Justices suggest few defence lawyers would accept niqab during trial
OTTAWA - The lawyer for a woman who wants to wear a niqab while facing her accused rapists fielded pointed questions Thursday from justices of the Supreme Court of Canada. The nature of the questions suggested several high court judges believe wearing the niqab during a trial may compromise the right to a fair trial.
Judges, lawyers and juries have long used changes in facial expressions to gauge a witness's credibility while testifying. A niqab covers the entire face, leaving only the eyes visible, making it difficult for lawyers and juries to read any nuances or changes in expression.
An Ontario woman identified only as N.S. says her Muslim faith dictates that she wear her niqab in public, including during the trial of two men who allegedly sexually assaulted her.
David Butt, the lawyer for N.S., told the justices that denying his client's right to wear a niqab would amount to imposing a special religious penalty on Muslims.
"If she were a man, and if she wore a yarmulke, a turban, or a clerical collar, it would be a no-brainer," Butt said in his opening statement.
Butt ran into a salvo of questions from the justices that suggested they did not agree with him.
Justice Morris Fish joined others on the bench in suggesting there isn't a single defence lawyer who would agree to allowing a witness to testify against their client without their face being clearly visible. "Yes," countered David Butt, N.S.'s lawyer. "Blind lawyers that I know."
"How about seeing lawyers?" Fish replied.
There is no half-way measure that would reconcile the right to an accused to a fair trial and the right of N.S. to cover her face during a trial, Chief Justice Beverley McLachlin said.
"Do you wear half a veil?" she asked Butt. "Do you put a screen up? It is very hard to reconcile values that are oppositional."
Two men are accused of raping N.S. as a child. The high court is attempting to chart a course for future cases that would respect an individual's right to religious freedom.
Douglas Usher represented one of the two men accused in the original case. He urged justices to rule against N.S., arguing that trial lawyers depend on the ability to gauge a witness's demeanour through their facial expressions.
"It is the face that determines, in our view, what people are really thinking or feeling when they speak to us," Usher said.
During a preliminary inquiry, a judge ordered N.S. to remove her niqab during testimony. An Ontario Superior court judge overruled the demand.
The Ontario Court of Appeal then sent the case back, offering the judge at the preliminary inquiry a test to apply to the case to determine whether N.S. could be allowed to testify while wearing the veil.
The test included measures to "mitigate the possible impact on the witness's religious freedom," according to Crown lawyer Elise Nakelsky. The measures, to be made available on a case-by-case basis, included excluding the public from the courtroom, using video recordings of testimony and having an all-male or all-female courtroom. "These were not necessarily perfect answers to accommodating the witness in this particular case but might provide some means of accommodating other witnesses in similar circumstances," Nakelsky said. There is an ongoing debate among Muslim community leaders and scholars as to whether the niqab is truly required by the faith.
"There should be no legal presumption that a witness that wears a niqab in a courtroom is doing so for a religious reason," said Tyler Hodgson, intervening lawyer for the Muslim Canadian Congress. The court's ruling will likely have a significant impact on future cases involving religious accommodation in courtrooms.
