10/03/2018 20:26 EDT | Updated 10/03/2018 20:31 EDT

In Case Of Rania El-Alloul, Quebec Top Court Reaffirms Right To Wear Hijab In Court

"For quite a long time now, the courts have had little difficulty accommodating these types of attire."

Ryan Remiorz/CP
Quebec's highest court has ruled in favour of a woman who was denied justice three years ago after a judge ordered her to remove her hijab.

MONTREAL — A Montreal woman who was scolded by a judge for wearing a hijab in court had her fundamental rights violated, Quebec's Court of Appeal ruled Wednesday.

The court decided unanimously that citizens who wear religious attire cannot be denied access to justice.

The ruling stems from a 2015 courtroom incident involving Rania El-Alloul, who was told by a Quebec court judge to remove her Muslim head scarf if she wanted a case involving her impounded car to proceed. El-Alloul refused, and her case was adjourned.

Graham Hughes/The Canadian Press
Wearing the Hijab when she went to court, Rania El-Alloul poses for a photograph at her home in Montreal on Feb. 28, 2015.

"No party challenges that the courtrooms of the Court of Quebec — and for that matter all courtrooms in Quebec as throughout Canada — are spaces of religious neutrality," the three-judge appeal panel found.

"This does not mean, however, that judges may rely on the neutrality of the courts alone as a justification for preventing litigants from accessing a courtroom simply because they are expressing sincerely held religious beliefs."

The ruling comes as the newly elected Coalition Avenir Quebec government plans to bring in legislation prohibiting public servants in positions of authority such as judges, teachers, prosecutors and police officers from wearing religious symbols.

In the case before the courts, Judge Eliana Marengo told El-Alloul the courtroom was a secular space and she was violating rules requiring suitable dress.

It is usually quite easy for a judge to recognize the difference between suitable religious attire and those cases where the showing lack of respect for the court Statement from Quebec's Court of Appeal

"In my opinion, you are not suitably dressed,'' Marengo told 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 either.

"I will therefore not hear you if you are wearing a scarf on your head, just as I would not allow a person to appear before me wearing a hat or sunglasses on his or her head, or any other garment not suitable for a court proceeding."

The appellate court called that decision unreasonable, saying Quebec court rules do not forbid head scarves if they constitute a sincere religious belief and don't harm the public interest.

"In light of the multi-confessional fabric of Quebec society, it is usually quite easy for a judge to recognize the difference between suitable religious attire and those cases where the individual litigant or witness is showing lack of respect for the court by his or her choice of clothing," the ruling reads. "The types of religious clothing worn in Quebec are not numerous and are not generally difficult to identify. For quite a long time now, the courts have had little difficulty accommodating these types of attire."

Graham Hughes/The Canadian Press
Rania El-Alloul at her home on Feb. 28, 2015.

Freedom of religious expression doesn't stop at the courtroom door, the appellate court added, noting the Marengo's decision failed to take into account El-Alloul's constitutional rights. It also ignored guidance from the Supreme Court of Canada on religious clothing in a courtroom.

Catherine McKenzie, one of the lawyers representing El-Alloul in the matter, said the decision reaffirms important principles about access to justice.

"Our courts are spaces that are supposed to treat people neutrally," McKenzie said. "The everyday default should be you don't get questioned about your religion just because you're wearing a symbol in court."

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In 2016, Quebec Superior Court denied El-Alloul's request for a ruling declaring that she had been treated unfairly by Marengo. The appeal court has set aside that ruling and quashed Marengo's initial decision.

Julius Grey, another lawyer representing El-Alloul, called Wednesday's ruling "gratifying." It shows "you can't, as a matter of principle, refuse access to somebody merely because of a religious sign," he said.

Marengo faces a hearing before Quebec's judicial council over the matter. No date has been set.

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