Thursday, February 26, 2015

Wearing a hijab bars litigant from court

In truly bizarre story (see link below) a Quebec judge refused to hear a woman wearing a hijab. The judge cited Article 13 of the regulations of the Court of Quebec which says "Any person appearing before the court must be suitably dressed". 

The judge said that rules had to apply equally and no one would be allowed to wear a headscarf in Court. 

"In my opinion, you are not suitably dressed," Judge Eliana Marengo told Rania El-Alloul. 

"Decorum is important. Hats and sunglasses, for example, are not allowed, and I don't see why scarves on the head would be. The same rules need to be applied to everyone."

(One wonders if the judge has heard of the concept of disproportionate impact of facially neutral rule - for example a ban on breast feeding at work that applied equally to men and women). 

Most jurisdictions have a provision similar to Quebec's Article 13.  Nunavut, for example has Practice Direction 25 that deals with court attire - although it largely is drafted to allow lawyers to wear traditional clothing in court. Ontario generally requires that all persons in court be dressed respectfully and a judicial officer can refuse to hear someone who, for example, is wearing a swimsuit - and I have seen that (Ontario Court of Justice in Bradford). 

But it is unheard of (at least till now) for a modern Canadian court to disallow someone to be heard because of religious clothes. In Ontario (but not Nunavut) court clerks often say "remove your hat unless worn for religious purposes"; merely saying a hat is worn for religious purposes ends the issue.  

Freedom of religion does not end at a courtroom door; indeed case law protects the right of someone to attend court with full face covering absent good reason to require unveiling. 

For a judge in Canada today to refuse to hear someone because they are wearing a hijab is clearly an error of law - not to mention just plain bizarre. 

Tuesday, February 24, 2015

Unreasonable verdict

R v Moose, 2015 ABCA 71:

A verdict may be unreasonable if the trial judge has drawn an inference or made a finding of fact essential to the verdict that is incompatible with evidence that has not otherwise been contradicted or rejected by the trial judge: R v RP2012 SCC 22 (CanLII) at para 9, [2012] 1 SCR 746.

Monday, February 23, 2015

Misapprehension of evidence involves a "stringent standard"

R. v. Bonnington, 2015 ONCA 122:

Misapprehension of evidence involves a "stringent standard": R. v. Lohrer, 2004 SCC 80, [2004] 3 S.C.R. 732, at paras. 1-2. This standard is met only "[w]here a trial judge is mistaken as to the substance of material parts of the evidence and those errors play an essential part in the reasoning process resulting in a conviction": R. v. Morrissey (1995), 22 O.R. (3d) 514 (C.A.), at p. 541, cited with approval in Lohrer.

Saturday, February 21, 2015

Freedom of Religion

Recent events in the news have raised the issue of religious freedom and specifically the legal implications of religiously focused face covering. The Constitution does give certain rights and freedoms that are relevant.
The "Fundamental Freedoms" section of the Canadian Charter of Rights and Freedoms states:

2. Everyone has the following fundamental freedoms:
(a) freedom of conscience and religion ...
A fundamental right to freedom of religion is a central part of the Constitution.

That said, all rights and freedoms are subject to reasonable limits prescribed by law that are consistent with a free and democratic society. The hard issue is where to draw that line.

The Supreme Court considered the issue of people who did not want their faces to be on public documents - drivers licences - in Alberta v Hutterian Brethren of Wilson Colony 2009 SCC 37. Here the Court held religious conduct was properly limited.

Alberta required all persons obtaining drivers licences had to have a photograph taken; a requirement objected to by Hutterites. Alberta conceded that the photograph requirement was a violation of the Hutterites' religious freedom but argued that this violation was allowable as a "reasonable limit" on Charter rights. The Hutterites maintained that the requirement was an unreasonable limit.

Chief Justice McLachlin, writing for the majority, found the law constitutional. She found that the government's need to fight identity fraud was pressing, and that driving was not a right, so the government was entitled to attach legitimate conditions to it.

A government requirement to reveal a face, contrary to a sincerely held religious belief, is valid but only if there is a substantial and important reason for the requirement and there is no other practical way to fulfill the requirement. Absent such basis a limit on freedom of religion will be held unconstitutional.