One of the cornerstones of any liberal democracy is a judiciary that is independent, fair, and free from bias. Unfortunately, judges are human beings and therefore vulnerable to having the same prejudices many of us have.
An ideal government will name judges that can separate their own preconceptions from what is fundamentally right and legal in rendering their decisions. Unfortunately, this is not what happened in the case of former Alberta judge Robin Camp, and it is clearly not what happened in the case of Judge Eliana Marengo.
Her story is one that shows the dangers of aggressive Quebec Islamaphobia and racism masquerading as legal secularism.
In February 2015, Rania El-Alloul went to court to get her car back after it had been seized by the SAAQ. The issue was a simple one, but Judge Marengo turned a molehill into a mountain by refusing to hear El-Alloul’s case unless she took off her headscarf, inappropriately comparing the hijab to hats and sunglasses which are not permitted in court.
El-Alloul was not wearing a headscarf. She was wearing a hijab mandated by her faith, which she politely told the judge. Judge Marengo in a recording of the proceedings said that the court is a secular space, mentioning that there is no cross on the wall of the courtroom. She then reprimanded El-Alloul, refusing to hear her case because she was “not suitably dressed” as per the regulations of the Court of Quebec.
As there is no record of Judge Marengo denying others their day in court due to them wearing visible crosses, clergy collars, or a kipa, it is most likely she refused El-Alloul because she is Muslim.
Judge Marengo gave El-Alloul two options, she could take off her “headscarf” or request a postponement and consult a lawyer. El-Alloul refused to remove it and thus far, her case has yet to be heard.
When the story broke, numerous complaints were made to the Quebec Conseil de la Magistrature (“the Council”), the organization responsible for disciplining provincially appointed judges in Quebec. The complaints came not just from El-Alloul herself, but from many others unrelated to the case who felt the judge’s conduct was inappropriate of her high office.
Prime Justin Trudeau expressed his disapproval of Marengo on Twitter, saying:
News of a judge refusing to hear a woman’s case while she wore a hijab. This incident is unacceptable. 1/2
— Justin Trudeau (@JustinTrudeau) February 27, 2015
All Canadians deserve to have their rights protected, especially in a court of law. Let’s remember who we are. 2/2
— Justin Trudeau (@JustinTrudeau) February 27, 2015
In February 2016, the Council decided to form a committee to investigate Judge Marengo’s conduct. Marengo, for her part, tried to block the investigation into her conduct by challenging the legitimacy of the Council itself. She claimed that the refusal to hear El-Alloul amounted to a judicial decision that must be addressed in an appeal and that to investigate her via the Council would be a violation of judicial independence.
Fortunately, the Superior Court of Quebec sided with Council the following year. Marengo appealed the decision but the Quebec Court of Appeal agreed with the Superior Court.
An investigation into Judge Marengo’s conduct is now underway or will be soon.
How exactly does the Quebec Conseil de la Magistrature work?
It’s a lot like the Canadian Judicial Council responsible for investigating federal judges.
In addition to administrative duties and a general responsibility to improve the justice system in the province, the Quebec Conseil de la Magistrature is responsible for investigating the conduct of judges sitting on the Court of Quebec, the Professions Tribunal, and the Human Rights Tribunal. It has 16 members consisting of eleven judges, one justice of the peace, two lawyers, and two members of the general public.
They generally conduct investigations in response to complaints filed with them. Complaints to the Quebec Council can be filed online via their website.
Like their federal counterpart, the Conseil cannot overturn judicial decisions or verdicts as those have to go through the appeals process. All the Quebec Council can do is reprimand a judge or in the worst cases, recommend to the government that the judge be removed from the bench. In their investigations, the Council must consider the Judicial Code of Ethics, a set of rules governing the behavior of judges in Quebec.
Judge Marengo will likely be investigated with regards to whether her conduct violated articles two and eight of the Judicial Code of Ethics which have been used to reprimand the racist behavior of judges in the past. They read as follows:
- 2. The judge should perform the duties of his office with integrity, dignity and honour.
- 8. In public, the judge should act in a reserved, serene and courteous manner.”
Judge Eliana Marengo’s behavior towards Rania El-Alloul was unacceptable. Not only did it deny an innocent woman her day in court, but it is also against the values of diversity and freedom from discrimination Quebec supposedly embraces.
Here’s hoping the Council agrees.
* Featured image of the Palais de Justice in Montreal by Jeangagnon via Wikimedia Commons