Courts allow niqab to be worn during hearings
The Ontario Court of Appeal has ruled that a Muslim woman may wear the niqab, a traditional veil that covers most of the face, while testifying as a witness in a criminal trial. The Court of Appeal’s decision, made on Oct. 13, upholds the ruling of the Ontario Superior Court.
Jasmin Zine, associate professor in the department of sociology at Laurier, views the Ontario Court of Appeal’s ruling as “a welcome development that preserves the victim’s right to maintain her dignity and not be further violated by being forced to remove her niqab, which for women who wear this garment would be regarded as another form of assault on their body.”
The court was faced with the task of balancing the right to a fair trial with the freedom of religion.
There is no hierarchy of constitutional rights, and all the rights and freedoms guaranteed by the Canadian Charter of Rights and Freedoms are of equal importance.
Therefore, when rights or freedoms conflict with each other, they must be carefully balanced in order to cause the least possible infringement.
The defence lawyers argued that the defendant’s right to a fair trial would be violated if he could not see the face of the accuser and if the judge or jury could not take into account the facial expressions of a witness while considering their testimony.
However, the court ruled that a witness may wear a face covering, provided that it is connected to sincere personal religious beliefs, while testifying except in rare cases where it would truly compromise the fairness of the trial.
While the decision upholds an individual’s rights, associate professor of women and gender studies Shahnaz Khan noted, “In any case, I think that wearing the niqab is not a major issue for most Muslim women at this point in time.”
Asked for her opinion on the ruling, Khan said, “I think it is a complicated issue. It is difficult to give a straight yes or no answer because people read body language as well as voice comments.”
The Superior Court had earlier overturned the judgement of a lower court, which stated that the woman must remove her veil in order to testify.
The case relates to sexual abuse that the woman allegedly suffered when she was a young girl, that was suspected to be carried out by her uncle and cousin.
“Very few actually wear it in Canada,” she explained.
Describing the debate over the niqab and similar clothing as ongoing in the Muslim community as well as in broader society, Zine stated, “Amongst Muslims, there is a great deal of contestation over whether the face veil is a part of Islamic tradition.”
“Many Muslims disagree with the practice,” Zine added, “but nonetheless have supported women’s right to choose what they wear.”