Top court rules judges may order witnesses to remove niqab

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 released Thursday, 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 has accused her uncle and cousin of sexually assaulting her when she was between six and 10 years old, during the 1980s. Twenty-five years later, the woman told her story to police and her two male relatives were charged, but the case has not yet gone to trial.

She asked to wear a niqab, a veil worn by some Muslim women that covers virtually all of the face except the eyes, during her testimony, because of what she said were sincerely held religious beliefs.

The Supreme Court ruling is being described as a 4-2-1 decision, given the differences between the judges. 

 Justices Louis Lebel and Marshall Rothstein ruled that she should not wear her niqab at all during testimony.

Justice Rosalie Abella went the other way in dissenting, and would have allowed the niqab except in circumstances where the identity of the witness would be at stake.  

David Butt, lawyer for the Muslim woman, said Thursday his client was "thrilled with the fairness and the balance that the Supreme Court has shown in addressing what has been a very difficult case for the courts to wrestle with." 

Butt, who described his client as a working mother who considers herself a survivor of childhood sexual abuse, said that she is looking forward to going back to the lower court and giving more evidence. Asked by reporters what his client would do if she were ordered to remove her niqab, Butt said that she is not, at this stage, thinking of ultimate outcomes.

Butt said that the highest court has set out guidelines, but that lawyers need examples from real cases. "This will be the first one, it will be a big one, and it will help other women going forward," he said.

The ruling largely upholds criteria established by the Ontario Court of Appeal. 

The Court of Appeal had ruled the woman may have to remove her niqab if her credibility became an issue. It also set out criteria that a judge must consider:

• Whether the veil interfered with the cross-examination.
• Whether the witness would be appearing before a judge only or before a jury.
• The nature of the evidence. 

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.

The case now goes back to the preliminary inquiry stage, where it is possible the woman may be forced to testify with her face uncovered.

The majority judges allowed that "scientific exploration" in future cases about cues given by the face of a witness may enhance or diminish  the arguments made in this particular case. But, they added, "It may be ventured that where the liberty of the accused is at stake, the witness's evidence is central to the case, and her credibility vital, the possibility of a wrongful conviction must weigh heavily in the balance, favouring removal of the niqab."

'The niqab undermines gender equality'

Tyler Hodgson, lawyer for the Muslim Canadian Congress, an intervenor in the Supreme Court case, said that the congress is pleased with the decision. His client, he said, "would probably tell you that the niqab is not something that has its roots in the Islamic tradition, and generally speaking they find that the niqab undermines gender equality."

Hodgson said "our reading of [the decision] is that the majority of times going forward in a criminal setting the witness will likely be asked to remove the niqab." This would be especially true if the evidence was contested, Hodgson said, adding that in a criminal case, evidence is always contested.

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."

But Chapman is bothered by the fact that she feels the defence has been given a big leg-up: "The Supreme Court has said demeanor matters." Chapman said she was disappointed that the top court relied on tradition, in going by the common law practice that faces are seen in a courtroom. 

"We live in a multicultural society. The fact that something is tradition is not an adequate answer to a human rights question," Chapman said.

She also said that now a woman who wears a niqab will have to make a decision: "Do I seek justice or am I going to respect my religion?"

"That's a big price to pay for justice," Chapman said.

Case presented legal dilemma

The case of N.S. presented a legal dilemma: on the one side is a religious belief said to be sincerely held, and on the other, there's the right of an accused to a full defence.

At a preliminary hearing, the woman explained she cannot show her face to any men who are not close relatives. The judge took brief unsworn evidence from her while her face remained covered, but did not allow counsel to examine her or call any evidence. The woman was ordered to remove her niqab in order to testify in court.

She objected to that judge's order and appealed. 

Ontario's Superior Court first ruled, and then the Ontario Court of Apeal upheld a decision that quashed the first judge's order to remove her face covering.

Lawyers for the accused men argued that facial cues "can be significant information that help the observer understand what a witness is attempting to communicate and get a sense of who the witness is and how he or she is reacting to questioning."

The accused men’s lawyers also say that it is not clear whether the woman sees her niqab as a religious requirement, or as "a personal preference and a matter of comfort."

Removed niqab on other occasions

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.

The Muslim Canadian Congress also argued that since  N.S. had willingly removed her niqab for a driver's licence photo, and had testified she would also remove it at a border crossing, then the courtroom also ought to be an exemption.

But, the woman's lawyer argued that having a photograph taken for a driver's licence is not analogous to testifying about intimate sexual details in a courtroom in front of strangers.

"What is religion for if not to bring comfort?" Butt argued.

Butt told CBC that the job of the court is not to be the arbiter of whether the practice of Islam really does require that women be completely covered. Although he conceded many see it as a symbol of female oppression, he thinks an order to remove it is another form of paternalism.

"At the centre is the notion of choice ... some people's choices will be distasteful to others," the lawyer said.