Canada’s Supreme Court rejects niqab ban

Khadijah Ali

Safar 19, 1434 2013-01-01

News & Analysis

by Khadijah Ali (News & Analysis, Crescent International Vol. 41, No. 11, Safar, 1434)

Much to the chagrin of the Islamophobes and their fellow travellers from among the lunatic fringe of Muslims, the Supreme Court of Canada rejected the call to ban the niqab in courts when Muslim women testify. The majority opinion written by the honourable Chief Justice, Beverley McLaghlin laid out a four-step approach for judges to consider about the niqab use in courts.

In a landmark decision on December 20, the Supreme Court of Canada ruled that a woman cannot be denied the right to wear the niqab (face covering veil) in a courtroom trial, barring some exceptions. In a 4-2-1 ruling that was written by Chief Justice Beverley McLachlin, the majority of justices said that there could be no outright ban on niqab in courts when a witness testifies, but its use will have to be determined on a case-by-case basis.

Two justices dissented from this view while one called for unfettered use of the niqab. Justice Louis LeBel and Justice Marshall Rothstein said it should be banned outright because it went against “the tradition that justice is public and open to all…” The dissenting judges also argued that a ban on niqab in the courtroom would convey “openness of the trial process.” This left the question unanswered as to how justice would be open to all if a niqab-clad woman were deterred from coming forward. The justices that ruled in favor of allowing the niqab raised precisely this point: banning hijab would prevent some women from coming forward, especially in sexual assault cases, from testifying in court, thereby denying them justice.

The case came before the Supreme Court because a lower court had ruled that a Muslim woman, identified only as NS, must remove her niqab while testifying in court in a trial in which she accused her uncle and cousin of sexually molesting her when she was a child. Lawyers for the defence argued that she must be forced to remove the niqab in order to determine her facial expressions while testifying. Norris Weisman, the presiding judge at the preliminary hearing in the case in 2008 insisted she must remove the niqab. He argued, based on the fact that the woman had removed her niqab to get a driver’s license as well as at airport security check, that her “religious belief is not that strong.” This decision was appealed to two higher courts before ending in the Supreme Court of Canada.

The 74-year-old Weisman has been involved in other controversial decisions as well since his appointment to the bench in 1975. One of his earliest decisions led to the death of a one-month-old child, Vicky Star Ellis. The child was sent home to her mother, upon the advice of a social worker. Three weeks later the child was dead. It aroused so much concern and created such controversy that the provincial government was forced to order a coroner’s inquest in 1977 into the infant’s death.

Weisman’s controversial niqab ruling led the Supreme Court justices to address the issues of religious freedom versus other values in society and how to strike a balance between them. In writing for the majority, Chief Justice Beverley McLachlin acknowledged that there are conflicting interests. The “Canadian approach”, she wrote, has been to “respect the individual’s religious belief and accommodate it if at all possible.” For instance, the Sikhs are allowed to wear the turban as well as carry the kirpan (dagger) when appearing in court although traditionally, weapons of any kind by civilians are prohibited inside a courtroom. Respect for individual’s religious belief is entrenched in Canadian laws.

One of the more contentious issues before the justices was that of a witness’ demeanor while testifying. Would a woman’s niqab create serious risk to a fair trial, a fundamental pillar of the justice system? Facial expression during cross-examination is considered important in assessing the credibility of a witness. This was one of the arguments used by Justice LeBel and Justice Rothstein in rejecting the niqab. While they admitted that the appeal “illustrates the tension and changes caused by the rapid evolution of contemporary society and by the growing presence in Canada of new cultures, religions, traditions and social practices,” their approach is to firmly refuse any accommodation with such changes. They insist that a veiled accuser does not square with the “constitutional values of openness and religious neutrality in contemporary democratic, but diverse, Canada.”

Justice Rosalie Abella, however, took issue with this argument. In many instances, demeanor may be difficult to assess, she argued. Impediments include the use of an interpreter, speech impairment, or partial facial paralysis due to stroke. Accordingly, Justice Abella said, “witnesses who wear niqabs should not be treated any differently.” Banning niqab would discourage women from coming forward to press charges especially in sexual assault cases and that would be a denial of justice to these women.

Chief Justice McLachlin agreed with this argument but approached it from a different perspective saying a total ban on the niqab is an intrusion by the state that is not consistent with the Canadian Charter of Rights. The honorable Chief Justice said the onus was on the state to show that such an intrusion was in the public good.

A leading Muslim lawyer, Faisal Bhabha who works for the Canadian Council on American-Islamic Relations (CAIR-CAN), interpreted the ruling as a strong endorsement that a veiled Muslim woman has “a presumptive right to maintain her religious practice.” He said the decision means “that the justice system has a duty to accommodate and that the onus will be on the other party to show that there is a ‘serious’ risk to trial fairness.” Addressing the “sincerity of belief” test, Bhabha said, “All that is required to invoke her Charter rights is a sincere belief that it is a religious duty.” Chief Justice McLaghlin agreed with this interpretation saying it does not matter if the person’s understanding of religious practice is an opinion held by a minority in the particular faith community.

This is a reference to the fact that not all Muslims agree on whether the niqab is mandatory for a woman. This was also the argument invoked by a tiny group of secular Muslims who lobbied against allowing the woman to wear the niqab. This group is opposed to Islam per se; they openly flout Islamic injunctions and mock Islamic practices but are given publicity in the Islamophobic media because it is fashionable to denigrate Islam and Muslims. This tiny but noisy minority of Muslims wants a total ban on niqab anywhere in Canada. While claiming to uphold democratic principles, their behavior and values betray the very basis of such rights that are guaranteed in the Charter of Rights.

David Butt, the lawyer representing the niqabi woman, said his client is ecstatic with the decision. He called her a “legal pioneer” and said she was “confident” she now had a better chance to remain veiled while testifying in court. “What she wants is somebody who is prepared to even-handedly balance the competing positions and that’s what she’s got today.”

The Supreme Court presented a “helpful and straightforward four-part test” that will help her and other victims to come forward, Butt said. In her majority opinion, Justice McLaghlin outlined four points that judges must follow in evaluating a witness’ right to wear the niqab.

The first is her “level of sincerity.” This is entirely dependent on the witness’ belief that she is required to wear the veil. This is independent of whether a majority or minority in her faith community holds such a view. Previous case law allows this. Nor is her sincerity undermined if she removes her niqab for obtaining a driver’s license or for identification purposes at airport security or border crossings in and out of Canada.

The second test is whether allowing the witness to wear the niqab while testifying would create a serious risk to fair trial? Issues such as the importance of observing the demeanor of the witness, including facial expression, came up for intense discussion.

Taking the first two points into account where if both are answered in the affirmative, it would create a conflict situation, the justices directed that the presiding judge must consider if there is a way to reasonably accommodate both rights. This is naturally a tricky situation. Thus, the justices laid down a fourth test. If no accommodation is possible, then the judge must weigh the “harms” and “benefits” of requiring the witness to remove her niqab.

The harm or negative consequence of asking the witness to remove the niqab would be “discouraging niqab-wearing women from reporting offences and participating in the justice system.” The other side of this equation is “preventing harm to the fair trial interest of the accused and safeguarding the repute of the administration of justice.”

It is not unknown in Canadian courts to “accommodate” the beliefs of people by using “reasonably available alternative measures” or for other reasons such as the safety and security of a witness. There have been instances in which witnesses in some cases have been shielded by allowing evidence to be given behind a screen or via closed-circuit video. These have often been associated with drug-related cases or other serious criminal offences such as witnesses testifying in terrorism-related cases where the cover of an informant may be blown while he/she is still involved in “monitoring” a suspect. The niqab case has assumed special significance because there is widespread Islamophobia in society that is not only promoted by some segments of the media but also by some political parties including the ruling conservatives.

This is also evident from the fact that the overwhelming interpretation of the Supreme Court ruling has been dubbed as “deeply split” or “controversial” even in the mainstream media. How can it be called “deeply split” when only two of the seven judges ruled against it; one was solidly supportive of allowing the niqab and four justices allowed it with certain tests to be administered to ensure a fair trial. The majority, however, stressed that there can be no outright ban on niqab in courts; this is a slap on the face of the Islamophobes. The highest court in Canada has sent a powerful message that it is not going to follow the agenda of racists and bigots, something regrettably courts in the US have succumbed to.