It’s one of the more challenging issues the courts have faced recently.
In the sexual assault trial involving a woman identified as N.S., the Ontario Court of Appeal is weighing the importance of an alleged victim’s right to wear the Muslim niqab while testifying against two relatives versus the fair-trial rights of the accused.
Mixed up in the controversy are a host of other issues: Does Islam actually require women to remain veiled in places such as a court? Is it really that important to see a witness’ face in order to assess truthfulness?
Is the case at hand merely a reflection of the broader debate over veils and the sometimes-intolerant attitudes towards them? Would the courts have the same dilemma over head coverings from other religions?
Are sexual assault cases a different type of matter requiring another set of rules to protect victims who might otherwise not come forward?
It’s not going to be an easy matter for the appeal court to rule on. Already, the justices hearing the case have shown some disregard for the trial judge’s ruling that the woman must remove her veil in order to testify.
In the meantime, a number of interveners have waded into the case emphasizing the fair-trial issue and religious-freedoms arguments as well as the special sensitivity surrounding sexual assault victims.
The case comes as the debate over Muslim veils in Canada continues to rage, particularly in light of Quebec’s moves to require people to remove them when accessing public services. But key to dealing with the issue should be an attempt to set out a few guiding principles.
In Britain, such an exercise took place three years ago when an advisory committee released official guidelines saying the courts should allow religious garments such as the niqab as long as doing so didn’t interfere with the administration of justice.
Under that framework, the committee said a judge should carefully consider any order to force someone to remove the veil. At the same time, would alternatives, such as clearing the court of all those not involved in the case or using screens to shield an unveiled woman’s face, address many of the concerns?
Of course, those ideas are a somewhat imperfect answer to the central dilemma of religious freedoms versus fair-trial rights but they’re at least a reasonable starting point that may deal with most of the situations the courts will face.
On the whole, then, what’s needed is a careful consideration of all of the issues. If universities in a country like Egypt could until recently ban the niqab during exams in order to stop cheating, is it unthinkable for Canadian courts to order a woman to uncover in special circumstances?
On the whole, the answers aren’t obvious. Nevertheless, if the court can get beyond the polarization currently characterizing the debate over the niqab, it should hopefully be able to come up with a reasonable solution.
- Glenn Kauth
