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
While I agree that this matter merits public commentary, I’m sure there have been countless cases of judges acting in a similar manner – that is, judging a litigant’s worthiness based on how that person presents him/herself and then displaying evident bias in the conduct of the proceedings.
I’ve experienced that myself, the instance that is closest to this one being a hearing in which the first words spoken were those of the judge admonishing me for not wearing a tie. He advised me to not to return to the courtroom the next day unless I was wearing one. I didn’t say anything in response and I did wear a tie the next day, but I knew that wasn’t going to assist me in getting a fair hearing.
I’ve been in front of enough judges now to say that there is a systemic problem of judicial arrogance. And that the claimed “independence” is a myth. That is why there is so much rhetoric about this purported independence. I’ve very recently found a concept that has been substantially discussed and that sheds some interesting light on the problem.
The term is “regulatory capture”. (I’m also currently looking at a species of this phenomenon or at least a close cousin in “journalistic capture”). Our courts are regulatory agencies. They are, in my view, very much captured by other interests, of which one that has particularly concerned me is the vast community of “administrative justice” agencies. The agency that tops the list of those I’ve engaged for being problematic is the Canadian Judicial Council. It’s a creature of statute (the Judges Act) and so is an administrative justice agency, but it’s members are exclusively superior court judges. So it stands uniquely at the intersection of those two worlds. Perhaps the most graphic evidence I’ve seen of the bias of judges in favour of their administrative adjudicator friends is a speech given in 1999 by B.C. Supreme Court Justice Carol Huddart. The title is, “Know Thyself: Some Thoughts About Impartiality and Administrative Decision-Makers From an Interested Observer. Notice that she said “interested”, not “disinterested”. I found that speech after she had overturned what I’d won at the trial level court. The speech still isn’t publicly accessible online.
The CJC was evidently created principally in reaction to a embarrassing mess made of the various actions that eventually resulted in the removal from the bench of an Ontario superior court judge, Leo Landreville. I think it’s clear in hindsight that it was a mistake.