Quebec’s top court has ruled that a judge was wrong to deny a hearing to a woman wearing a hijab, sending a message from the bench about religious freedoms as the province heads into renewed debate over limiting displays of faith.
The judgment by the Quebec Court of Appeal on Wednesday ends a legal saga for Rania El-Alloul, who was told by a provincial court judge three years ago that her Muslim headscarf violated the rules of courtroom decorum.
The three justices from Quebec’s highest court unanimously found that the judge was off the mark − and nothing in the rules forbids a woman from wearing a hijab in a courtroom if the practice stems from sincere religious belief.
“I’m relieved. I didn’t do this for me, I did it for everybody, because I didn’t want them to face what I did,” Ms. El-Alloul said in an interview. “I did it because I felt it was my duty and my right.”
The ruling comes as Quebec wades into another controversy over religious minorities and displays of faith. Premier-designate François Legault, elected on Monday, says he will use the notwithstanding clause of the Charter of Rights and Freedoms to work around provisions that protect religious practice and expression to ensure that people with “coercive functions” such as teachers, police and judges are dressed in a religiously neutral way.
In Ottawa Wednesday, Prime Minister Justin Trudeau suggested that Mr. Legault’s Coalition Avenir Québec tread lightly.
“As you know, I am not of the view that the government should tell women what they can or cannot wear,” Mr. Trudeau said. “The notwithstanding clause should only be used in exceptional cases and after much reflection and consideration on its impact. This is not something that can be done lightly because suppressing or not defending the fundamental rights of Canadians, I think, is something we should be careful about.”
Ms. El-Alloul, a 51-year-old mother of three, said Wednesday that she left the courtroom in tears in 2015 when Quebec Court Justice Eliana Marengo told her that she wouldn’t hear her case if Ms. El-Alloul wore a hijab.
The issue made waves across the country. At the time, Mr. Trudeau called the incident “unacceptable.”
Ms. El-Alloul had gone to court to try to retrieve her car, which had been impounded by the Quebec automobile insurance board after one of her sons was caught driving with a suspended licence.
Justice Marengo refused to continue with the hearing, invoking regulations that people appearing before the court “must be suitably dressed.”
“In my opinion, you are not suitably dressed,” she said. “Decorum is important. Hats and sunglasses, for example, are not allowed. And I don’t see why scarves on the head would be either.”
Justice Marengo said the courtroom was a secular space free of religious symbols, and told Ms. El-Alloul that she could remove her hijab or ask for a delay to find a lawyer.
Ms. El-Alloul’s case was taken up by the National Council of Canadian Muslims, which backed a court challenge to seek a legal opinion on the matter.
An initial Superior Court ruling found that while Justice Marengo’s arguments went against the principles of religious freedom, a judicial opinion would interfere with the authority of individual judges.
But the Court of Appeal overturned that ruling. It said that Justice Judge Marengo had made an “erroneous” interpretation of the rules on courtroom decorum.
“Contrary to what the trial judge decided,” courtroom rules don’t prevent a litigant from wearing a hijab “when that practice results from a sincerely held religious belief,” the top court found. Courts can only restrict the practice if it conflicts with “an overriding public interest.”
The court also found that Justice Marengo’s decision clashed with Charter rights and “cannot be deemed reasonable.”
The judgment was welcomed by the National Council of Canadian Muslims.
“The idea that a person can be denied access to the justice system on the basis of their sincerely held religious beliefs is an affront to the rule of law and the principles that underpin a free and democratic society like Canada,” said Khalid Elgazzar, a lawyer and vice-chairman of the group.
Meanwhile, the incoming CAQ government tried to play down the issue of coming legislation on displays of faith. Geneviève Guilbault and Simon Jolin-Barrette – two CAQ members and likely cabinet ministers – said Wednesday that the party will not use the notwithstanding clause pre-emptively, but will wait until the law is passed, and potentially struck down by a judge. That is something many constitutional experts say is a near certainty. “To say the clause will be used before even seeing a draft… we’ll see,” Mr. Jolin-Barrette said.
Ms. Guilbault added that public authorities who refuse to remove their religious symbols will lose their jobs.
Mr. Jolin-Barrette, who was the CAQ’s justice critic in opposition, said he thinks the CAQ can draft a law that will be constitutional but, he added, the “notwithstanding clause is a legitimate tool” and a Trudeau family legacy. “It’s been there since 1982, it’s been used by a number of PQ and Liberal governments over the years,” Mr. Jolin-Barrette said. “The ex-prime minister Mr. Trudeau, Pierre Elliott Trudeau, is the person who thought up this provision, which is available to all legislatures.”
The CAQ ban on religious symbols is part of a set of policies meant to promote a uniquely Quebec conception of secularism that protects Roman Catholic symbols as historical artifacts but demands religious neutrality in other areas. Other parts of the CAQ plan are intended to protect Quebec’s francophone language and identity including a cut in immigration quotas, as well as language and values tests for new arrivals.
The CAQ is struggling with an international image problem because of the basket of policies. Media headlines in France described Mr. Legault’s CAQ as “a nationalist and anti-immigrant” government. He then received congratulations from far-right political leader Marine Le Pen, who lauded him for being “lucid and firm” in the face of the migration challenge.
Mr. Legault rejected the congratulations, pointing out that his plan to reduce immigration by 20 per cent will still leave Quebec taking in more immigrants than France or the United States. “I reject all association with Ms. Le Pen,” Mr. Legault said in a statement on social media. “We will favour integration and will accept fewer [immigrants] and take better care of them.”
INGRID PERITZ AND LES PERREAUX
The Globe and Mail, October 3, 2018