Ontario’s highest court has quashed a judge’s order that required a Muslim woman to remove her niqab while testifying at the trial of two male relatives accused of sexually assaulting her.
However, in its 3-0 decision Wednesday, the Ontario Court of Appeal stopped short of saying the woman can give evidence in front of a jury with most of her face shielded by a head scarf.
Instead, the court opened the door to a more thorough inquiry by a preliminary hearing judge, saying the woman, who can be identified only as N.S., should have been allowed to explain the connection between her religious beliefs and the wearing of he niqab and to demonstrate the sincerity of those beliefs.
The case is the first time a Canadian appeal court has dealt with the contentious issue and the court emphasized Wednesday that requests to have witnesses remove their niqabs must be considered on a case-by-case basis because the subject does not lend itself to any “bright line” rule.
Writing for the three-judge appeal panel, Justice David Doherty also endorsed the legitimacy of arguments that the ability of the accused men to make full answer and defence to the charges could be impaired if N.S.’s facial expressions cannot be scrutinized while she is giving evidence.
“Where the case turns on the witness’s credibility, it must be conceded that the jury will lose some information relevant to the witness’s credibility if the witness is allowed to wear her niqab,” he said. “The extent of that loss is open to debate.”
“However, in a jury case, it is the jury’s obligation and no one else’s to evaluate demeanour and determine the extent to which it impacts on the outcome,” Doherty added. “Where the credibility of the witness is virtually determinative of the outcome, denying the jury full access to that witness’s demeanour could be seen as detracting from the accused’s right to trial by jury.”
Almost two years ago, a judge presiding at the preliminary hearing of N.S.’s cousin and uncle ordered her to remove her niqab while testifying, finding her assertion that she wears the veil for religious reasons was “not that strong” and open to exceptions.
In its decision Wednesday, the appeal court said the preliminary hearing judge, Justice Norris Weisman, erred in law by focusing too much on the fact that N.S. had agreed to be photographed without her niqab for her driver’s license and that she had testified it was simply a matter of her being “more comfortable” with it on.
Apart from constitutional considerations, it is important to remember what is at stake “in human terms,” Doherty said in Wednesday’s decision.
“N.S. is facing a most difficult and intimidating task. She must describe intimate, humiliating and painful details of her childhood. She must do so, at least twice, in a public forum in which her credibility and reliability will be vigorously challenged and in which the person she says abused her is cloaked in the presumption of innocence.
“The pressures and pain that complainants in a sexual assault case must feel when testifying will no doubt be compounded in these circumstances where N.S. is testifying against family members,” Doherty said, writing on behalf of Justices Michael Moldaver and Robert Sharpe.
“It should not surprise anyone that N.S., when faced with this daunting task, seeks the strength and solace of her religious beliefs and practices.”
On the other hand, her uncle, who wants her head scarf removed, is facing serious criminal charges, Doherty added.
“If convicted, he may well go to jail for a considerable period of time. He will also wear the stigma of the child molester for the rest of his life.
“No one can begrudge (his) insistence that his lawyer have available all of the means that could reasonably assist in getting at the truth of the allegations made against him.”
The face covering has become a contentious issue internationally.
Last week, the top legal authority in France, the constitutional council, approved a law that would ban the wearing of the niqab in public, the final step before the legislation can take effect, likely early next year.
The ban would probably be unenforceable in mosques or other places of worship, the council said.
Meanwhile, an Angus Reid poll earlier this year found a majority of Canadians are behind a proposed Quebec law that would refuse government services to women wearing a niqab or burqa.
In Ontario, one of the two men charged with sexually assaulting N.S. when she was a child argued the ability to confront his accuser and to assess her demeanour is a crucial component of defending himself.
He was supported by the Muslim Canadian Association and the 1,000 members of the province’s Criminal Lawyers Association, which intervened in the case.
But a prominent women’s organization, LEAF, which also made submissions to the court, argued that requiring N.S. to remove her niqab would be a form of “undressing” at the behest of the accused and would force her to relive the crime.
“At a personal level for niqab-wearing women, such an order may very well be experienced as public stripping and nakedness,” the organization, more formally known as the Women’s Legal Education and Action Fund, said in a written argument filed with the court.
During oral arguments in June, Justice Michael Moldaver, a member of the three-judge appeal panel, suggested that accused persons might also be keenly aware that if a complainant is ordered to remove her niqab, she might refuse to testify, causing the Crown’s case against them to collapse.
In August, a judge in a similar case in Australia ruled that a Muslim woman must remove her burqa so a jury at a fraud trial can assess her facial expressions.
The case became an issue in the recent Australian election campaign, with Prime Minister Julia Gillard, a lawyer, saying the courtroom is one of the few places the covering should be removed.
In that case, the witness had not been seen in public without her burqa for 19 years and the prosecutor argued that ordering her to appear without it would cause immense stress and have a negative impact on the trial.
Judge Shauna Deane of the Perth District Court said that while she understood it would place the woman in an unusually vulnerable position, her decision to wear the burqa was based on modesty and “personal preference” and was not a religious requirement.
The judge also instructed Crown and defence lawyers to discuss ways to minimize any discomfort the witness might experience while giving evidence, such as arranging for her to testify by video link.
While screens have been used in Canadian courtrooms to shield witnesses, particularly children, they are designed to block the witness’s view of the accused — not vice-versa.
N.S.’s lawyer, David Butt, argued that how a person looks when answering questions isn’t useful in determining whether the person is telling the truth, so nothing would be lost if N.S.’s face cannot be seen.
“Poker is an interesting game precisely because demeanour can be so misleading,” Butt said.
The Canadian Civil Liberties Association agreed. Courts regularly accept testimony from witnesses whose demeanour can only be partially observed, said its lawyers, Bradley Berg and Rahat Godil.
“The right to make full answer and defence is not infringed when a witness is blind, or when a witness’s mouth occasionally twists into a grimace due to a congenital defect,” they say in their material.
But in an affidavit, Jack Pinkofsky, a lawyer for one of the two men charged with assaulting N.S., maintained that observing the reactions of a witness could have a bearing on the defence.
“I might conclude, easily, that the witness is prevaricating, the witness is not being forthright and I may want to explore that area further.”
The law and the niqab
The niqab, the face covering worn by Muslim women, is likely the most controversial article of clothing in Canada and Europe. Some countries have banned it; others, such as Italy, are contemplating legislation to make the veil illegal in public places.
Here’s how the veil has played out in other jurisdictions:
Australia: A judge ordered a young Muslim woman to remove her veil while testifying in court in Perth this August, the first case of its kind in that country.
She was a prosecution witness in a case against the director of a company that ran a Muslim women’s college in Perth; the director was accused of inflating the number of students at the school in 2006 and 2007 to claim hundreds of thousands of dollars in grants.
The case drew national and international attention, igniting debate on whether the niqab should be banned in the country.
Shauna Deane, the judge in the case, said her decision applied only to this case and she wasn’t setting a precedent for other courts.
It is estimated a couple of hundred women wear the niqab in Australia.
France: After months of strident debate, France recently banned the Islamic veil in public, including in courts. It is the first European country to pass the law, which will come into effect in spring.
The legislation forbids face-covering Muslim veils in all public places in France and calls for $196 fines or citizenship classes, or both. The bill is also aimed at husbands and fathers. Anyone convicted of forcing someone else to wear the veil risks a year in prison and a $39,000 fine.
Opponents have said they could take the law to the European Court of Human Rights.
About 5 million Muslims live in France. While the ordinary head scarf — hijab — is common in France, fewer than 2,000 women are believed to wear veils.
Belgium: In April, the lower house of Parliament approved legislation that would make it a crime to wear in public “clothing that hides the face.”
It still has to be approved by the upper house and if it becomes law, would automatically apply to Belgian courts as well.
Under the proposed law, those flouting the ban face a small fine or seven-day jail sentence.
About 400 of Belgium’s 280,000 Muslims are believed to wear the niqab or burqa.
Spain: While Spain’s parliament rejected a proposal to ban the niqab or burqa in public places in July, in an upcoming bill the Socialist government has said it favours a ban on wearing the veil in government buildings.
But the Spanish city of Lleida barred women from wearing face-covering veils inside its municipal buildings, including courts, in May. The northern city — population 135,000 — was the first in that country to do so.
At least eight other cities and communities, including Barcelona, have already banned the full face veil in public buildings.
Syria: The predominantly Muslim country banned face-covering veils from the country’s universities in July.
The ban includes women wearing niqabs and burqas but not the hijab.