring him or her to kiss the same". While this provision in Ontario's Evidence Act reflects the religion of Jews and Christians, other religious texts, such as the Koran, can also be used. The oath usually ends with the words "So help me God".

Canada's Evidence Act gives individuals who choose not to invoke the sacred in their promise to tell the truth the option of making the solemn affirmation: "I solemnly affirm that the evidence to be given by me shall be the truth, the whole truth and nothing but the truth".

It is impossible for a judge who daily has witnesses place their hand on a Bible and swear to tell the truth to claim there are no religious symbols in her courtroom. So did the fact that Rania El-Alloul's attire was Islamic weigh more heavily on the judge's decision than the fact that she wore a religious symbol?

I do not do much courtroom work as a lawyer. However, several years ago I was legal counsel in a case where it was both known and material that she was a fundamentalist Christian. The case turned on her transactions with a leading Christian institution. When she took the stand and was handed a Bible on which to swear her oath, she instead chose to exercise her legal right to make a secular affirmation.

I was as silently shocked as the judge. While I am not aware that anything she said in that courtroom was not true, I have often pondered whether that case was lost because the judge expected a deeply religious person to base her commitment to the truth upon her fealty to her religious beliefs. The unspoken suspicion was that a religious person may be willing to deviate from the truth in a secular courtroom because she could do so without violating an oath sworn before her God.

The secular space of the courtroom has for centuries relied upon the allegiance to and fear of the divine to compel truth telling. This is not done with mere sacred symbols on the courtroom walls. It is done by incorporating sacred texts physically into the truth-telling process.

Canada needs to respect the extent to which the sacred impacts the lives and values of many of its citizens when in secular venues. While historically the sacred was primarily associated with some variant of Christianity, in our increasingly post-Christian Canada, the sacred includes Islam and many other religions.

The impact of denying Rania El-Alloul the right to appear and speak in the courtroom of Judge Eliano Marengo goes far beyond denying her the opportunity to reclaim her impounded car. This highly publicized incident takes on greater significance at a time when Muslims in Canada are increasingly sensitive to anti-Islamic prejudice. It is not possible to know exactly what motivated this judicial ruling. However, when determinations by institutions of the state are perceived as being anti-Islamic, it fosters alienation and unintentionally contributes to the radicalization of Islamic activists.

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