Canadian justice and the niqab

When the priority is justice for all, the question may be accommodation.

by Mehdi Rizvi

In mid-April, the Ontario Court of Appeal applied a controversial four-part test that the Supreme Court handed down last December, to help courts find the balance between laws and religious customs –  notably the question of whether a woman should be allowed to testify in court while wearing a niqab, a veil across her face, so that her expressions are obscured.

The Ontario Court ruled that, in the NS case,  the woman complainant and witness must remove her niqab in court to ensure the two men accused of assaulting her get a fair trial. Muslim women resist uncovering in open court as an affront to their modesty. Yet the decision – and the 2012 Supreme Court four-part test – represents a sincere effort to balance the complainants’ religious and cultural rights against the natural rights of the accused to justice.  

Last December, the Canadian Supreme Court ruled that devout Muslim women who wear niqabs should not invariably be forced to remove them before testifying in court. Instead, the decision to require the witness to uncover her face should be made on a case by case basis, and weighted according to a certain set of criteria. This was a reasoned approach to an emotional issue, where some media fearmongers even wanted the government to pass a law flatly prohibiting women from testifying in Canadian courts with their faces covered.

In fact, the question seems to be a non issue, considering the small number of women who wear niqabs in Canadian courts. We could say instead a veil has fallen over the hearts of those who are mindlessly forging weapons of mass destruction, not by enriching uranium but by sowing seeds of division and hate in Canadian society.

In this particular case,  the Supreme Court’s ruling proved practical enough. After analyzing the evidence, Justice Norris Weisman wrote that, "I conclude that to permit NS to testify at the preliminary inquiry with her face obscured by the niqab will impair defence counsels' ability to assess her demeanour, as well as the [judge’s] ability to assess her credibility."

Notably, Justice Weisman explicitly recognized and respected the Muslim woman's religious beliefs, cultural practices and values.  In his ruling, the judge remarked that her religious belief  “is both sincere and strong” and that removing her niqab in the court room would be emotionally painful for her, but he ruled that letting her testify while wearing it would create a serious risk to the accuseds’ right to a fair trial. He noted that she does remove the veil when required to, such as for driving, and for her driver’s licence.

“When people first accepted Islam as a way of life, they were allowed to continue with their previous tribal and cultural practices, as long as they did not interfere with Islamic laws and principles. Thus, this court ruling needs to be framed as a women’s human rights issue due to culture not religion,” said Zohra Rahman, a criminologist who has been engaging gang-involved youth since 2006 for a program called Breaking the Cycle. 

“Having recently completed my Hajj (the pilgrimage to Mecca), my knowledge of the ‘Islamic’ dress code has increased. While in Mecca I learned that women were required to unveil their faces while completing their pilgrimage,” she said.

Still, she felt that, “For any woman, testifying in high court is an intimidating experience, being scrutinized, cross-examined and often times re-traumatized. This ruling creates more barriers for immigrant women to seek justice. The threat of having to abandon a cultural practice in order to testify in court serves as a deterrent.”

Sofia Aftab, a business woman in Aurora, Ontario, who possesses a civil engineering degree and who performed her Hajj three years ago, said she thinks that justice should prevail, that requiring a witness to remove her niqab in the court makes it easier for the jury to find the truth by reading her facial expressions.   

“As a Canadian citizen,” said Dr Shiva Sadeghi, a lecturer at  the University of Toronto, “I do believe that the right of a citizen to a fair trial is a valid enough reason to ensure (at least to the best of our courts’ abilities) that all factors that might inadvertently taint evidence are accounted for and properly dealt with – even if it means that Muslim women should lift their niqab to face their alleged attackers:  Innocent till proven guilty, as we believe.”

She added, “I disagree that this will infringe upon the rights of minorities and immigrants in Canada . On the contrary, it will only help to protect and strengthen our values of justice and respect for the rights of citizens. I personally believe that the best way of dealing with it is critical education and grass-roots advocacy and not presenting and erroneously defending niqab as a true choice or a cultural/religious belief.”

But Zohra Rahman argues that there may be other ways to accommodate both parties’ rights to privacy and accountability. “The courts should look at alternative ways of ensuring a fair trial for the accused while respecting the cultural practices and beliefs of crown witnesses,” she says.

“The right of the accused to face the accuser in an open court in my opinion is metaphorical. Perhaps if cases in which women are required to unveil their faces were facilitated via video court, the victim would feel more at ease. Further, in cases of a trial by judge only, having a female judge may satisfy the requirements of a niqab-wearing woman to be unveiled.”

“Justice is the spirit of laws,” said Ali Bin Abu Talib, the first Imam and fourth Caliph of Muslims.  Weighing the rights of both accused and accuser, the court tried to find a reasonable way to reach a fair judgement. The Supreme Court of Canada guidelines and the Ontario Court of Appeal rulings demonstrate a sincere effort to find a compromise that results in a fair trial for everyone.

© Copyright 2013 Mehdi Rizvi, All rights Reserved. Written For: StraightGoods.ca