Niqabs in court

An important case opened in the Ontario Court of Appeal today. The court will decide if a woman will be allowed to wear a niqab while she testifies against the men who allegedly sexually assaulted her.

The woman, called N.S. in court documents, has worn the niqab for many years and argues that the Charter protects her religious right to wear it.

The Criminal Lawyers’ Association, one of the intervenors in the case, argues that defendants have a right to face their accusers. They also argue that lawyers need to be able to see facial expressions of the witness they are cross-examining.

Another intervenor is the the Canadian Muslim Congress, who argues that the niqab is a cultural garment, rather than a religious one.

However, the Women’s Legal Education and Action Fund (LEAF), an intervenor on the other side, argues that requiring N.S. to remove her veil will further deter Muslim women from bringing forward sexual assault charges.

The Canadian Civil Liberties Association, also an intervenor on the woman’s behalf, says that women should not have to choose between their religion and justice.

The discussion around this case should not be around whether or not women should wear coverings. It is about accommodating religious practice and protecting survivors of sexual assault. Sexual assault is already extremely under-reported and under-prosecuted. A ruling that finds women must testify unveiled would mean Muslim women would be even less likely to come forward.

This LEAF media advisory explains it well:

The implication of this case for the stigmatized minority group of women who wear the niqab is significant. [LEAF counsel, Susan Chapman] explains: “If niqab-wearing women believe that they will be ordered to remove their niqabs if they seek the protection of the Canadian legal system, will they ever report sexual assault? The message will be that these women can be sexually assaulted with impunity. This is clearly unacceptable.”

“The complaint’s request for an Order that she not be forced to remove her niqab is not an assertion of “special rights” nor is it just based on freedom of religion” says [LEAF co-counsel and Legal Director Joanna Birenbaum]. “The constitutional rights which the complainant asserts are fundamental: the rights to liberty, to be free from state imposed psychological harm, to physical security, to a justice system that operates free of discrimination and prejudice.”

No matter what the ruling, this case will likely go to the Supreme Court.

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