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Ontario Sex Assault: Niqab Must Be Removed By Accuser, Says Judge

04/24/2013 02:54 EDT | Updated 06/24/2013 05:12 EDT
TORONTO - A woman must remove her face-covering veil to testify against the men she is accusing of sexual assault, an Ontario judge ruled Wednesday.

The woman's niqab "masks her demeanour and blocks both effective cross-examination by counsel for the accused and assessment of her credibility by the trier of fact," Ontario Court Judge Norris Weisman ruled.

The 37-year-old woman, known only as N.S., alleges two men sexually assaulted her over five years, starting when she was six years old.

The question of whether she should be allowed to wear her niqab while testifying in the case went all the way up to the Supreme Court of Canada, which issued a split decision that affirmed the importance of both the right to a fair trial and religious freedom.

The case of N.S. is now back in provincial court for the preliminary inquiry, five years after the challenge began. But N.S. isn't done fighting to keep her niqab on, her lawyer said. They will ask the Ontario Superior Court to review the decision.

"The concern is the judge refused to consider a substantial body of scientific research which demonstrates that we as humans are actually quite faulty at detecting honesty by reading people's faces," David Butt said.

The long slog through the courts has already taken a "tremendous toll" on N.S., Butt said, all because she has sincerely held religious beliefs.

"Having said that, she is a very strong woman who understands that the first case through is in many respects the most important one," he said.

"For the sake of other women who might find themselves in a similar position in the future, she's somehow found the strength, and I admire her for it, she's somehow found the strength to go the extra mile."

Weisman used the test set out by the high court to reach his ruling.

Judges must ask themselves: Would requiring the witness to remove the niqab while testifying interfere with her religious freedom? Would permitting the witness to wear the niqab while testifying create a serious risk to trial fairness? Is there a way to accommodate both rights and avoid the conflict between them?

Weisman found that while the woman's religious beliefs require her to cover her face in the presence of men who aren't related to her, it would create a "real and substantial" risk to the accused men's fair trial rights.

There is no way to accommodate both rights, Weisman found.

"The niqab is either worn or removed for the preliminary inquiry," he wrote. "There is no middle ground."

Weisman noted that the men face very lengthy prison sentences if convicted and pointed to a quote from the Supreme Court decision in reaching his conclusion.

"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 the removal of the niqab."

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