Montreal woman kicked out of courtroom for wearing hijab still looking for answers

Rania El-Alloul, the Montreal woman who was asked to remove her hijab in order to have her case heard in court, was back in a courtroom today, trying to get a clear ruling stating that a judge can't refuse to hear a case in Quebec based on someone's religious attire.

El-Alloul appeared before Quebec Court Judge Eliana Marengo in February 2015 on a routine matter, trying to get back a vehicle that had been seized by the Quebec Automobile Insurance Board.

Marengo told El-Alloul she would not hear her case unless she removed her hijab.

​The judge said the courtroom was a secular space and compared the hijab to a hat and sunglasses, which would not normally be allowed in a courtroom.

Politicians and civil rights groups condemned the judge's remarks at the time, but El-Alloul has yet to receive an official apology or acknowledgement that Marengo did anything wrong.

"She's left wondering, 'What happens the next time I go to the Court of Quebec?'" El-Alloul's lawyer, Catherine McKenzie, told a panel of Quebec Court of Appeal justices Wednesday.

Seeking clarification

El-Alloul has been trying to seek justice on a number of legal fronts.

In 2016, her legal team asked a Quebec Superior Court justice to issue a "declaratory judgment" — a ruling from the bench clearly stating that a judge can't refuse to hear the case of El-Alloul or any other woman because they wear a hijab.

In his decision, Justice Wilbrod Décarie said he sympathized with El-Alloul and regretted how she'd been treated.

But Décarie stopped short of issuing the requested declaratory judgment, saying it was beyond his jurisdiction and largely unnecessary, given that the Supreme Court of Canada had already ruled on such matters.

"Indeed, the thesis adopted by Judge Marengo that a courtroom is a secular space where the religious beliefs of a person have no right to be cited has no force of law in Canada," Décarie wrote.

El-Alloul's lawyers presented their arguments in the Quebec Court of Appeal Wednesday, challenging Décarie's ruling. 

'Startling proposition'

McKenzie and El-Alloul's other lawyer, Julius Grey, argued the declaratory judgment was needed to reassure both El-Alloul and anyone else who wears religious attire that they have a right to be heard in Quebec courts.

Grey argued that Décarie's ruling was based on a "startling proposition" because it acknowledged that Judge Marengo made a mistake, but refused to offer any remedy for that mistake.

Grey said Décarie's ruling doesn't clarify anything.

"There will always be a possibility that Ms. El-Alloul will be challenged if she goes to court in the future," Grey said.

The lawyer representing the Court of Quebec argued that a declaratory judgment could threaten judicial independence in future, hypothetical situations.

El-Alloul emotional in court

El-Alloul was in the courtroom for the arguments, wearing a hijab.

"I hope the decision will be positive.… I'm doing [what] I think is right, and it is my right," she said in a brief statement to reporters after the hearing.

"When my lawyer was talking, I cried. It brought it all back again for me," she told CBC News as she left the courthouse.

The panel of appeal court judges will take time to a consider the case.

Disciplinary complaint against judge on hold

In the meantime, an investigation by Quebec's Council of the Magistrature — the body responsible for disciplining judges in Quebec— is on hold.

Dozens of people complained to the council after Marengo's remarks.

But Marengo is challenging the council's jurisdiction to investigate her in court. Lower courts rejected her challenge, but she is now taking the case to the Supreme Court of Canada.

The council says until there's a ruling, the investigation is suspended. 

That means it could be months or years before there's a decision about whether Marengo should be officially sanctioned for her remarks.

She is still working as a judge.