A judge has ordered a Toronto woman to testify without her niqab at a sexual assault trial – raising the thorny issue of whether Muslim women should be allowed to appear as witnesses wearing a veil that covers everything but the eyes.
The issue is a collision of two rights, pitting religious freedom against the right of a defendant to face an accuser in open court.
The case could be precedent setting because it doesn't appear there is any Canadian case law addressing the question of Muslim women in the courtroom. In Canada, home to about 580,000 Muslims, the case will be closely watched, amid fears about Muslim women coming forward in criminal cases.
In October, Ontario Court Justice Norris Weisman reached his "admittedly difficult decision" to force the complainant to testify with her face bared after finding her "religious belief is not that strong ... and that it is, as she says, a matter of comfort," he wrote in his ruling.
Lawyer David Butt is representing the woman and next month in Superior Court will argue that the Oct. 16 ruling should be overturned.
"For complainants in sexual assault cases, courtroom testimony is extremely difficult and often traumatic," he said last week. "During such times of great anxiety the courts should respect religious rights and practices that bring comfort and sustenance, particularly when they do not undermine the fairness of the proceedings."
When the complainant indicated last fall she wanted to wear her veil while testifying at the preliminary hearing, defence counsel told the judge that assessing her demeanour was of "critical importance" when tailoring questioning.
Weisman asked the woman to explain her objections.
"It's a respect issue, one of modesty and one of ... in Islam, we call honour," she replied. "It's also about the religious reason is to not show your face to men that you are able to marry. ... I would feel a lot more comfortable if I didn't have to, you know, reveal my face."
The woman also said only her family sees her without the veil.
Butt, who was granted standing at the hearing last fall, argued the judge must consider the Charter which protects religious freedom when making his decision. Butt argued the accused can hear her voice and inflection, see the expression in her eyes and body language.
In his judgment, Weisman wrote "at the 11th hour we learned ... she has a driver's licence with her unveiled facial impression upon it." She told court she took comfort the picture was taken by a female and there was a screen between her and potential male onlookers.
But Weisman wrote the "driver's licence can be required to be produced by all sorts of males," such as police officers and border guards.
"In investigating just how important a belief this was, it came down to her candid admissions that it was a matter of her being `more comfortable' and to me that really is not strong enough to fetter the accused's rights to make full answer and defence," the judge added.
Thanks to a publication ban and the nature of the charges, the names of the complainant and the two accused cannot be published.
Debate about Muslim women and head coverings has surfaced in recent years over girls wearing the hijab to play sports and whether voters must show their faces.
While Justice Weisman was asked to rule at the outset of the preliminary hearing, which is now on hold, the matter was put over and arguments in Superior Court are now scheduled for March 2. Defence lawyer Hilary Dudding will appear on behalf of one of the accused men. She declined to comment.
A relative of the woman said it's distressing the judge has exceeded his "jurisdiction and ventured into the interpretation of religious laws concerning the veil, not to mention the fact that ... (she) has observed the veil for many years in accordance with her" beliefs.
"This is primarily an issue of protection the court offers to victims of sexual assault – especially those from minority communities, who experience the added stigma of bringing these deeply personal issues into open court."
Alia Hogben, executive director of the Canadian Council of Muslim Women, said, in court "the laws of the country should be acceptable," and although it is important that "sensitivity be shown ... showing the face is acceptable."
In the United Kingdom, a panel of judges drafted guidelines in 2007 that said Muslim women should be permitted to wear the niqab, as long as it does not interfere with the administration of justice, according to the Equal Treatment Advisory Committee of Britain's Judicial Studies Board. "Such decisions, however, should be made on a case-by-case basis," the committee said.
Forcing a woman to choose between taking part in a court case or removing her veil could affect her sense of dignity, exclude and marginalize her, the guidelines said.
Commentary by the Ottawa Mens Centre
Feminists are generally solely concerned with making a victim look more of a victim and maximizing the chances of a conviction, and it works. Judges attend feminist training classes that paint all men as abusers.
Skilled Criminal Lawyers may be an accused's only hope and he or she will be assisted by being able to observe the "witness", Society is now brainwashed to call the complainant "the victim" , it predisposes that the accused is guilty and calls the complainant "the victim".
If women are allowed to ear "the veil" you might as well have "the witness" testify by telephone or make a “Sheffield Order” a criminal conviction on quadruple hearsay affidavit evidence without even a trial.
If the superior court overrules this decision of Justice Weisman we can expect a massive flood of religious conversions immediately before victims are due to testify.