12/21/2011 03:50 EST | Updated 02/20/2012 05:12 EST

Veiled Threat: Niqab in the Courtroom

I have conducted hundreds of trials. I can tell you that during trial many things go on simultaneously in the courtroom. The cross-examiner listens and watches very carefully to every inflection, every movement, every subtle change of mood, and facial tics that the witness conveys while testifying.

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"My god is better than your god. If you do not agree, my god personally told me that I should kill you to carry out his will!" It is difficult to believe, but sadly there are people all over this planet who still live by this credo.

Nothing stirs up more controversy and outrage than when people feel their religion is being somehow diminished or mocked and their "god-given" rights are being trampled on.

As a trial lawyer practicing in Toronto, I remember that once upon a time only the Holy Bible was generally available for witnesses when they took an oath to tell the truth. I once represented a man charged with assault in the 1990s who demanded that the Bhagavad Gita be provided to him before taking an oath. I still remember the judge squinting his eyes, slowly shaking his head, and asking me, "So the Bible won't do?"

The court clerk sitting below the judge stared at the ceiling and mouthed something unpleasant under his breath. Those bad old days are long gone and most courtroom witness stands at the very minimum are stocked with the Bible, the Koran, and the Bhagavad Gita. Most judges are also now better trained and are aware of cultural and religious differences in the population at large. Times have changed for the better. The monochromatic vision of justice, along with the players that made it work, has forever changed.

Section 2 (a) of our Canadian Charter of Rights and Freedoms guarantees us our right to exercise "freedom of conscience and religion." In the case of a woman known only as N.S.,the Supreme Court of Canada must now decide if Muslim women can keep their faces covered when testifying as complainants in a criminal trial. The issues are complex. At the Ontario Court of Appeal, the position taken by Women's Legal Education and Action Fund was that the complainant should be allowed to cover up her face during the trial because otherwise the failure to do so "could very well be seen and experienced as an act of racial, religious, and gendered domination." The Muslim Canadian Congress, on the other hand, argued that religious freedoms are not absolute and these freedoms must be balanced against the right of the criminal defendant to look his accuser in the face while she is testifying. The plain truth is that Muslim scholars and imams do not always agree on the subject of a niqab or a burka. There are those who maintain that the face covering of Muslim women is merely a tradition and it has no connection to the Muslim religion itself.

In Michigan, a judge denied an application from an appellant who claimed that her free exercise of religion guaranteed under The First Amendment was being abrogated. As a Muslim woman, the appellant was willing to take off her niqab during her court testimony, but she was only willing to do so before a sitting female judge. The detailed judgement , which is very worthwhile reading, spoke of demeanor evidence and the confrontation clause that is well embedded in American jurisprudence. The well-reasoned and researched concurrence by Justice Corrigan makes reference to Muslim scholars and their views on the niqab. The judgment also mentions the fact that some Muslim communities suggest that while testifying in court women may remove the niqab before a judge. The judgement also considers the fact that there is no real substitute for being able to watch a witness's face in order to properly assess credibility.

I have conducted hundreds of trials. I can tell you that during trial many things go on simultaneously in the courtroom. The cross-examiner listens and watches very carefully to every inflection, every movement, every subtle change of mood, and facial tics that the witness conveys while testifying. The presiding judge and jury also watch for the same thing consciously and subconsciously.

The overall art of human communication involves a lot more than mere exchange of words. In a long sexual assault trial that I did some time ago, the complainant was an angelic looking young girl who looked like butter wouldn't melt in her mouth. She had her hands folded in her lap, she cried at the appropriate moments. She wore a simple white dress with frills on her sleeves. Her voice was barely a soft whisper above the dull hum of the courtroom air conditioner. The victim witness protection officer in the courtroom nodded gently along throughout the entire cadence of her orchestrated testimony. There was something seriously wrong though. Her story simply did not make sense. There was absolutely no medical evidence. The complainant had repeatedly gone back to the apartment where she was allegedly brutally raped by my client. Moreover, she had written to my client while he was in jail four letters professing her undying love and chastising him for cheating on her. In her last letter she wrote that she hoped that my client had learned his lesson. By the end of my two day cross examination, this complainant was being very combative; her face was contorted with rage, her overall countenance was no longer demure and yielding. At certain points during her answers to my questions, the complainant was smiling. I asked her point blank if she found the court proceedings where a man was facing serious penitentiary jail time to be amusing. Towards the very end, I finally confronted her with the letters she had written to my client. She denied writing the letters.

Unbelievably, the complainant called me some choice names from the stand and then proceeded to storm out of the courtroom. The judge had seen enough. My client was acquitted. I sincerely believe that if the judge had not been able to see her face during the testimony, the battle inside the courtroom would have been much more difficult. If I had not been able to see her facial reaction to my questions, I would not have been able to do my job properly. In my opinion there is simply no place for the niqab in a criminal court.

Unlike other parts of the world, all accused in Canada are deemed to be innocent before a court of law. The accused have a right to be present in the courtroom and face their accuser. In my humble view, there must be a balance struck between guaranteed freedoms of religion versus the rights of the accused. In order to live in a just modern society, there are legal rules we must enforce for the overall public good. Those specific rights must not yield to uphold the appearance of tradition and the patriarchal concept of honour.