Lawyers in an Ontario courtroom are trying to convince a judge that their clients’ rights are being trampled because of a niqab, or face veil.
A Muslim woman identified only as ‘N.S.’ alleges that her uncle and another man sexually assaulted her. When the case first landed in front of Ontario Court Justice Norris Weisman’s court in 2008, he ruled that N.S. would have to remove her niqab before giving testimony. She appealed that ruling to the Supreme Court.
While Canada’s highest court could have delivered a clear decision that would have to be followed across the country, the top judges instead provided a four-part test that all other courts should follow – on a case-by-case basis – when it comes to face coverings.
The Supreme Court said it has faith in lower court judges to measures the pros and cons of veils in each particular case. Weisman is now being lobbied by lawyers for N.S. and the accused during a voir dire – a trial within a trial – before he decides if the Crown’s key witness’s religious preferences trump the need for those in the courtroom to see N.S.’s facial reactions during her testimony.
The lawyer for the accused has already suggested that N.S.’s desire to wear the veil is related to her own comfort more than to her religion. N.S.’s lawyer has pointed out that the lower half of a person’s face does not provide all the cues to their truthfulness. And as you might expect, both positions have ring of truth to them.
Because Weisman has been tasked with deciding the appropriateness of the veil, this is new ground for our courts. Weisman is in a position where he must assess how strongly N.S. feels about a requirement she infers from a religious text.
It appears justice is about to become two-tier, reaching far beyond religious accommodation to allow religious books to decide the basic building blocks of our legal system.
Where will Weisman or any other judge stand if someone enters their court and proclaims they follow their own religion, or have received direct instruction from their god, that says they must give evidence from beneath a duvet or that they have been instructed by God to say nothing? Would a judge decide the witness’s chosen religious observance is less legitimate than a veil, and in effect pass judgment on the legitimacy of a whole religion?
If a fair and accurate decision is going to be made anywhere in Canada, let it be in our courts. And let that decision be made with all the best evidence, including the reaction of witnesses to questions posed by lawyers.
This is not a question of squelching religion; you may have your religion and allow it to rule your life everywhere, but not in a courtroom. In court, the truth must prevail.