Canadian top court rules judges may order witnesses to remove niqab

News Agencies – December 20, 2012

 

A Muslim woman who is the complainant in a sexual assault trial in Toronto has lost her bid before Canada’s top court to have an unimpeded right to wear her niqab while testifying. In a split Supreme Court of Canada decision, the seven judges largely upheld a lower court’s ruling that the woman, known only as N.S. to protect her identity under a court-ordered publication ban, may have to remove her niqab.

The woman, known as N.S.in the court, appealed to the Supreme Court arguing her sincere religious beliefs meant that her face must be covered before all males who are not close relatives. Lawyers for the two men accused of sexually assaulting her when she was a child argued that a fair and open trial means the face of a witness must be seen because facial cues are important to establish credibility.

Susan Chapman, lawyer for LEAF, the Women’s Legal Education and Action Fund, reads the case differently. “The starting proposition here is that she’s entitled to wear it [the niqab] until somebody demonstrates, namely the accused, that it will impact adversely on his fair trial rights …The onus I see is on the accused.”

Part of the court evidence is that the woman did remove her niqab to be photographed for a driver’s licence, in front of a female photographer. Lawyers for the accused men point out that her religious convictions were not so strong that she refused to go through the licensing process, even though the photo could be demanded by any number of police officers who might be men.

 

Globe and Mail Opinion Article on the Niqab in the Canadian Courtroom

In this opinion piece former Muslim Canadian Congress president Farzana Hassan posits that the niqab looms large over an Ontario court as a symbol of Islamist oppression of Muslim women. She is responding to a current debate in the Canadian courts. The Ontario Court of Appeal is debating a test case of a Muslim sexual-assault complainant who insists on remaining both invisible and anonymous, yet needs to testify in court. The woman enjoys support from a motley group of activists who are citing her right to religious freedom. For instance, the Women’s Legal Education and Action Fund (LEAF) cautions against using this case to set a precedent, the feminist group wants the court to accommodate the woman’s request.

Hassan describes the niqab as a symbol of deep-rooted sexism, patriarchal control and inveterate misogyny. She claims it remains the most pernicious symbol of female subjugation, as many believe the niqab greatly stigmatizes and marginalizes women in society.