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MCC welcomes the Supreme Court judgement on Niqab: Chief Justice acknowledges, wearing a niqab could lead to a wrongful conviction

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  • Tarek Fatah
    December 20, 2012 MCC welcomes the Supreme Court judgement on Niqab *Chief Justice acknowledges, wearing a niqab could lead to a wrongful conviction* TORONTO -
    Message 1 of 1 , Dec 20, 2012
      December 20, 2012

      MCC welcomes the Supreme Court judgement on Niqab
      Chief Justice acknowledges, wearing a niqab could lead to a wrongful conviction

      TORONTO - The Muslim Canadian Congress (MCC) has welcomed the split decision by the Supreme Court on the admissibility of the niqab in Canadian courts. 

      In a statement the MCC said, only one justice in dissent upheld the absolute right of a Muslim woman to wear a niqab while giving testimony in a Canadian court.  On the other side of the equation, two justices in their concurring decision said there was no place for the niqab in Canadian criminal courts under any circumstances. In addition, the majority of four justices concurred that "Where the liberty of the accused is at stake, the witness's evidence is central to the case and her credibility vital, the possibility of a wrongful conviction must weigh heavily in the balance, favouring removal of the niqab".

      Based on our interpretation of the decision of the majority, we are confindent that in the case of NS, when the case goes back to the trial judge, she will have to remove her niqab as a result of today's decision.

      The MCC is encouraged by the following points in the Supreme Court judgement today:
      1. Chief Justice McLachlin for the plurality acknowledges that wearing a niqab could lead to a wrongful conviction: para. 2
      2. The principles of fundamental justice include the right to a fair trial and the right to make full answer and defence: para. 15, McLachlin CJ
      3. "The common law, supported by provisions of the Criminal Code, and judicial pronouncements, proceeds on the basis that they ability to see a witness' face is an important feature of a fair trial.": para. 21, McLachlin J.
      4. Covering the face of a witness may impede the ability of the judge or jury to assess the credibility of a witness: para. 25, McLachlin CJ
      5. "I conclude that there is a strong connection between the ability to see the face of a witness and a fair trial": para. 27, McLachlin CJ
      6. "Where the liberty of the accused is at stake, the witness's evidence is central to the case and her credibility vital, the possibility of a wrongful conviction must weigh heavily in the balance, favouring removal of the niqab": para. 44, McLachlin CJ

      Reasons of Lebel J.  (Rothstein J.  concurring):

      1. This case goes to the basic values of the Canadian justice system and whether or not wearing the niqab is compatible with those values (para 60)
      2. Viewing a witness’ face during cross-examination remains a fundamental right of the accused and the appellant (NS) did not show that this view was wrong (para 64)
      3. The Canadian justice system is an adversarial one where the prosecution, defence, witnesses, judge and possible jury interact with each other. This may result in a burden being placed on witnesses which cannot be entirely lifted. (para 67)
      4. When an issue involves the credibility of a witness, the balancing process will weigh in favour of the accused’s right to make full answer and defence since the consequences  of doing otherwise would impact him greatly if it results in a determination of his guilt or innocence (68)
      5. Because of the underlying values of the Canadian justice system and the dynamic nature of the trial process, the wearing of a niqab should not be allowed. A clear rule is needed (para 69)
      6. The Canadian justice system has core values which allows it to welcome all members of society. While multiculturalism is an important part of Canadian society, its place is rooted in the political and legal traditions of the constitution and our democratic society (para 72)
      7.  The state and its institutions are religiously neutral which allows them to embrace all members of Canadian society regardless of their beliefs (para 73)
      8.  Wearing a niqab is not compatible with the principle of openness in Canadian courts and does not facilitate communication and interaction with all parties (para 77)
      9.  Lebel J. acknowledges the need for a clear rule that the niqab cannot be worn (para 78)  

      - 30 -


      For more information please call:
      Salma Siddiqui in Ottawa at (613) 864-4306 or 
      Saadia Bokhari in Toronto at (647) 982-0875


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