Denying Quebec woman day in court because she was wearing of hijab went against Canadian law principles: judge

MONTREAL – Seventeen months after a Quebec Court judge told her to remove her hijab in court, Rania El-Alloul has received partial vindication from the justice system, but no guarantee it will not happen again.

In a ruling released this week, Superior Court Justice Wilbrod Décarie writes, “The court has a lot of sympathy for (El-Alloul) and deeply regrets how she was treated.”

Judge Eliana Marengo’s February 2015 refusal to hear El-Alloul in the “secular space” of a courtroom unless she removed her Muslim head scarf flew in the face of a 2012 Supreme Court of Canada decision that a witness was entitled to testify in a face-covering niqab, Décarie found.

But he did not issue the judgment sought by El-Alloul — declaring that her rights under the Charter of Rights and Freedoms had been breached and affirming her right to appear in court wearing her hijab.

“Each case is a specific case that has to be evaluated in the context of the witness’s court appearance,” Décarie wrote. “It cannot be declared in advance, absolutely and out of context, that El-Alloul will have the right to wear the hijab during her future appearances before the Court of Quebec. Nobody can predict the future.”

What happens next, I don’t know. I hope no one ever feels what I felt in the past

Julius Grey, one of El-Alloul’s lawyers, called Décarie’s finding “wrong in law and very dangerous.” It opens the door to litigants trying to destabilize a witness by filing motions asking she remove her hijab.

“A person will feel insecure before the courts,” Grey said, adding he favours an appeal.

The lawyer said the issue is important as restrictions on religious dress become more common.

“It’s not a particularly Quebec matter. All over the West there is an unhealthy irritation, I would say, with religious garb, with religious practice, with other customs,” Grey said.

El-Alloul told the National Post she is relieved Marengo’s actions have been criticized.

“She did something against the law. She did something wrong. Really, I am happy,” she said. “What happens next, I don’t know. I hope no one ever feels what I felt in the past.”

El-Alloul appeared before Marengo to get back her car, which had been seized when her son was stopped while driving with a suspended licence.

“Can I ask why you are wearing a scarf?” the judge asked.

El-Alloul replied it was because she is a Muslim.

Marengo adjourned the hearing and after deliberating nearly half an hour told El-Alloul the courtroom is a “secular space” and she was not suitably dressed.

“Decorum is important. Hats and sunglasses for example, are not allowed. And I don’t see why scarves on the head would be either,” she said. “The same rules need to be applied to everyone.”

El-Alloul refused to remove her hijab, but ended up dropping the case because her car was eventually returned.

In his decision, Decarie wrote that Marengo’s argument that the courtroom should be a secular space went against the principles of Canadian law protecting freedom of religion.

He said Marengo’s decision restricted El-Alloul’s right to exercise her “sincere religious beliefs” without any compelling reason to do so.

In a sworn affidavit filed with the Quebec Superior Court, she said she felt “deeply humiliated.”

“I felt that I was forced to choose between my sincerely held beliefs and my fundamental right to be heard by a court on an application that was important to me,” she said.

When her experience was publicized in 2015, there was widespread alarm. Justin Trudeau, then Liberal leader, called it “unacceptable,” and prime minister Stephen Harper said El-Alloul should have been allowed to testify.

A crowd-funding effort raised $52,000. Some of the money was used to fund her court case, while $30,000 went to start a bursary at McGill, El-Alloul said.

Décarie’s decision reveals that Quebec’s judicial council, which supervizes provincial judges, has retained 28 complaints against Marengo for examination related to the El-Alloul matter.

A council spokeswoman said the complaints only become public if they are referred to an inquiry committee for public hearings, which has not happened yet.

El-Alloul said she wants the disciplinary process to go forward.

“I hope she understands that what she did was wrong,” she said. “I’m sorry, the hijab is not like sunglasses or a hat.”

With a file from The Canadian Press

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