Updated October 6 2016
In October 2015, Rania El-Alloul,a hijabi woman, came before Madame Justice Eliana Marengo of the provincial court to ask the court to return her seized vehicle. The judge asked El-Alloul why she was wearing a scarf and, after a brief recess, refused to hear El-Alloul based on the Regulation of the Court of Québec which provides:
13. Any person appearing before the court must be suitably dressed.
The judge reportedly said that the wearing of the hijab (or head scarf) was akin to wearing a hat or sunglasses. She was aware, or made aware, that the hijab is worn on religious grounds.
El-Alloul got her car back because the automobile insurance rules eventually provide for the return of seized vehicles but her application for an expedited return was not heard.
She filed a complaint with Quebec’s judicial council, which was refused in February 2016 according to a reportage from the CBC’s Steve Rukavina in September 2016.
El-Alloul also sought declaratory relief with the Superior Court by asking for a declaration that her treatment by the provincial court judge was illegal and discriminatory. On October 5, 2016, the Superior court ruling that the although the original decision had been discriminatory, the type of procedure used was inappropriate.
A failure to respect religious accommodation rules
The decision to refuse to hear the applicant appears to have failed to consider Quebec’s Charter of human rights and freedoms, which guarantees equality based on religious grounds, and trumps other Quebec laws including the regulation noted above (unless otherwise stipulated).
Also ignored was a ruling of the Supreme Court of Canada in the 2012 case of R. v. N.S. where a witness wearing a niqab (a religious head covering that also covers the lower face) was entitled to have her sincerely-held religious convictions considered by the court and accommodated where possible, having regard to competing rights and other public policy considerations. The witness ultimately lost her bid to remain covered in R. v. N.S., but at least the final decision was based on a serious judicial consideration of the applicant’s rights and not an out-of-hand dismissal.
Diminished access to justice for religious minorities in Quebec
The Quebec ruling created a direct barrier to access to justice for a religious minorities who wear distinct clothing, and especially for minority woman at the hands of a sitting member of the judiciary.
Based on the ruling, any form of religious headgear – from hijabs to niqabs, to turbans and kippas, could be targeted on the same grounds – as unsuitable dress – given the broad discretion that judges enjoy in their courtrooms. It is unclear what, if any impact the Superior Court’s critique of Madame Justice Morengo will have on future cases.