Gender Focus Panel: SCOC Ruling on Wearing Niqabs in Court

niqab

This past week the Supreme Court of Canada issued a ruling on whether Muslim women have a right to wear a niqab in court.

Via the CBC:

A Muslim woman who is the complainant in a sexual assault trial in Toronto has lost her bid before Canada’s top court to have an unimpeded right to wear her niqab while testifying.

In a split Supreme Court of Canada decision released Thursday, the seven judges largely upheld a lower court’s ruling that the woman, known only as N.S. to protect her identity under a court-ordered publication ban, may have to remove her niqab.

[...]The Court of Appeal had ruled the woman may have to remove her niqab if her credibility became an issue.

The court also set out criteria that a judge must consider in such cases, including whether the veil would interfere with cross-examination and whether the witness would be appearing before a judge only or before a jury.

Toronto’s Barbra Schlifer Commemorative Clinic was one of three intervenors in the case, arguing that “removal of a complainant’s niqab would be a disincentive to the reporting of sexual assaults and impede access to justice for an already marginalized group.” The Clinic stated they felt the split decision recognized the complex rights’ issues, and they thanked Justice Abella for her dissenting opinion, which stated in part that: “the harmful effects of requiring a witness to remove her niqab, with the likely result that she will likely not testify, bring charges in the first place…is a significantly more harmful consequence than not being able to see a witness’ whole face.”

Here’s what three Gender Focus contributors had to say about the ruling.

Jessica Critcher

I’m an atheist– and a really militant one at that. I even won a scholarship and landed my first publication ever because of how unimpressed I am with god and by extension every religion ever (especially yours).

With this in mind, I would like to express my disapproval for the SCOC’s ruling with regards to NS wearing a niqab, because this has almost nothing to do with religion. Reading the news coverage, it’s obvious what the problem is:

Lawyers for the two men accused of sexually assaulting her when she was a child argued that a fair and open trial means the face of a witness must be seen because facial cues are important to establish credibility.

Bolded for emphasis. Rape survivors have to establish credibility. NS is on trial just as much as much as her rapists. And now, in addition to being assaulted, in addition to facing her rapists in court, she may have to be similarly violated and humiliated by the legal system.

I’m not a fan of gendered religious head coverings. But here’s the thing, my opinion as a white person and as someone who does not participate in that religion is irrelevant. Regardless of whether head coverings are oppressive or not, (which is complicated!) and whether NS wears her niqab as “a religious requirement, or as ‘a personal preference and a matter of comfort’” or not, the legal system is already failing her, and her case hasn’t even made it to trial yet. I’m not literally praying for her, but you get the idea.

Sarah Jensen:

This is a really tough one. I disagree with outright niqab bans, such as those enacted by France and Belgium. I can see the necessity of removal in certain circumstances, though, such as when getting a photo taken for identification. The line blurs for me when it comes to testifying in court. I think that the Supreme Court came to the right decision– that the niqab’s allowance is best decided on a case-by-case basis.

I see both sides of the argument, but in this particular case I would be more inclined to let N.S. keep her face covered. Testifying in court can be extremely traumatic for sexual assault victims, as they must face those who harmed them, while simultaneously recounting the painful details to strangers. Many victims already grapple with feelings of shame and exposure, and forcing N.S. to unveil may amplify these feelings. It may also discourage other veiled Muslim women from pressing charges.

Jasmine Peterson:

The Supreme Court’s ruling on requiring a woman to remove her niqab during her testimony is not only disappointing, but it’s paternalistic and, as far as I’m concerned, an impediment on an individuals’ rights. What is particularly disconcerting about this decision is the composition of the individuals who have passed this ruling – none of whom appear to be themselves Muslim women. I think this is a huge (and consistent) problem in Canada in making decisions regarding minority groups, that those making the decisions are not minorities themselves and therefore lack essential insights upon which to base their decisions in a more nuanced and informed manner.

What is perhaps particularly problematic from my perspective in this case is that the defense lawyers asserted 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.’” Having studied forensic psychology, I worry that the premise behind this requirement is faulty, at best. It is certainly not supported by research. A witness is not on trial, and this seems to me to be a sort of revictimization. But even more than that, juries are not particularly good at judging a persons’ honesty by their demeanor or their facial expressions. In fact, people are not particularly good at detecting lying most of the time. So the facial cues alluded to by this defense lawyer are likely inconsequential to getting to the truth anyhow.

Finally, I think the idea that the niqab “undermines gender equality” is also based in misunderstanding and wilful ignorance. That is not to say that, for some, the niqab is not experienced as an oppressive garment. However, for many, the niqab is worn not out of some oppressive imposition but because of personal and religious beliefs. It is experienced as a positive thing, not a negative. I find it troublesome when I hear essentialist statements about the oppressiveness of the niqab when I have heard it spoken of very positively by some Muslim women who choose to don the garment for spiritual reasons. Unfortunately, I think this widely held misconception of the niqab as only being oppressive influences decisions like these being made by people who are on the outside looking in. Too often our Western views are imposed upon others; as a multicultural country I think it time we become more sensitive in addressing the diversity which comprises Canadian citizens, and their rights.

(photo via Wikimedia Commons)

Posted on by Jarrah Hodge in Can-Con, Feminism, Racism 4 Comments

About the author

Jarrah Hodge

Jarrah Hodge is the founder and editor of gender-focus.com. She has also written for the Huffington Post, Bitch Magazine Blogs, the Vancouver Observer and About-Face. Jarrah has B.A. in Women’s Studies and Sociology from UBC. She’s a fan of politics, Star Trek, musical theatre, and brunch.

4 Responses to Gender Focus Panel: SCOC Ruling on Wearing Niqabs in Court

  1. Anonymous

    It would be nice to quote the actual ruling, since media coverage presents a very simplified version of it. After reading the court decision, I got a completely different view. They merely impose a clear way to approach specific such cases in the future:

    “The issue is when, if ever, a witness who wears a niqab for religious reasons can be required to remove it while testifying. Two sets of Charter rights are potentially engaged — the witness’s freedom of religion and the accused’s fair trial rights, including the right to make full answer and defence. An extreme approach that would always require the witness to remove her niqab while testifying, or one that would never do so, is untenable. The answer lies in a just and proportionate balance between freedom of religion and trial fairness, based on the particular case before the court.”

    They go on to say that “applying this framework involves answering four questions. First, would requiring the witness to remove the niqab while testifying interfere with her religious freedom? [...] The second question is: would permitting the witness to wear the niqab while testifying create a serious risk to trial fairness? [...] If both freedom of religion and trial fairness are engaged on the facts, a third question must be answered: is there a way to accommodate both rights and avoid the conflict between them? [...] If no accommodation is possible, then a fourth question must be answered: do the salutary effects of requiring the witness to remove the niqab outweigh the deleterious effects of doing so?”

     
  2. arij

    The SCS ruling is about how to balance two sets of constitutional rights. The judges are asked a specific question about witness testimony (links between physical demeanour and credibility) and they decide on a general method to approach the answer. They decide that only a case by case basis would be appropriate to answer the question. The judges are not asked to render a decision on the broader conceptual questions raised. Even the dissending judge agreed with this. What was at stake in the decision is how the court balances between two Charter rights considering that the same court’s approach/jurisprudence over the past few decades has been increasingly accomodating to religious diversity.

    It might relevant to critique the fact that the SCS only deals with the niqab at the periphery, focusing on technical details of its inclusion in specific institutions like the courtroom. However, I think we have to be careful before hastily injecting our broader concerns about nigab into a decision that does not discuss them.

    Also, a panelist raised the concern that none of the judges at SCS appear to be Muslim women. Indeed, the Supreme court bench tends to be slightly monolithic in that aspect. However, the number of ethnic/religious groups that were allowed to intervene in the case might hint at a certain diversity. Something that can’t be said of this panel. For sure, the stakes are not the same – the panel is not asked to reach a legal ruling, but I think you get the point.

     
  3. manthony

    I share your sympathy when people are forced to relive horrible events, but the fact is that people DO lie. In cases where physical evidence is clear and all facts are obvious then the case would be different, but often nowadays we are seeing people come forward sometimes YEARS after the event and no physical evidence is available. The fact that our courts will even LISTEN to those cases is indicative of how far we’ve come.

    I will admit that I do not know the specifics of this case, however, there are lots of cases out there where it really does come down to ‘he said, she said’, and then ‘facial cues’ or a person’s conduct really must be part of the equation, because unfortunately, people DO lie.

     

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