The Vancouver Sun

Wearing of Muslim veil to be decided on case-by-case basis: Ontario court

By Shannon Kari, National Post October 13, 2010 12:28 PM
A Muslim woman wearing a niqab.

A Muslim woman wearing a niqab.

Photograph by: Christopher Furlong, Getty Images

TORONTO — The right of a Muslim woman to wear a niqab while testifying in a criminal proceeding in Ontario will be determined by judges on a case-by-case basis, the province’s highest court has decided.

The Ontario Court of Appeal set out a framework for lower court judges to apply in balancing the fair trial rights of a defendant against the religious freedoms of a woman who wants to wear a veil that covers everything but her eyes.

The decision issued Wednesday is the first time an appellate level court in Canada has considered the controversial issue of whether a witness must remove her veil. Yet, the Ontario Court of Appeal stressed that it was not about to weigh in on the debate or issue what it called a “bright-line” rule that would apply in all cases.

“The wearing of a niqab in public places is controversial in many countries, including Canada,” wrote Justice David Doherty. “The controversy raises important public policy concerns that have generated heated debate. Those difficult and important questions are not the focus of this proceeding and cannot and should not be resolved in this forum,” wrote Doherty.

Instead, judges must conduct an “inquiry” into the assertion by a witness that it would offend her religious beliefs to remove the Muslim veil and also to “reconcile competing interests” in a trial, the appeal court said.

“Obviously, these diverse interests cannot all be given full voice. The reconciliation process does, however, demand that each be acknowledged and considered in the courts (in) arriving at an appropriate order,” wrote Doherty, with justices Robert Sharpe and Michael Moldaver concurring.

The decision to require a witness to explain her religious beliefs to the court was welcomed by Tyler Hodgson, who represented the Muslim Canadian Congress at the appeal court hearing earlier this year. The Muslim group suggested that the wearing of the niqab was more of a political statement than a religious requirement.

“The court has said there is no presumption that a witness will be allowed to wear the niqab,” said Hodgson. “The inquiry is mandatory,” he added.

The Court of Appeal stressed that any inquiry into religious beliefs must be limited to whether it is “sincerely held” by the witness. “The court will not enter into theological debates,” wrote Doherty.

If the beliefs are found to be sincere, a judge must then determine if wearing the niqab will violate the fair trial rights of the defendant, including the right to see the face of an accuser in court.

“If the judge were to conclude, in the specific circumstances of a given case, that allowing the witness to wear her niqab did not interfere with her cross-examination, or interfered only to a minimal extent, the accused’s right to make full answer and defence would not be engaged,” the three-judge panel stated.

The ruling was issued nearly two years after the preliminary hearing of two Toronto men charged with sexual assault, was stalled over whether their alleged victim, known only as N.S., could wear a niqab in court.

The 32-year-old woman is alleging that the defendants, who are her uncle and a former family friend, abused her when she was a child.

The provincial court judge presiding over the preliminary hearing ordered the woman to remove her niqab. Her religious sincerity was questioned by Judge Norris Weisman because she was uncovered in a driver’s licence photo, which could be seen by men.

In its decision, the Court of Appeal ruled that Weisman placed too much emphasis on the photo and asked him to conduct a new inquiry when the preliminary hearing resumes.

“A court cannot, however, reason that because a person has made exceptions to her religious beliefs in the past, or perhaps has simply failed to follow her religious beliefs in the past, that her present assertion of those beliefs is not sincere,” wrote Doherty.

David Butt, who represents N.S., praised the decision.

“The court has given guidance on how to balance competing rights,” said Butt, who added that his client is pleased with the ruling. “We don’t mind some respectful questions in court,” about the wearing of the niqab in court, said Butt.

He stressed that the decision rejected the arguments of the Muslim Canadian Congress, the Ontario Criminal Lawyers’ Association and the defendants, that a complainant in a criminal case should never be permitted to cover her face with a niqab.

The decision is binding only in Ontario and Hodgson suggested that it may apply only to criminal trials and not to other court proceedings.

“It would not surprise me though to see this go to the Supreme Court of Canada,” he observed.

National Post

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  1. Who the hell do they think they are dictating to the people of Canada that 1) these invaders are even allowed into Canada 2) that these invaders can have more than one wife who are in turn supported by our tax dollars and that 3) they are allowed to conceal their faces in public?
    I am irate and so should everyone be. These invaders are dictating to us what is acceptable in our own country and our courts & politicians are helping them.

    Why aren’t you contacting your representatives? Are you too lazy or just too stupid to see the writing on the wall?

    Again, stupid dhimmis bow to the enemy.

    There is nothing to consider here except the fact that no one , absolutely no one should be allowed to conceal their face in public anywhere in Canada period.

  2. We boast some of the coldest winters in Canada and there isn’t a judge from BC to NF that would tolerate us keeping a scarf over our face while testifying…

    This veil bs is nothing more than a show of defiance towards our legal system!

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