More than two years after dozens of complaints were filed against a Quebec court judge who refused to hear the case of a woman unless she removed her hijab in the courtroom, an investigation into the judge's conduct has been suspended.

Judge Eliana Marengo is challenging the legitimacy of the Council of the Magistrature — the body charged with supervising the conduct of judges in Quebec.

Marengo is arguing the council doesn't have jurisdiction to investigate her conduct in this case.

Until that's settled, the Council of the Magistrature says its investigation of Marengo's conduct must be put on hold.

Compared Muslim headscarf  to hat, sunglasses

The story of how Judge Marengo handled the case of Rania El-Alloul made international headlines.

Judge Eliana Marengo

Judge Eliana Marengo is now challenging the legitimacy of Quebec's Council of the Magistrature to investigate her conduct.

El-Alloul was in court in February 2015 for a fairly routine hearing to get her car back after it had been seized by Quebec's automobile insurance board, the SAAQ. 

Before the hearing even began, Marengo told El-Alloul she would not hear her case unless El-Alloul removed her headscarf.

​Marengo contended the courtroom was a secular space, comparing the hijab to a hat and sunglasses, items which are not normally allowed to be worn in a courtroom.

El-Alloul refused to remove her hijab, and her case was never heard.

Dozens of complaints

The case sparked outrage across the country, with many lawyers offering to represent El-Alloul, and strangers offering to cover her legal bills.

El-Alloul — along with dozens of other Canadian, most of whom had no connection to the case — complained to the Council of the Magistrature.

Some of those complaints, including El-Alloul's, were rejected by the council on procedural grounds.  

In February 2016, the council decided to form a committee to investigate 28 remaining complaints. Marengo is challenging the legitimacy of that investigation.

'Serious breach of judicial independence'

Court documents show Marengo argued before the council that her request for El-Alloul to remove her hijab amounted to a judicial decision.  

Marengo contended that if that decision is to be challenged, it should be through an appeal filed with the court, and not through a disciplinary investigation by the Council of the Magistrature.

Marengo argued the council has no jurisdiction to overturn judge's decisions, therefore its review of the case amounts to "a serious breach of the principle of judicial independence."

Marengo mounted a legal challenge of the council's decision to study the 28 complaints. In a decision released in February 2017, a Quebec Superior Court justice sided with the council. Marengo then appealed that ruling.

Earlier this month, the Quebec Court of Appeal agreed to hear the case, but no hearing date is likely before the fall.

In the meantime, the council's investigation into all the complaints against Marengo is on hold.

"The proceedings before the council are suspended," said Esther Boivin, a spokesperson for the Council of the Magistrature, said in an email to CBC.  

"The committee will resume its work if the superior courts confirm its competency in this regard."

Delay called 'ridiculous'

Sue Bauman lives in Toronto and has no direct connection to the case, but she filed a complaint with the Council of the Magistrature anyway.

Sue Bauman

Sue Bauman, one of dozens of people who complained about Judge Marengo's order, says the delay in the investigation is 'ridiculous.' (submitted by Sue Bauman)

"A woman wearing a scarf on her head is not something that's objectionable or should be considered improper dress," Bauman told CBC.

Bauman said the the delay in processing her complaint is frustrating.

"I cannot believe that this matter has still not gone to a hearing.  It's ridiculous," Bauman said.

"It's not a complicated fact scenario. There's not any more information that they need to gather. There's a transcript and an audio recording of what happened," she continued.

"Have a hearing! Quickly. Now. Tomorrow. No delays. Have a hearing."