Case information

Courts – Judges – Judicial ethics – Conseil de la magistrature – Jurisdiction – Judicial independence – Whether Court of Appeal erred in refusing to find that, in context of disciplinary inquiry, requiring judge to justify decision she had rendered was contrary to principle of judicial independence – Whether Court of Appeal erred in refusing to recognize that immediate judicial intervention required, even in context of interlocutory decision by administrative tribunal, because of breach of constitutional principle of judicial independence resulting from fact that applicant was called upon to justify judicial decision she had rendered to committee of inquiry of Conseil de la magistrature – Whether Court of Appeal erred in refusing to recognize that Conseil de la magistrature, after examining complaints against applicant, had obligation to determine whether each complaint was admissible and that if it failed to decide this preliminary issue, committee of inquiry had to do so in limine litis to ensure respect for principle of judicial independence – Courts of Justice Act, CQLR, c. T 16, ss. 256, 263 to 268.

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On February 24, 2015, the applicant, Judge Eliana Marengo of the Court of Québec, refused to hear an application filed by Rania El Alloul on the ground that the clothing she was wearing, namely a hijab, was in violation of s. 13 of the Regulation of the Court of Québec, CQLR, c. 25.01, r. 4. When Ms. El Alloul refused to remove her hijab, the judge suggested consulting a lawyer or postponing the case. In the end, the case was postponed without a hearing date being set. Between February 27 and April 2, 2015, the Conseil de la magistrature du Québec received 38 complaints about the case. On February 3, 2016, it decided to establish a committee of inquiry and referred 28 of the 38 complaints to it. The other 10 complaints, including Ms. El Alloul’s, were dismissed on the ground that they did not raise any breach of ethics. On April 5, the judge served a preliminary application to dismiss the complaints on the ground that the planned inquiry was not within the committee’s jurisdiction and that pursuing it would be a serious breach of the principle of judicial independence. On June 7, 2016, after holding a management conference, the committee’s chairperson sent the judge’s lawyer a letter advising that the committee would hear the application to dismiss the complaints and the merits of the case together at the hearing, which was being postponed to September 2016. Judge Marengo filed an application for judicial review of that interlocutory decision by the committee of inquiry. The Superior Court dismissed the application and the Court of Appeal dismissed the appeal.