09 December 2011
The Supreme Court of Canada heard arguments Thursday about whether a Muslim woman accusing her cousin and uncle of childhood sexual abuse should be allowed to wear a full face-covering on the witness stand.
The case, which pits the woman's freedom of religion against the right to a fair trial for the accused, will have national significance for Muslim women in the Canadian justice system.
Joanna Birenbaum, of the Women's Legal Education and Action Fund, said the case will have important repercussions throughout Canada because "if the court requires women who wear the niqab to remove them to testify ... the result will be that niqab-wearing women will not report sexual assaults at all, and the message is that they can be raped with impunity."
The Muslim civil rights group the Canadian Council on American Islamic Relations (CAIR) portrayed the case as one that will decide whether Muslim women -- at least the minority that wear headcoverings--will have equal access to Canada's justice system.
N.S., whose identity is protected by a publication ban, was ordered during a preliminary hearing in Ontario court to remove her niqab, a head and face covering which leaves only a slit for her eyes. She refused and her precedent-setting case has now reched Canada's highest court.
Lawyers for the accused argue that if N.S. is allowed to testify with her face covered, the judge will not be able to determine the truth of her testimony.
However, David Butt, the woman's lawyer, said the benefits of including people of the Muslim faith who wear a niqab outweigh the negative aspects of the face covering, which he says are fairly minor.
"There are certain institutions in our society where it's really important that they take people just as they are - one of those is hospitals, another one is courts. And, unless it's going to seriously interfere with the functioning of the court, we should say, if that's your sincere belief, we're not going to stand in your way," Butt argued.
Douglas Usher, the defense attorney representing one of the accused men pressed for N.S. to testify uncovered, arguing that the face of the witness offers critical clues to a lawyer doing cross-examination, according to the report.
He argued that the veil impinges on a provision in Canada's Charter of Rights that ensures the right of a defendant to face his accuser.
"Speaking for myself, I can say I need to see a witness' face," he said.
Usher also noted N.S. removed her face covering to get her driver's license picture taken. We see her adherence to wearing the niqab has several exemptions," he said.
Another problem with the case is that Islamic Law does not support the woman's right to cover in court. Even Islamic schools of law that encourage or require the face veil dictate its removal in court and under other extenuating circumstances where the identity or testimony of the woman is an overriding concern.
Sheikh Sami al-Majid of Saudi Arabia
's Imam Islamic University, explains: "Scholars who held that view that the face veil is obligatory all agreed that it can be removed when there is a need to do so. There are many cases where a positive identification is needed. This is the case when a person is giving testimony or being testified about in a court of law, or when a man needs to be a witness for the woman in some matter, or in business
where a positive identification is needed - for instance at a bank - or when being questioned by law enforcement officials or when acting in the capacity of a law enforcement official."
The Canadian Supreme Court will release its decision on the case in the coming months.
Teresa Smith, "Supreme Court hears arguments on niqab use" Montreal Gazette
December 9, 2011
"Canada considers: Can rape accuser testify under veil?" NBC
December 9, 2011
Barbara Kay, "Feminists back women as possessions in Supreme Court case" National Post
December 9, 2011