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Lysiane Gagnon (LaszloMontreal.com)

Lysiane Gagnon



A veiled witness obstructs justice Add to ...

A camel, goes the saying, is a horse designed by a committee. That’s an apt metaphor for the Supreme Court of Canada’s decision last month on whether a woman should be allowed to hide her face behind a niqab while testifying in a courtroom.

The court was split, and the four-member majority finally reached a compromise – but what’s a compromise that is unworkable and that will achieve nothing but a further muddling of the issue?

Incredibly, lower court judges will be required to determine the strength of the religious belief of the witness before deciding whether the witness can keep her niqab on. Why should judges be invited to probe into a person’s deepest convictions on matters that have nothing to do with the trial over which they’re presiding? In itself, this is an intolerable intrusion into private life.

But the Supreme Court did not stop there. Lower court judges will be subjected to a series of painful checks bordering on the ridiculous. For instance, if there’s no absolute proof that the right of the accused could be compromised by a niqab-wearing witness, the trial judge would have to take into consideration the “social context” and “the broader social harms” – whatever that means.

Chances are that, at the end of the day, most trial judges will just let witnesses hide behind their niqab to be spared the trouble of morphing into amateur sociologists/theologians and risk having their verdict struck down by an appellate court.

Far from being, as some say, a good old “Canadian compromise,” the Supreme Court’s decision is a pusillanimous surrender that tramples on a fundamental principle of Canada’s justice system: that everyone should be equal before the law and that, as dissenting Mr. Justice Louis LeBel wrote, “unbridled cross-examination lies at the core of trial proceedings.” This principle, of course, includes the possibility of evaluating the credibility of a witness by her facial expressions.

By contrast, the arguments of Madam Justice Rosalie Abella, who supports the unfettered right to wear a niqab, are intellectually weak, to say the least. She says courts accommodate the special needs of witnesses who suffer from various handicaps. This is a ludicrous comparison. A niqab is not a handicap – it’s something a woman inflicts on herself, a personal choice for which she must bear the consequences. Would a man be allowed to testify wearing a mask?

As a matter of fact, the complainant in the Toronto sexual-assault trial that prompted the Supreme Court decision has acknowledged that she would take off her niqab when she finds it convenient – to obtain a driver’s licence, for example, or board a plane. Isn’t the justice system at least as worthy of respect as airline security rules?

Why should Canadian courts adapt to the customs of various fundamentalist groups (or, why not, of people who argue the sect they belong to is a religion)?

Many Muslims insist that the Koran doesn’t force women to veil their faces and that this rule comes from a radical interpretation of the sacred book. In any case, whether or not the niqab is true Islam, there should be a limit to multiculturalism – a limit dictated by plain common sense and also by the need to maintain the neutrality of the state’s institutions, the best way of guaranteeing religious freedom in a civil society. This is why judges and Crown prosecutors do not exhibit religious signs in court.

Of course, witnesses are not bound by the same rule, and are free to wear a cross or a kippa or a hijab – as long as their faces are not masked.

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