A Muslim witness may be required to remove her niqab veil to testify in court depending on the seriousness of the case and the sincerity of her religious beliefs, the Supreme Court of Canada ruled Thursday.
The decision means that a Toronto sexual assault trial that was halted during the preliminary inquiry stage will resume, now that the trial judge has instructions on how to assess the complainant’s request to testify from behind her veil.
In its 4-3 decision, the court said there are times when even a significant religious belief must bow to other social and legal concerns.
“An extreme approach that would always require the witness to remove her niqab while testifying, or one that would never do so, is untenable,” Chief Justice Beverley McLachlin said, writing on behalf of several of the judges in the majority.
“The answer lies in a just and proportionate balance between freedom of religion and trial fairness, based on the particular case before the court,” she said. “A witness who for sincere religious reasons wishes to wear the niqab while testifying in a criminal proceeding will be required to remove it if (a) this is necessary to prevent a serious risk to the fairness of the trial, because reasonably available alternative measures will not prevent the risk; and (b) the salutary effects of requiring her to remove the niqab outweigh the deleterious effects of doing so.”
The chief justice said that permitting a witness to conceal her face behind a niqab in all cases would rob accused people of the right to a fair trial. It could also harm public confidence in the justice system, she said.
“However, never permitting a witness to testify wearing a niqab would not comport with the fundamental premise underlying the Charter that rights should be limited only to the extent that the limits are shown to be justifiable,” she added. “The need to accommodate and balance sincerely held religious beliefs against other interests is deeply entrenched in Canadian law.
The Canadian Council on American-Islamic Relations applauded the ruling, calling it a “resounding affirmation” of Muslim women’s decisions to wear niqabs, said lawyer Faisal Bhabha.
“The court made it very clear that people are not required to park their religion at the door, so to speak,” said Mr. Bhabha, who represented the organization at the Supreme Court.
After initially reacting in disappointment, Salma Siddiqui, president of the Muslim Canadian Congress, reconsidered the ruling and praised it for not creating a blanket rule allowing women to wear niqabs in courtrooms. The organization, which was granted intervener status in the case, argued there is no religious requirement behind a Muslim woman’s decision to wear a niqab.
“It has not given a green light that yes, everyone can wear a niqab,” she said. “I don’t think that there is an appetite in the Canadian public for such a debate and waste of taxpayers’ money for the judges to keep on going back” to determine in each case whether women can wear niqabs in court.
Ms. Siddiqui said she believes that the judgment will mean that the woman at the heart of the case will not allowed to wear a niqab while testifying.
The court was faced with the task of balancing religious freedom with the right to a fair trial in a case that erupted after a sexual assault complainant asked to testify from behind a niqab veil.
The key question for the judges was: Can religious ritual and observance trump the right of defendants to a fair trial? While the court has wrestled with religious protections in the past, rarely has a case spawned such a violent clash of principles.
The Toronto complainant – known only as N.S – has been adamant about her religious convictions. At the same time, the right to a fair trial is held as near sacrosanct within the justice system.
To complicate things further, a third principle – the need to make the court system hospitable to rape complainants and members of visible minorities – loomed no less large.
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