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Quebec judge’s no-head-scarf rule contradicts prior Supreme Court case

Rania El-Alloul says being denied a hearing because of her head scarf was ‘devastating and humiliating.’

Christinne Muschi/The Globe and Mail

A Montreal judge who told a Muslim woman to take off her head scarf if she wanted a court hearing was assailed by the Prime Minister's Office, opposition leaders and Quebec's Premier, as the province's bitter debate over religious freedom and secularism reached the justice system.

The case pits judicial independence against the rights of religious minorities to have access to the justice system. Judges cannot be brought before human-rights commissions. A spokesperson for the Court of Quebec defended Justice Eliana Marengo's right to set the rules for her courtroom.

But Justice Marengo's decision to deny Rania El-Alloul a hearing over the head-scarf issue flies in the face of two cases affirming a right to wear religious garments in court, including one that reached the Supreme Court of Canada.

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Ms. El-Alloul, who emigrated from Kuwait 12 years ago and became a Canadian citizen in 2007, said in an interview that the experience was devastating and humiliating. "I am Canadian. I have so many rights. But I felt like I'm not Canadian any more, because of the way she dealt with me. She destroyed me that night. I felt that I'm destroyed."

She said she wept on the bus and Metro on the way home, and couldn't sleep all night. She vowed to fight for others, including Jewish men who wear yarmulkes, but she said she did not yet know her options. Legal experts said a complaint to the Conseil de la magistrature du Québec may be the only route within the legal system. The judges' council can issue a reprimand or recommend a judge's removal.

The single mother of three went to court without a lawyer to regain possession of a car impounded by the province's insurance board after her son drove it with a suspended licence. (Without a judge's ruling, she will have to wait till mid-March for the car.)

Justice Marengo told her that under Rule 13 of the Court of Quebec – "any person appearing before the court must be suitably dressed" – she would have to remove her head scarf. She said that the courtroom is a "secular space" and that the rules are the same for everyone.

"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."

A spokesman for the Prime Minister's Office said that, "if someone is not covering their face, we believe they should be allowed to testify." Earlier this month, Prime Minister Stephen Harper criticized a Federal Court ruling for ordering the government to stop banning the Muslim face-coverings known as niqabs during citizenship ceremonies.

Premier Philippe Couillard said religious clothing should be removed only if it creates a problem for communication, identification or security. "I will be very careful because the judge is sovereign in her decisions, in her courtroom. I'm a little bit disturbed by this event, I must say."

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Federal NDP Leader Thomas Mulcair and Liberal Leader Justin Trudeau also said the judge had been wrong.

Case law in Canada appears to give strong backing for the right to wear religious headgear in court. The Supreme Court of Canada, ruling in a 2012 case where an alleged sex-assault victim sought to wear a niqab while testifying, said judges need to balance a witness's sincere religious beliefs with the accused's right to a fair trial. "A secular response that requires witnesses to park their religion at the courtroom door is inconsistent with the jurisprudence and Canadian tradition, and limits freedom of religion where no limit can be justified," Chief Justice Beverley McLachlin wrote.

In a 1993 case in Toronto, Justice Arthur Whealy of the Ontario Superior Court of Justice ordered a spectator, Michael Taylor, to remove his Muslim kufi, a prayer cap, or leave the courtroom. The Ontario Court of Appeal, the Canadian Judicial Council and the Federal Court of Appeal all said the judge had been wrong.

With a report from The Canadian Press

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