A case to be decided Thursday by the Supreme Court of Canada on whether a Muslim woman can wear a niqab while testifying against two men whom she says sexually assaulted her when she was a child is about a clash of values.
On the one side is a religious belief said to be sincerely held, and on the other, the right of an accused to a full defence.
The woman, whose identity is protected by a publication ban, accused an uncle and a cousin of repeatedly sexually assaulting her from the time she was six until she was 10. Years later, in 2007, she went to the police, but the case has not yet gone to trial.
At a preliminary hearing, in a room alone with the judge, the woman took off her niqab, which is a face veil that leaves only her eyes uncovered. She told the judge, "The objection is very strong. It's a respect issue, one of modesty and one of, in Islam, we call honour."
She explained she cannot show her face to any men who are not close relatives, and also said, "I, you know, I would feel a lot more comfortable if I didn't have to, you know, reveal my face. You know, just considering, the nature of the case and the nature of the allegations and I think, you know, my face is not going to show any signs of — it's not going to help, it really won't."
After the preliminary hearing, another court ruled the testimony with the judge alone was insufficient, and that the woman should undergo a proper evidentiary hearing. The matter of whether she had to uncover her face eventually ended up before the Supreme Court.
Facial cues 'can be significant information'
Lawyers for the accused men argue that facial cues "can be significant information that help the observer understand what a witness is attempting to communicate and get a sense of who the witness is and how he or she is reacting to questioning."
The art of cross-examination, the lawyers contend, although they admit that questions are prepared in advance, is always partially instinctual, meaning that smiles, winces or other facial tics can be a valuable signal to the cross-examiner that it's time to change direction.
The accused men’s lawyers also say that is not clear whether the woman sees her niqab as a religious requirement, or as "a personal preference and a matter of comfort."
Part of the court evidence is that the woman did remove her niqab to be photographed for a driver's licence, in front of a female photographer. Lawyers for the accused men point out that her religious convictions were not so strong that she refused to go through the licensing process, even though the photo could be demanded by any number of police officers who might be men.
The accused men’s lawyers continue, "The establishment of open and secular courts is a core value of Canadian democracy, adding that allowing a complainant to wear a veil would constitute "a revolutionary change in the foundations of our legal system."
'The niqab isn't as big a deal as people make it out to be'
Actually, David Butt, the woman's lawyer, said the niqab "isn't as big a deal as people make it out to be." Butt contends that body language, voice tones, and eye expressions would speak volumes about his client's reliability as a witness.
As to whether the woman needs the veil just for comfort reasons, Butt said, "What is religion for if not to bring comfort?”
Butt also argues that having a photograph taken for a driver's licence is not analogous to testifying about intimate sexual details in a courtroom in front of strangers.
Butt continued that the job of the court is not to be the arbiter whether the practice of Islam really does require that women be completely covered. The issue, he said, is not to get into a debate that's internal to a particular religion, but whether the woman is telling the truth about her religious beliefs.
"[The courts] essentially do what courts do best, which is to assess sincerity of belief. Courts do that all the time with witnesses," Butt said.
Butt admitted that the highest court might take into account the broader social issues about the niqab, but although he concedes many see it as a symbol of female oppression, he thinks an order to remove it is another form of paternalism.
"At the centre is the notion of choice ... some people's choices will be distasteful to others," he said.
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