Quebec Court of Appeal Rules on Wearing of Religious Symbols in Courtroom-But is the Debate Over?

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On October 3rd 2018, the Quebec Court of Appeal issued its decision regarding Rania El-Alloul’s right to wear her hijab in the courtroom. In a unanimous decision, the three justices of the Quebec Court of Appeal found that El-Alloul was wrongfully denied access to justice when a provincial court judge refused to hear El-Alloul’s case because she would not remove her religious headscarf.

The saga begun for El-Alloul back in 2015, when she went to court regarding her impounded car and the province’s auto insurance board. The case regarding her car was in front of Justice Eliana Marengo, who reportedly refused to hear the case because El-Alloul’s wearing of her hijab in the courtroom. Justice Marengo allegedly told El-Alloul that such a headscarf violated the rules of courtroom decorum.

El-Alloul then sought a clarification from the Quebec Superior Court as to whether all litigants in Quebec have a right to wear a hijab or other religious attire in court. Superior Court Justice Wilbrod Decarie conceded that Justice Marengo’s decision went against the principles of Canadian law protecting freedom of religion, however did not declare whether all litigants, El-Alloul included, have the right to wear a hijab or other religious attire in the courtroom. Rather,“(Marengo) does not show any error justifying the intervention of the court,” wrote the three justices from the Quebec Superior Court.

El-Alloul’s lawyers then appealed the Quebec Superior Court’s 2016 decision. The Quebec Court of Appeal ruled that the Quebec Court dress code’s rules do not forbid the wearing of a hijab if the wearing of such constitutes a sincere religious belief.

In response to the Quebec Court of Appeal’s ruling, El-Alloul has said she is “…relieved. I didn’t do this for me, I did it for everybody, because I didn’t want them to face what I did.”

However, while El-Alloul’s legal saga may have come to an end, the legal saga surrounding the wearing of religious symbols in Quebec may be far from over. Newly elected Quebec Premier, François Legault, reportedly announced last week that he planned to ban public employees in positions of authority (e.g. teachers, police and judges) from wearing religious symbols. Legault has said he would invoke the Canadian Constitution’s notwithstanding clause (Section 33 of the Charter of Rights and Freedoms) if need be, to override the Charter and ensure he can put the ban in place.

Nevertheless, while the saga regarding the wearing of religious symbols in Quebec may not be over, it will likely be a while before it comes to a head. First, the National Assembly would have to pass a law relating to the wearing of religious symbols. Then, it would need to be challenged and go through the judicial review process. Finally, as per the Supreme Court’s ruling in Ford v. Quebec, the National Assembly would have to explicitly specify the particular provision within a section of the Charter that it intended to override. As such, it seems that the use of the notwithstanding clause in relation to the wearing of religious symbols is a premature discussion for the time being, but nevertheless, a legal saga that can be expected to continue.

This blog post was written by a CCLA student. Opinions expressed do not necessarily reflect the views of the CCLA.