October 03, 2018
Thibault, Mainville, Gagné
Appeal from a judgment of the Superior Court dismissing an application for a declaratory judgment and judicial review. Allowed.
The application arose from the refusal by a judge of the Court of Quebec to hear the appellant because she refused to remove her head scarf (hijab) in the courtroom and was therefore contravening the dress code under the Regulation of the Court of Quebec (CQLR, c. C-25, r. 4), which states that “[a]ny person appearing before the court must be suitably dressed.” The Superior Court deemed that a declaratory judgment was not the proper procedural vehicle. It also refused to address the application for judicial review.
All the criteria to address the issues raised by the appellant were satisfied. There was no reason to deny the appellant constitutional remedies by applying a rigid procedural approach. It was incumbent upon the Superior Court to address the merits of the constitutional issues raised by the appellant and the remedies she sought. The lower court having refused to do so, it now appears that doing so falls to this Court.
The Regulation’s dress code does not set out a general prohibition on wearing religious clothing in a courtroom. In application of the principles in Loyola High School v. Québec (Attorney General) (S.C. Can., 2015-03-19), 2015 SCC 12, SOQUIJ AZ-51159893, 2015EXP-928, J.E. 2015-497,  1 S.C.R. 613, and in R. v. N.S. (S.C. Can., 2012-12-20), 2012 SCC 72, SOQUIJ AZ-50923244, 2013EXP-15, J.E. 2013-8,  3 S.R.C. 726, such clothing may be worn there when the practice is the result of sincerely held religious beliefs and it does not conflict with or harm overriding public interests. This solution affirms the appellant’s right to freedom of conscience and religion while preserving the jurisdiction of the judges of the Court of Quebec to intervene if circumstances warrant.
Unofficial English transaltion:
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