Skip to comments.Toronto woman must remove niqab to testify in sex-assault case, judge rules
Posted on 04/24/2013 10:06:03 AM PDT by Squawk 8888
TORONTO - In a first ruling since the Supreme Court decision last year, the sexual complainant known as N.S. has been ordered to remove her niqab when she testifies in a preliminary hearing.
Justice Norris Weisman released his decision Wednesday morning.
She had fought all the way to Canada's highest court seeking to keep her face covered while she faced the two relatives she's accused of historical sexual assault. The Supreme Court ruled that each judge must decide on a case-by-case basis.
The preliminary hearing is set to resume April 29.
In 2007, she came forward and accused two relatives of sexually abusing her as a child. When the case went to the preliminary hearing in 2008, she asked to wear her niqab while testifying.
"The religious reason is not to show your face to men that you are able to marry," she explained at the time. "It's to conceal the beauty of a woman and, you know, we are in a courtroom full of men... I would feel a lot more comfortable if I didn't have to, you know, reveal my face."
The judge ruled she had to remove it because she hadn't demonstrated a strong enough religious conviction, and had already taken it off for her driver's licence photo.
She took her case to the Ontario Court of Appeal. In 2010, the three judges would neither endorse or prohibit the use of face veils by Muslim witnesses but said "each case must turn on its own facts."
As long as it doesn't prejudice a fair trial, the court ruled, Muslim women should have the religious right to wear their niqab when testifying. But if a judge is convinced by the accused that he can't properly defend himself if she's testifying against him behind a veil, the witness must remove her niqab and allow the face-to-face confrontation that is the norm in Canadian courts.
For N.S., the appeal court overturned the ban on her wearing a niqab and sent the issue back to the preliminary inquiry judge for a proper hearing: she was to demonstrate the sincerity of her religious belief and the defence was to present their own evidence. The judge was then to decide if she could wear the niqab or whether accommodations could be made for her testimony -- such as an all-female court.
Instead, N.S. took her case to the Supreme Court. In December 2012, the top court produced a rare 4-2-1 split decision. The justices ruled that a woman can wear a religious veil across her face while testifying in court -- but only in certain circumstances.
Let us be the judge of that... Maybe all the men in the courtroom are already married and so she is unable to marry any one of them
Let her testify with the niqab on. The jurors cannot see her face and must assume that she is whom she says she is. But that is a big assumption, enough to cast reasonable doubt on the veracity of her testimony. In such a case the jurors must come back with a not guilty verdict. That could simply be the price for her wearing a niqab.
Amazing! If she wears the sheet how will we know if she is guilty or not?
I don’t see how any critical witness would be allowed to testify when people can’t see who is talking.
After seeing her face most of the men in the courtroom would probably swear off marriage snyway.
A muslim demand for modesty may lead to aquittals for her rapists. Better yet, if a muslim woman is raped and she demands to wear a niqab in court, just dismiss the rape charges immediately.
For that matter, if she demands to wear a niqab in court, does she have four male witnesses that will testify that she was raped? If not, out go the charges. And maybe she will be stoned to death for being a whore. (Getting closer to shariah now...)
As someone who has cross-examined hundreds of witnesses over the years, I can confirm that facial expression is often a key factor in how to conduct the examination. Facial expression, blushing, eye movement, perspiration, are all clues to whether a person is nervous, evasive, agitated, angry, arrogant, etc.. The voice alone may provide clues but face and voice together are a much more powerful indicator. Facial covering should not be permitted in court, in voting locations, on public transportation or in public buildings. And private businesses should have an absolute right to refuse entry to anyone who insists on covering their face.
You can't even wear a ballcap into the banks around here.