The Supreme Court of Canada will attempt to balance Islamic beliefs against the bedrock elements of a fair trial on Thursday in major clash of constitutional rights.
At the centre of the case is a sexual assault complainant known as N.S., who does not want to testify against two men accused of raping her unless her face is obscured by a religious veil, or niqab.
The defendants assert that the Charter of Rights and Freedoms guarantees them the right to confront their accuser and observe her facial nuances as she testifies.
However, lawyers for N.S. say facial expressions are frequently misleading and that Islamic rape victims will be reluctant to go to police if they may later be ritually “stripped” in a courtroom.
The court case will be decided by just seven of the court’s nine judges because Mr. Justice Michael Moldaver sat on an Ontario Court of Appeal panel that heard the N.S. case earlier this year. (To prevent a tie vote, the court has to drop a second judge from the panel.)
“The niqab case is a perfect storm of issues,” said University of Ottawa law professor Carissima Mathen. “Demeanour has been used in destructive ways against sexual assault complainants. … The difficulty is compounded when a witness observes different cultural cues – avoiding eye contact for example.”
Ms. Mathen said that the notion that an individual’s facial expressions can determine his or her credibility is deeply entrenched in popular belief and legal practice, and will not be easily uprooted.
The Ontario Court of Appeal in a ruling earlier this year proposed a compromise in which a trial judge must inquire into the sincerity of the witness’s religious beliefs, the importance of her testimony and whether the witness has made exceptions in the past to her religious convictions.
Ms. Mathen said that the Supreme Court must avoid determining the case based on interpretations of Islam.
“While some groups and individuals argue vociferously that Islam does not require veiling, this is not the proper question,” she said. “Courts in Canada do not settle questions of religious dogma. So long as someone sincerely believes that wearing a niqab is either required or promotes her faith, it is protected by the Charter.”
She said that how sexual assault complainants are treated is just as important as the conflict between freedom of religion and the right to a fair trial. Unveiling a complainant constitutes another in a never-ending series of attempts by rape suspects to discomfit their accusers, she said.
“It would pervert justice if the niqab became a tool to be used against sexual assault complainants, or if rules were developed which discourage these women from coming forward,” she said.