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SCOC rules judges may order witnesses to remove niqab

OTTAWA — 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 Dec 20, 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 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."

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."

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?"