7-5 Clashing Values

Warm-up

• What is multiculturalism? How is it supposed to work?
• Do you feel Canada is welcoming to people with different cultures, ideas, and religions? Is your country?
• To what degree should people who visit other countries assimilate to the culture of that country?
• What about people who immigrate to other countries?

Article - Part 1

Top court rules judges may order witnesses to remove niqab

But split decision favours balance between religious rights and fair trial, when possible

By Leslie MacKinnon, CBC News

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 woman has accused her uncle and cousin of sexually assaulting her when she was between six and 10 years old, during the 1980s. Twenty-five years later, the woman told her story to police and her two male relatives were charged, but the case has not yet gone to trial.

She asked to wear a niqab, a veil worn by some Muslim women that covers virtually all of the face except the eyes, during her testimony, because of what she said were sincerely held religious beliefs.

David Butt, lawyer for the Muslim woman, said Thursday his client was "thrilled with the fairness and the balance that the Supreme Court has shown in addressing what has been a very difficult case for the courts to wrestle with."

Butt, who described his client as a working mother who considers herself a survivor of childhood sexual abuse, said that she is looking forward to going back to the lower court and giving more evidence. Asked by reporters what his client would do if she were ordered to remove her niqab, Butt said that she is not, at this stage, thinking of ultimate outcomes. Butt said that the highest court has set out guidelines, but that lawyers need examples from real cases. "This will be the first one, it will be a big one, and it will help other women going forward," he said.

The ruling largely upholds criteria established by the Ontario Court of Appeal. The Court of Appeal had ruled the woman may have to remove her niqab if her credibility became an issue. It also set out criteria that a judge must consider:

• Whether the veil interfered with the cross-examination.
• Whether the witness would be appearing before a judge only or before a jury.
• The nature of the evidence.

The woman, known as N.S.in the court, appealed to the Supreme Court arguing her sincere religious beliefs meant that her face must be covered before all males who are not close relatives.

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.

Comprehension

• Why is this woman in court? What are the details of her case?
• What is the issue with her niqab? Why does she not want to remove it? Why does the other side want her to remove it?
• What did the Supreme Court of Canada decide on this issue?

Part 2

'The niqab undermines gender equality'

Tyler Hodgson, lawyer for the Muslim Canadian Congress, an intervenor in the Supreme Court case, said that the congress is pleased with the decision. His client, he said, "would probably tell you that the niqab is not something that has its roots in the Islamic tradition, and generally speaking they find that the niqab undermines gender equality."

Hodgson said "our reading of [the decision] is that the majority of times going forward in a criminal setting the witness will likely be asked to remove the niqab." This would be especially true if the evidence was contested, Hodgson said, adding that in a criminal case, evidence is always contested.

Susan Chapman, lawyer for LEAF, the Women's Legal Education and Action Fund, reads the case differently. "The starting proposition here is that she's entitled to wear it [the niqab] until somebody demonstrates, namely the accused, that it will impact adversely on his fair trial rights ...The onus I see is on the accused."

But Chapman is bothered by the fact that she feels the defence has been given a big leg-up: "The Supreme Court has said demeanor matters." Chapman said she was disappointed that the top court relied on tradition, in going by the common law practice that faces are seen in a courtroom.

"We live in a multicultural society. The fact that something is tradition is not an adequate answer to a human rights question," Chapman said.

She also said that now a woman who wears a niqab will have to make a decision: "Do I seek justice or am I going to respect my religion?"

"That's a big price to pay for justice," Chapman said.

Comprehension

• How do the two groups: The Muslim Canadian Congress and LEAF view the ruling differently?
• Are they happy or unhappy with it? For what reasons?

Part 3

Removed niqab on other occasions

Part of the court evidence is that the woman did remove her niqab to be photographed for a driver's licence, in front of a female photographer. Lawyers for the accused men point out that her religious convictions were not so strong that she refused to go through the licensing process, even though the photo could be demanded by any number of police officers who might be men.

The Muslim Canadian Congress also argued that since N.S. had willingly removed her niqab for a driver's licence photo, and had testified she would also remove it at a border crossing, then the courtroom also ought to be an exemption.

But, the woman's lawyer argued that having a photograph taken for a driver's licence is not analogous to testifying about intimate sexual details in a courtroom in front of strangers.

"What is religion for if not to bring comfort?" Butt argued.

Butt told CBC that the job of the court is not to be the arbiter of whether the practice of Islam really does require that women be completely covered. Although he conceded many see it as a symbol of female oppression, he thinks an order to remove it is another form of paternalism.

"At the centre is the notion of choice ... some people's choices will be distasteful to others," the lawyer said.

Comprehension

• In what situations has the woman removed her niqab before?
• Do you think the issue is the same?

Further Reading

alanl992012/12/20

In a free, open and democratic society there has to be transparency in all walks of life. No person should hide there face in public in the best country in the world.

AlbertaGent2012/12/20

The niqab is not required by Islam, only a small minority of Muslim women wear it, those obliged to do so by their husbands. Why can we not follow the initiative taken by those European countries who have banned this obnoxious affront to the dignity of women?

steve4782012/12/20

This is a classic case where a group of people want to enjoy the benefits of living in another country, but not be respectful of that other country's laws or common tradition. They do so under the protection of our constitution. In a nutshell, we are being colonized.

sillybilly2012/12/20

I have no problem with a ban on the niqab. If we went to certain countries in the middle east we would have to abide by their cultural laws, thus as a woman I would have to cover myself, I would not be able to drive a car and I would have to be accompanied by a male everywhere I went. This goes against my culture and my beliefs but I would have no choice for fear of legal repercussions or even flogging. Thus, when people come to Canada they have to abide by our cultural laws - and here our culture is to see someone's face when you communicate with them. I am not a big fan of the hijab - especially when I see little girls wearing them - but a niqab is hazardous. No peripheral vision while driving and who knows who is doing the voting! A ban is appropriate!

dgaud882012/12/21

It seems to me that the average citizen is overlooking two important facts here:

1. This woman has the right to dress herself as she sees fit.
2. The two accused men are actually the ones hiding behind the Hijib, they know she is unlikely to reveal herself in open court so they get off because she chooses to wear it and the case will be dismissed or dropped.

Society has no right to impose its dress code on the Muslim woman, any woman. I find it astounding that a woman in Ontario may drop her top but if you cover up to protect oneself from the unwanted leers of men you end up in the Supreme Court of Canada. If she chooses to wear it or not, that is her decision.