A witness can wear a niqab in some cases, Supreme Court rules in split decision
Mike Blanchfield, Canadian Press | Dec 20, 2012 10:21 AM ET | Last Updated: Dec 20, 2012 11:55 AM ET
AFP / Getty Images files
The Supreme Court of Canada has
ruled that a witness can — in certain circumstances — wear a religious
veil known as a niqab while testifying in court. In a split decision,
the court affirmed both an accused person’s right to a fair trial and
the right to religious freedom.
OTTAWA — The Supreme Court of
Canada has ruled that a witness can — in certain circumstances — wear a
religious veil known as a niqab while testifying in court.
In a split decision, the court affirmed both an accused person’s right to a fair trial and the right to religious freedom.
The controversial issue, which has divided the Muslim community, has reared its head in recent years, leading to a new law in Quebec for public sector workers and new federal immigration rules that ban face coverings while taking the oath of citizenship.
In this latest case, a Muslim woman sought to wear a niqab while testifying against two men she claims sexually assaulted her when she was a child.
Due to a publication ban, the woman can only be identified as N.S.
The two accused claim the Charter of Rights and Freedoms allows them to confront their accuser and observe her facial expressions as she testifies.
But the woman’s lawyers say facial expressions can be misleading, and add that Islamic sexual assault victims will be leery about going to police if they’re barred from wearing a niqab while testifying in court.
In a preliminary hearing in 2008, N.S. said she cannot show her face to any men who are not close relatives.
When the judge ordered her to remove the niqab, she refused.
The case made its way through the Ontario court system and was heard a year ago by the Supreme Court.
During the appeal hearing last year, the woman’s lawyer faced tough questions from the high court justices.
Justice Morris Fish was among the judges who suggested there isn’t a single defence lawyer who would agree to allow a witness to testify against their client without their face being clearly visible.
Chief Justice Beverley McLachlin said there is no half-way measure that would reconcile the right to an accused to a fair trial and the right of N.S. to cover her face during a trial.
“Do you wear half a veil?” she asked. “Do you put a screen up? It is very hard to reconcile values that are oppositional.”
There is an ongoing debate among Muslim community leaders and scholars as to whether the niqab is truly required by the faith.
“There should be no legal presumption that a witness that wears a niqab in a courtroom is doing so for a religious reason,” argued Tyler Hodgson, the lawyer for the Muslim Canadian Congress, which was granted intervener status in this case.
In a split decision, the court affirmed both an accused person’s right to a fair trial and the right to religious freedom.
The controversial issue, which has divided the Muslim community, has reared its head in recent years, leading to a new law in Quebec for public sector workers and new federal immigration rules that ban face coverings while taking the oath of citizenship.
In this latest case, a Muslim woman sought to wear a niqab while testifying against two men she claims sexually assaulted her when she was a child.
Due to a publication ban, the woman can only be identified as N.S.
The two accused claim the Charter of Rights and Freedoms allows them to confront their accuser and observe her facial expressions as she testifies.
But the woman’s lawyers say facial expressions can be misleading, and add that Islamic sexual assault victims will be leery about going to police if they’re barred from wearing a niqab while testifying in court.
In a preliminary hearing in 2008, N.S. said she cannot show her face to any men who are not close relatives.
When the judge ordered her to remove the niqab, she refused.
The case made its way through the Ontario court system and was heard a year ago by the Supreme Court.
During the appeal hearing last year, the woman’s lawyer faced tough questions from the high court justices.
Justice Morris Fish was among the judges who suggested there isn’t a single defence lawyer who would agree to allow a witness to testify against their client without their face being clearly visible.
Chief Justice Beverley McLachlin said there is no half-way measure that would reconcile the right to an accused to a fair trial and the right of N.S. to cover her face during a trial.
“Do you wear half a veil?” she asked. “Do you put a screen up? It is very hard to reconcile values that are oppositional.”
There is an ongoing debate among Muslim community leaders and scholars as to whether the niqab is truly required by the faith.
“There should be no legal presumption that a witness that wears a niqab in a courtroom is doing so for a religious reason,” argued Tyler Hodgson, the lawyer for the Muslim Canadian Congress, which was granted intervener status in this case.
Labels: Canada, Crisis Politics, Culture, Defence, Human Relations, Islam, Justice
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