Facing Justice: An Update

Facing Justice: An Update May 12, 2009

I wrote a little while ago about the media coverage of the Toronto sexual assault case in which the female complainant was ordered by the presiding judge, Justice Norris Weisman, to remove her niqab while testifying. At the time that I posted my earlier article, hearings were underway in Ontario’s Superior Court to appeal the judge’s decision requiring her to testify with her face visible.

Last week, the decision of this latest hearing was released, and made its way through Canadian media.

The ruling is far from clear-cut, and will likely result in even more hearings. In short, as I understand it, the Superior Court Justice, Frank Marrocco, ruled that it is indeed within Weisman’s jurisdiction to ask the complainant to remove her niqab. However, he also dismissed Weisman’s original decision, ruling that it was made without sufficient consideration of the issues involved, regarding both the complainant’s religious beliefs and the implications of her face covering for the court case. In other words, although he does have the hypothetical authority to force her to remove her face covering, if need be, the decision that the removal of the niqab in this case was necessary may not have been the right one, and needs to be re-examined.

From my not-a-legal-scholar perspective, this decision seems to make sense. It allows for the trial judge to step in if they truly feel that justice will be obstructed, but also emphasises the rigourous scrutiny that needs to be exercised in order to make that call. It will be interesting to see what kinds of precedents this might set, and whether appropriate attention is actually given in practice to religious and cultural concerns, but the decision seems to respond (at least in theory) to some of the issues raised by both sides, in terms of religious freedoms as well as due process.  (Emphasis here on the “at least in theory” part.  As should be clear in some of the concerns I mention below, I’m still not convinced that the ultimate outcome will be decided in a way that truly does give appropriate consideration to the complainant’s reasons for wearing niqab, or to the potential impact of asking her to remove it.)

Not surprisingly, the articles reflect a range of perspectives. The National Post, which has been the most anti-niqab throughout this whole story, uses the headline “Wearing veil on stand not a right: ruling,” emphasising that certain forms of religious expression through clothing do not have to be respected in all circumstances. Others are more sympathetic towards the complainant, such as a CTV piece whose headline refers to the “Partial court victory for Muslim woman over niqab.”

The article that most disturbed me was the one published in the Globe and Mail, which starts off with:

Should a devout Muslim be allowed to testify in a Canadian criminal trial with her face concealed?

Perhaps, a court ruling has suggested.

But much hinges on how devout she really is.

It would be easy to take from this article that devoutness can be measured by someone’s commitment to covering their faces, which is somewhat off-putting for the majority of devout Muslim women, who do not niqab. Moreover, the idea of measuring a person’s religious devotion at all is rather alarming. Later in the article, we are told that

the judge ordered that the preliminary inquiry – on hold since the issue surfaced – convene two hearings to determine whether the woman’s beliefs are sincere, and if they are, whether testimony from a veiled witness would be admissible as evidence.

Again, allowing a court to decide the sincerity of a person’s religious beliefs – particularly, although not only, in a case where those conducting the hearings likely do not share this person’s beliefs – is hugely problematic. Moreover, it is not simply the depth of her devotion that should be considered, but also the reason for that belief and the potential impact of forcing her to remove the niqab, among other things. It is difficult to tell whether the language around judging the complainant’s beliefs came from the verdict itself or whether it was the journalist’s interpretation of the judgement, but the idea is disturbing either way.

Interestingly, the Globe article identified the woman as “a Canadian-born mother in her early 30s,” which is more biographical detail than has been provided up to this point. The phrase “Canadian-born” (rather than simply “Canadian”) is fairly often used to indicate a perception that someone is not a “real” Canadian; whether or not the journalist used it intentionally in this case, there is definitely a difference between the phrase that was used and “a Canadian mother in her early 30s.” At the same time, the idea that she is Canadian may come as a surprise to those who, upon reading of this case, have repeatedly expressed fears that Muslims (whom they assume to be immigrants) are coming here for the purposes of challenging Canada’s laws and political systems and should all be sent home. The people reacting in those ways almost certainly do not consider that “home” could be Canada itself, as appears to be the situation for the complainant here.

It seems this case will continue to develop, and will continue to make the news as further decisions are made. We’ll keep you posted, inshallah.

This post was originally published at Muslim Lookout.

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