Shannon Kari, National Post · Friday, Jun. 4, 2010
A precedent-setting case that could determine whether a woman can wear a niqab while testifying in Canadian courts has a leading feminist group and a national Muslim organization on opposite sides of the contentious debate. But their respective positions, outlined in written arguments filed with the Ontario Court of Appeal, may come as a surprise.
The Women's Legal Education and Action Fund (LEAF) is arguing that an alleged victim of sexual assault must be permitted to wear the Muslim veil if it is part of her religion.
The use of the niqab, which exposes only the eyes of a woman, has come under increasing criticism in Quebec and many European countries, where it has been characterized as a sign of oppression.
The Quebec government introduced legislation this spring to require people to have their faces uncovered when receiving or dispensing public services. French President Nicolas Sarkozy has stated that the burka and niqab are not welcome in that country. In Belgium, a parliamentary committee voted to ban the wearing of the garments in public places.
The case before the Ontario Court of Appeal, which begins on June 8, is part of an ongoing proceeding involving a 32-year-old Toronto woman who alleges she was sexually abused as a child by two male relatives.
In its arguments, LEAF says the paramount concern of the court should be to protect the religious rights and comfort of a female victim of a sexual crime. The feminist organization, which has played a role in many key Charter of Rights cases involving equality issues, stresses it is not taking a position on the use of the niqab in general. Its focus is on the right of an alleged victim of sexual assault "to have access to justice without having to relive being forcibly uncovered." Requiring a Muslim woman to remove her veil while testifying "could very well be seen and experienced as an act of racial, religious and gendered domination," states LEAF.
In contrast, the Muslim Canadian Congress maintains that religious freedoms are not absolute and must be balanced against the long-standing right of a criminal defendant to see his accuser in court and assess demeanour. As well, the Muslim group argues that the Charter should not be used to promote gender inequality. "The covered female face is a reminder to the wearer that she is not free and to the observer that she is a possession," it says.
The founder of the organization, Tarek Fatah, said yesterday that it is not trying to make it more difficult for Muslim women to testify in sexual assault cases. "They should be treated like any other woman and receive the same protections," he said. (The Criminal Code provides for witnesses to testify by closed circuit television or behind a screen where they can be seen, but they cannot see the accused). "This is a misuse of religion," said Mr. Fatah. The wearing of a "niqab" is a "political statement" and an attempt to "thumb your nose" at western cultures, he said.
LEAF counters that fair trial rights are being used as an excuse to justify stereotypes. "In the current political climate of fear and distrust of veiled Muslim women, courts and juries need to be alert to existing prejudices that a Muslim woman who covers her face cannot be believed," writes Susan Chapman, a lawyer representing LEAF.
The case is the first time an appellate court in Canada has been asked to decide if a witness may wear a veil while testifying.
At a preliminary hearing in fall of 2008, Ontario Provincial Court Justice Norris Weisman ordered the woman to testify without the niqab. The decision was appealed and Superior Court Justice Frank Marrocco ruled in April 2009 that there should have been a more thorough hearing to assess the sincerity of the woman's religious beliefs.
The preliminary hearing has now been on hold for nearly 20 months as a result of the various appeals.
IN COURT NEXT WEEK
The debate over wearing a veil in court has led to an unprecedented number of groups permitted to make submissions at the Ontario Court of Appeal hearing.
-Along with LEAF, the Ontario Human Rights Commission and the Canadian Civil Liberties Association have joined to support the woman in her desire to wear the niqab. The civil liberties group ultimately comes down on the side of an alleged victim of crime over the rights of a defendant to see his accuser. It suggests religious freedoms and the comfort of a witness in court must take precedence over fair trial rights.
-The Criminal Lawyers' Association of Ontario and the two defendants in the ongoing case share the views of the Muslim Canadian Congress and want the court to order the woman to remove the veil while testifying.
-The Ontario government is seeking to narrow the debate. It suggests the Court of Appeal need not make a sweeping decision on whether a veil may be worn in court. Instead it recommends the creation of a "legal framework" to assist lower courts in deciding the issue on a case-by-case basis.