Wearing a Hijab in Quebec Courtrooms
The Quebec Court of Appeal recently reminded us, in the matter of El-Alloul v. Procureure générale du Québec1, that the Canadian Charter of Rights and Freedoms (the “Charter”) protects the right to freedom of religion to the extent that the exercise of that right does not conflict with or harm an overriding public interest, including another Charter-protected right.
It started off as a seemingly mundane case. On February 24, 2015, Ms. El-Alloul appeared before the Court of Québec to recover her motor vehicle, which had been seized when her son was driving it without a licence. However, the judge refused to hear her, as she was wearing a religious head scarf (a hijab) in the courtroom. According to the judge, this was contrary to section 24 of the Regulation of the Court of Québec2 (the “Regulation”), which provides that every person present in the courtroom must be “suitably dressed”.
The following month, Ms. El-Alloul filed a petition for declaratory judgment with the Superior Court, requesting a declaration that her right to freedom of religion had been infringed and that she had the right to testify in Court of Québec while wearing a hijab. In order to avoid having her application dismissed on procedural grounds, Ms. El-Alloul also sought a judicial review on a de bene esse basis.
The Superior Court refused to grant the relief she sought, on the grounds that the procedural approach she had chosen was inappropriate, and that the criteria for a declaratory judgment had not been met. Also, in the absence of an actual application for judicial review, the Court considered it impossible to grant the remedy she sought.
Ms. El-Alloul appealed this decision to the Court of Appeal of Québec. In its judgment, the Court took this opportunity to point out some fundamental principles in procedural matters, and certain nuances brought to well-established constitutional principles.
Procedure should be the servant of law
Relying on section 24 of the Charter, the Court of Appeal found that there was no need to deny appellant’s declaratory relief. This provision gives courts discretion to grant relief deemed appropriate and just in the circumstances of the infringement of a Charter right, which relief includes a declaratory remedy.
Ms. El-Alloul also sought judicial declarations on the interpretation of section 24 of the Regulation of the Court of Québec concerning the dress code. This provision posed a serious problem for her, as it called into question her right to wear the hijab before the Court of Québec.
The Court of Appeal also indicated that Ms. El-Alloul’s proceedings were in part an actual request for judicial review, since it sought to challenge the validity of the trial judge’s refusal to hear her case. And since decisions of the Court of Québec can only be challenged through an appeal or judicial review, this explains the hybrid nature of Ms. El-Alloul’s proceeding, which raised the possibility of deciding the issues in dispute through judicial review, albeit on a de bene esse basis.
In the opinion of the Court of Appeal, because of the fundamental rights at issue, the Superior Court judge should have taken a flexible approach and allowed the well-established principle of substance over form to prevail.
Where fundamental rights are at issue, the courts have broad discretion to choose the appropriate judicial remedy. The Court of Appeal therefore held that the Superior Court could have rendered a declaratory judgment in this case, as the applicable criteria were met.
Moreover, the Superior Court should also have carried out a judicial review on a de bene esse basis, as Ms. El-Alloul filed the appropriate proceedings within a reasonable period.
The right to testify while wearing a hijab, provided the circumstances allow it
The Court of Appeal confirmed that in Canada, freedom of religion includes the right to entertain such religious beliefs as one chooses, the right to declare religious beliefs openly without fear of hindrance or reprisal, and the right to manifest religious belief through worship and practice, in the absence of coercion or constraint. This fundamental freedom does not disappear when the individual concerned is before the court.
The Court of Appeal pointed out that the courts must accommodate the exercise of the right to freedom of religion in the courtroom, insofar as it does not conflict with or harm an overriding public interest, which was not the case here, according to the Court of Appeal.
Finally, according to the Court, the Regulation of the Court of Québec does not prohibit a litigant from wearing a hijab in a courtroom, as the dress code it imposes does not constitute an overriding public interest sufficient to restrict the right to freedom of religious expression. The Court of Appeal accordingly held that the decision of the Court of Québec was unreasonable and contrary to the Charter, since the judge did not exercise her judicial discretion in a manner consistent with the Charter. Moreover, her decision should have been quashed by the Superior Court.
However, quashing the Court of Québec’s decision was not a full and sufficient remedy for Ms. El-Alloul, as the matter could not be sent back to the Court of Québec in order to allow her to pursue her initial proceedings under the Highway Safety Code. Declaratory relief was therefore deemed appropriate by the Court of Appeal.
The Court of Appeal explained that it is neither necessary nor appropriate for a judge to determine the sincerity of the religious convictions of a litigant wearing religious clothing in court, unless the sincerity of that religious practice is truly at issue in the dispute. A judge should only engage in such a determination where he or she has reasonable grounds to believe that the wearing of the religious clothing does not result from a sincerely held religious belief or could conflict with or harm an overriding public interest. In such cases, the judge must apply the analytical framework regarding fundamental rights developed by the Supreme Court.
Ultimately, the Court of Appeal declared that on February 24, 2015, Ms. El-Alloul was entitled to be heard by the Court of Québec wearing a hijab to testify and to make representations with respect to the proceeding she had then initiated. The Court also declared that the dress code provisions in the Regulation of the Court of Québec do not prevent a litigant 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.
Section 24(1) of the Charter provides the following:
24. (1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.
The judgment of the Court of Appeal is highly relevant from a procedural point of view, as it stresses that form must yield to substance where procedure is concerned, and it recognizes the right to obtain a declaratory judgment in a constitutional matter where Ms. El-Alloul had already recovered her motor vehicle, which was the initial purpose of her proceeding before the Court of Québec.
In addition, while this matter is not the first to focus on the wearing of religious clothing before a court in Canada, it is interesting in regards to the nuance brought by the Court of Appeal to Supreme Court case law. As the Court of Appeal indicates in its judgment, the religious neutrality of courtrooms in Quebec (and Canada) does not justify prohibiting a litigant from appearing in court because he or she is expressing a sincerely held religious belief. This position respects the guidance of the Supreme Court to the effect that State neutrality is intended to respect religious differences rather than to deny them, to the extent that such beliefs do not harm overriding public interests.
To summarize, the Regulation of the Court of Québec does not prevent a litigant from wearing a hijab in court because of a sincerely-held religious belief, provided that doing so does not conflict with or harm an overriding public interest (such as a constitutional right of another person). It is thus a question of balance, which the Court must assess on a case-by-case basis.
2 CQLR, c. C-25.01, r. 9