You could almost pity the Toronto judge who had to decide whether a Muslim woman could wear her niqab (face veil) while testifying as the alleged victim in a sexual-assault case. Faces matter in our legal system, and yet no one – not even the Supreme Court of Canada – had been willing to say in clear terms that, when a fair trial is at stake and no accommodation is possible, a witness’s face should be bare when testifying.
So Ontario Court Judge Norris Weisman had to say it. The niqab “masks her demeanour and blocks both effective cross-examination by counsel for the accused and assessment of her credibility by the trier of fact.” It was inevitable. It was the line that was waiting to be spoken through six years of legal challenges. Being bare-faced in court is a bona fide requirement in a democratic society, just as it is at border security points – the same woman said she would take off her niqab for border checks.
It speaks to Canada’s tolerant and accommodating spirit that the courts have struggled mightily with this issue. The Ontario Court of Appeal, when it heard the case, went so far as to say that men could be virtually barred from the courtroom, if removing a witness’s niqab became necessary. A female judge, an all-women court staff – even, perhaps, a female defence lawyer in place of a male one to handle the cross-examination. The Supreme Court majority rejected that option, but set down a four-part test for balancing religious and fair-trial rights. “The possibility of a wrongful conviction must weigh heavily in the balance.” One would think it would tip the balance. But one would be wrong.
No doubt there will be appeals of Judge Weisman’s ruling back up to the court that created those guidelines. He had to make a decision and he made a fair and, frankly, obvious one. And now Canadian courts should stand by the bona fide requirement, arrived at so painstakingly, so regretfully, that the face of witnesses should be bare for justice to be done.