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This Friday Superior Court Justice Frank Marrocco will tackle the question of whether a Muslim woman can wear a niqab - a religious veil that shows only her eyes - while testifying at the preliminary hearing of two men accused of sexually assaulting her.
The issue has been ruled upon once already by Justice Norris Weisman of the Ontario Court of Justice who last fall ordered the woman to testify sans niqab at the men’s preliminary hearing. Weisman noted that she had her driver’s licence photo taken with her face uncovered.
According to media reports, the defence lawyers argued successfully that allowing the woman to testify wearing the veil would infringe on their clients’ fair trial rights. They said they should be able to see the witness’ face so they can weigh her demeanor.
The woman filed a writ of certiorari asking the Superior Court to overturn the ruling.
Meanwhile, the Ontario Human Rights Commission has asked to intervene at the appeal to argue that Weisman didn’t recognize the woman’s religious freedoms. In an affidavit, Barbara Hall, chief commissioner of the body, says the commission can “offer the court assistance and expertise in the area of accommodation particularly in relation to discrimination based on creed or religious belief.”
Well, the commission should keep its nose out of the courts. In this case in particular, the woman’s experienced lawyer, David Butt, is skilled and more than capable of carrying the ball. In fact, he makes some good points in media reports about the case.
The Canadian Press quotes Butt as saying the courts have to balance the right of an accused person to face their accuser with religious beliefs.
“That’s what makes this a very interesting issue for the courts in the sense that we’re balancing two different rights - each of which the Supreme Court has said are equally valid,” he said in the CP story.
“Really, what we’re doing is taking the general principles around respecting
religious freedom on the one hand and according the accused a full defence on the other, and trying to fashion a particularly Canadian outcome that respects both those rights as much as possible,” said Butt in a story on the CTV.ca web site.
And that’s precisely the problem with this issue, for it’s easy to argue on behalf of both sides, therefore we’ll duck that for now and leave it to the courts to decide.
(Although we can’t resist a couple of questions: depending on how this goes, what happens if/when in the future the person on trial wears a niqab? For example, what if identity is an issue? And how does a jury factor in - the box is placed where it is for a reason . . .)
This is considered a “first” in Canada. It probably won’t be the last. We’re confident however the issue is in good hands with the lawyers and judges.
So butt out human rights commission.
- Gretchen Drummie
