IF YOU WANT SHARIA, THEN HAVE YOUR CASE HEARD IN A SHARIA COURT. THIS IS CANADA, IF YOU WANT CANADIAN JUSTICE, THEN YOU ABIDE BY CANADIAN LAW.
Credits: REUTER/Mohamed Abd El Ghany
MICHELE MANDEL | QMI AGENCY
TORONTO — In a highly anticipated decision, a Muslim sexual complainant known as N.S. has been told she must remove her niqab when she testifies at a preliminary hearing.
But the 37-year-old Toronto woman says she will once again go to court to have the decision overturned.
In the first judicial ruling since the Supreme Court of Canada instructed judges to do a case-by-case analysis, Justice Norris Weisman balanced N.S.’s “sincere and strong” religious belief against the rights of the accused to have a fair trial, and decided the devout Muslim must uncover her face when she is in the witness box.
Wearing her niqab, he feared “will impair accurate assessment of her demeanour and credibility, resulting in wrongful convictions, loss of freedom for the accused, and loss of public respect for the justice system,” Weisman ruled.
It’s a setback for N.S. who has been fighting to wear her niqab since her accusations of historical sexual abuse against two relatives first went to court in 2008 and Weisman told her she had to remove her veil.
She took the case all the way to the Supreme Court which last year ruled that it should return to the original judge for a four-part test that includes balancing the sincerity of her religious belief against the rights of a fair trial.
“She’s very disappointed but she’s not surprised,” her lawyer David Butt said.
Butt said he will seek to have the decision overturned by the Ontario Superior Court in his application for certiorari, an extraordinary remedy when a judge exceeds his jurisdiction at a preliminary hearing.
He contends Weisman erred when he refused to hear “20 years of scientific evidence that demeanour assessment is faulty at best.”
Douglas Usher, defence lawyer for one of the accused men, welcomed Weisman’s ruling.
“It affirms the necessity of secular and rational values in our court system,” he said.
But he was disappointed to hear N.S. will challenge the decision in Superior Court, meaning the preliminary hearing — scheduled to resume April 29 — will, once again, be delayed.
“It’s very unfortunate,” he said. “You can imagine the stress of having these charges over your head for so long. He’s anxious to have the matter over.”
Enzo Battigaglia, who represents the second accused, was also pleased that N.S. must testify without her religious veil, especially because she is the sole witness against the men and being able to see her face and judge her credibility is vital.
“In this case, it really is the only issue.”
The judge acknowledged that removing her niqab in public could be so emotional for N.S. that it may affect her testimony and could result in a wrongful acquittal.
But he felt the danger to the accused if she doesn’t take it off is even more critical, especially when her testimony is key.