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Ontario high court rules witnesses may wear niqab unless unfair to accused

By Jay Carmella

[JURIST] The Court of Appeal for Ontario [official website] ruled [judgment, PDF] Wednesday that a witness does not have to remove her niqab [JURIST news archive] unless the failure to do so will prevent the accused from receiving a fair trial. The court stopped short [CBC report] of issuing a ruling that would require all courts to follow in a similar fashion. The decision emphasizes the need for each situation to be considered on a case by case basis. The court wrote:

If, in the specific circumstances, the accused's fair trial right can be honoured only by requiring the witness to remove the niqab, the niqab must be removed if the witness is to testify. I would hope, however, that if the individual rights recognized in the Charter are treated as something more than additional weapons in the lawyer's legal arsenal, the parties will engage in good faith efforts to reconcile competing interests and produce a satisfactory resolution that recognizes and respects both the accused's right to a fair trial and the witness's right to exercise her religious beliefs. I repeat, each case must turn on its own facts. The full facts of this case, as they relate to this issue, are not known.

The lower court in this case required the victim to remove her veil. However, the court of appeal found that the lower court did not conduct a proper inquiry into the woman's religious rights. The victim has accused her cousin and uncle of repeatedly sexually abusing her between the ages of 6 and 10.

The issue surrounding Muslim women and their traditional clothing remains controversial in Canada and around the world. Last week, the French Constitutional Council [official website, in French] ruled [JURIST report] that a bill [materials, in French] making it illegal to wear the Islamic burqa, niqab or other full face veils in public, conforms with the Constitution. Earlier this month, a Dutch politician suggested that the Netherlands will ban the burqa [JURIST report] as part of the government's plan to form a minority coalition. In August, Austria's conservative Freedom Party [official website, in German] called for a special vote [JURIST report] on whether to ban face veils and the construction of minarets, two of the most visible symbols of the Islamic faith. Many members of the Muslim Canadian Congress (MCC) [advocacy website] believe [JURIST comment] that Canada should consider banning the wearing conservative Muslim clothing.

Full post as published by JURIST - The Paper Chase on October 14, 2010 (boomark / email).