The Québec Court of Appeal has ruled in favour of the right to wear a hijab in the courtroom.

Background

In El-Alloul c Québec (Attorney General) & Ors 2018 QCCA 1610 [unofficial English translation]  Ms El-Alloul appealed a judgment of the Superior Court, District of Montreal, dismissing her application for review of the refusal by a judge of the Court of Québec to hear her in court in February 2015 because she refused to remove her hijab in the courtroom and was therefore contravening the dress code established under the Regulation of the Court of Québec. After Ms El-Alloul had explained that she wore a hijab for reasons of religion and had done so for many years, the trial judge had said:

“In my opinion, the Courtroom is a secular place and a secular space. There are no religious symbols in this room, not on the walls and not on the persons. Article 13 of the Regulation of the Court of Québec states: ‘Any person appearing before the Court must be suitably dressed.’

In my opinion, you are not suitably dressed. Decorum is important. Hats and sunglasses, for example, are not allowed. And I don’t see why scarves on the head would be either. The same rules need to be applied to everyone. | will therefore not hear you if you are wearing a scarf on your head just as | 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.”

When she took the matter to the Superior Court, the judge recognised that the trial judge’s approach was fundamentally wrong in law but was of the view that the issue raised by the proceedings was not whether the trial judge had erred in law, but rather whether the Superior Court could issue judicial declarations respecting a right which was otherwise clearly recognized under Canadian law [22]. He concluded that he could not issue the declarations sought by the appellant based on the breaches of her constitutional rights resulting from the decision of the first instance judge [23] because the criteria of article 142 of the Code of Civil Procedure for granting such a declaration had not been satisfied [24].

Before the Court of Appeal, the appellant argued that the Superior Court judge had erred by holding that a declaratory judgment was not available to establish her rights in February 2015 and for the future and that he had also erred by holding that judicial review was not available to her [32].

The judgment

On the procedural point, the Court held that all the criteria to address the issues raised by Ms El-Alloul had been satisfied and there had been no reason to deny her constitutional remedies by applying a rigid procedural approach. It had therefore been incumbent on the Superior Court judge to address the merits of the constitutional issues that she had raised and the remedies she was seeking [63].

On the broader issue of religious dress in the courtroom:

“[64] Since the advent of the Canadian Charter, courts have firmly held that the fundamental right to ‘freedom of conscience and religion’ set out in paragraph 2(a) thereof includes the right to religious expression. The purpose of paragraph 2(a) of the Canadian Charter is ‘to ensure that society does not interfere with profoundly [held] personal beliefs that govern one’s perception of oneself, humankind, nature, and, in some cases, a higher or different order of being. These beliefs, in turn, govern one’s conduct and practices’…

[65] Freedom of conscience and religion — which entails both the right to hold religious beliefs and the right to act upon these beliefs — does not disappear or change when the concerned individual is dealing with courts. No party challenges that the courtrooms of the Court of Québec — and for that matter, all courtrooms in Québec as throughout Canada — are spaces of religious neutrality. 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. In Loyola [Loyola High School c Québec (Attorney General) 2015 SCC 12], Justice Abella wrote that the secular nature of the State (or State neutrality in religious matters) does not imply the negation or extinction of religious beliefs, but rather respect for religious differences, insofar as such beliefs do not conflict with or harm overriding public interests…

[66] This conception of the neutrality of the State is firmly established in Canadian constitutional law, which prohibits the State from promoting the participation of believers to the exclusion of non-believers or vice versa…

[67] It follows that litigants are permitted to express their sincerely-held religious beliefs, including with respect to religious clothing, and courts must accommodate the exercise of that right in a courtroom insofar as it does not conflict with or harm an overriding public interest. Freedom of religious expression does not stop at the door of a courtroom.

[68] Freedom of conscience and religion may rightly be restricted in a courtroom if the exercise of that right conflicts with or harms an overriding public interest, provided any such limit is demonstrably justified in a free and democratic society. But the basic constitutional right remains intact, including in the confines of a courtroom.”

The Court (per Mainville JA) clarified the law as follows:

• the dress code in the Regulation of the Court of Québec does not set out a general prohibition: religious dress may be worn in a courtroom where it results from a sincerely held religious belief and does not conflict with or harm an overriding public interest [96];
• an inquiry into the sincerity of the religious practice which results in the wearing of religious clothing in a courtroom should usually proceed only where there are reasons to doubt the sincerity of the religious practice at issue or where there is reason to believe that it conflicts with or harms an overriding public interest [97];
• where the practice may conflict with or harm an overriding public interest, it is incumbent on the judge to identify the interest that may be at issue and to carry out the balancing exercise required by the Supreme Court of Canada [98]; and
• the rule set out in the Regulation of the Court of Québec providing that every person present in the courtroom must be ‘suitably dressed’ also applies to religious clothing and a litigant who avails himself of that right must always be ‘suitably dressed’, that requirement being understood in relation to the right claimed [99] – for example, a hijab with rude or mocking printing on it would not be permitted [100].

Therefore, the Court:

• allowed the appeal:
• set aside the judgment of the Superior Court of 3 October 2016;
• quashed the decision of the Court of Québec of 24 February 2015;
• declared that the appellant had been entitled to be heard by a judge of the Court of Québec on 24 February 2015 wearing a hijab to testify and to make representations with respect to the proceeding that she had then initiated; and
• further declared that the dress code provisions of the Regulation of the Court of Québec do not forbid an appellant from wearing a hijab if that practice results from a sincerely-held religious belief and does not conflict with or harm an overriding public interest [105].

And more generally…

In the broader context of religious dress in Québec, CBC reports that Prime Minister Justin Trudeau is urging Quebec’s incoming Premier, François Legault, to reconsider the plan to ban some public employees from wearing religious symbols such as a hijab or kippa. Legault said that the ban would apply to civil servants in positions of authority, including judges, prosecutors, police officers and teachers, and that he would be prepared to use the “notwithstanding clause” in the Charter of Rights and Freedoms if the ban should be deemed unconstitutional. Trudeau told reporters in Ottawa that “The Charter of Rights and Freedoms is there to protect our rights and freedoms, obviously,” and added that he believes that the state should not “tell a woman what she can or cannot wear.”