Judge who ordered woman to remove hijab loses bid to quash investigation

The Quebec Court judge who refused to hear the case of a woman unless she removed her hijab in the courtroom has lost her latest bid to try to quash a disciplinary investigation into her conduct.

That means more than three years after Judge Eliana Marengo told Rania El-Alloul to remove her hijab, an investigation by a special committee of the Quebec Council of the Magistrature can begin at last.

Marengo tried to block that investigation in court, arguing the council didn't have proper jurisdiction to investigate.

In a decision last Thursday, the Quebec Court of Appeal upheld a lower court ruling that the council's special committee does indeed have jurisdiction to look into complaints filed against Marengo.

"The continuation of the investigation by the committee, while constituting a delicate exercise, is the only possible avenue for justice to be rendered in an informed manner," wrote the panel of three justices in the decision.

Courtroom 'secular space'

El-Alloul was in court in February 2015 for a fairly routine hearing to get her car back after it had been seized by Quebec's automobile insurance board, the SAAQ. 

Before the hearing even began, Marengo told El-Alloul she wouldn't hear her case unless El-Alloul removed her headscarf.

Marengo contended the courtroom was a secular space, comparing the hijab to a hat and sunglasses, items which are not normally allowed to be worn in a courtroom.

El-Alloul refused to remove her hijab, and her case was never heard.

Dozens of complaints

El-Alloul — along with dozens of other Canadians, most of whom had no connection to the case — complained to the Quebec Council of the Magistrature.

That's the body responsible for investigating disciplinary complaints against judges in the province.

Some of those complaints, including El-Alloul's, were rejected by the council on procedural grounds, but others were accepted.

In February 2016, the council decided to form a committee to investigate 28 remaining complaints.

Judge tries to quash investigation

Marengo fought the investigation from the beginning, arguing the committee didn't have proper jurisdiction to investigate those complaints.

Court documents show Marengo argued before the council in 2016 that her request for El-Alloul to remove her hijab amounted to a judicial decision.  

Marengo contended that if that decision is to be challenged, it should be through an appeal filed with the court and not through a disciplinary investigation by the Council of the Magistrature.

Marengo argued the council has no jurisdiction to overturn judge's decisions, therefore its review of the case amounts to "a serious breach of the principle of judicial independence."

Investigation will now resume

The council's investigation has been on hold for months pending the results of this court process.

Esther Boivin, a spokesperson for the Council of the Magistrature, told CBC Monday now that the Court of Appeal has ruled, the committee will resume its work.

It could take months or even years before the investigation is complete.

The council has the power to reprimand a judge, and in extreme cases, it can recommend to the government that a judge be removed from the bench.

Marengo's lawyers did not immediately respond to CBC's request for comment.

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