A Muslim sexual-assault complainant has conceded that trial judges ought to be able to question the degree of a woman's faith before allowing her to testify in a niqab.
"Speaking for my client, I do not have a problem with a couple of respectful questions," lawyer David Butt told the Ontario Court of Appeal on Wednesday. "A little bit of understanding can go a long way."
The 32-year-old woman, known only as N.S., was ordered to remove her niqab at a preliminary inquiry last year so that defence counsel could assess her claims to have been molested from 1982 to 1987. The woman resisted on the basis that her religion prevents her from exposing her face to non-family members.
Mr. Butt told the appeal judges that a couple of strategic questions, posed in a respectful manner, would quickly establish the extent to which a witness feels a heartfelt obligation to wear her niqab in public.
The likelihood of a Muslim witness lying about their faith is remote, Mr. Butt said, "but if you later go on Facebook and see her partying downtown with 300 or 400 of her closest friends - not wearing a niqab - that could be relevant."
The three-judge panel reserved judgment in the appeal after showing interest in a compromise that would respect Muslim women without seriously curtailing the right of a criminal defendant to face his accuser.
At one point, Mr. Justice David Doherty expressed frustration that the issue ever boiled into a major legal debate at all. "These agendas people bring make everything so complicated," he said. "Why can't it just be: 'Why are you wearing a veil?' 'It's my religious practice.' 'Then, let's go on.' "
Susan Chapman, a lawyer for the Women's Legal Education and Action Fund, ended the two-day appeal by imploring the court to grant Muslim women an absolute right to wear a niqab.
"We cannot conceive of a scenario in a sexual assault case where a niqab-wearing witness should be stripped of it," Ms. Chapman said.
She bemoaned the fact that the appeal has focused largely on religion rather than the trauma that a sexual-assault complainant would feel being stripped of her niqab in court.
"It is no coincidence that this is a sexual-assault case," Ms. Chapman said. "This is the last case in the world where the court should be ordering a woman, over her objections, to remove her clothing."
The Supreme Court of Canada has made it abundantly clear that courts should be very wary of trying to judge an individual's religious feeling, Ms. Chapman said.
"The Supreme Court showed anxiety about courts conducting religious inquisitions," she said. "Inquiring [about a witness's faith]has real potential to become a virtue-testing exercise. This will have a chilling effect on the willingness of women to come forward."
Ms. Chapman also played down the worth of conclusions that are based on assessing a witness's facial expressions.
The nuances of expression vary wildly from one person and culture, to another, she said.