The Ontario Court of Appeal has ruled that the victim of an alleged sexual assault may not have to remove her niqab while testifying as long as the fairness of a trial is not compromised.
In the 3-0 ruling Wednesday, the court upheld an earlier decision by the Superior Court.
A lower court had ordered the 32-year-old Muslim woman, identified only as N.S., to remove the traditional veil, which covers most of her face.
The case began in 2007 when the woman told police that her cousin and uncle repeatedly sexually abused her while she was between six and 10 years old.
During the preliminary inquiry, which is held to see if there is enough evidence to go to trial, the judge ordered N.S. to remove her veil to testify. That decision was appealed to the Superior Court, which quashed it.
"The preliminary inquiry judge did not conduct a proper inquiry into N.S.'s religious freedom claim. His order directing her to remove her niqab while testifying constituted an error in law on the face of the record. That order should be quashed," wrote Justice David Doherty for the majority Wednesday.
However, Muslim witnesses wearing a face-covering niqab must remove it to testify if in rare cases the covering would truly jeopardize a fair trial, the court said.
"If, in the specific circumstances, the accused’s fair trial right can be honoured only by requiring the witness to remove the niqab, the niqab must be removed if the witness is to testify," the court ruled.
The Appeal Court stopped short of saying N.S. can give evidence in front of a jury with most of her face shielded by the niqab.
Rather, the court said N.S. should be given an opportunity to explain the connection between her religious beliefs and the wearing of the niqab, and demonstrate the sincerity of those beliefs through a more thorough preliminary hearing.
'Making people feel welcome'
David Butt, the woman's lawyer, had argued that the time-honoured right of a defendant to face an accuser should be waived in this case.
Even though judges and jurors often cite demeanour evidence — mannerisms of witnesses while testifying — as important, Butt suggested the accessibility of the court system is more important.
"Really, it's all about making people feel welcome in our judicial system at a time when they're undergoing significant stress — for example, by being a complainant in a sexual assault case," he said.
Lawyer Susan Chapman of the Women's Legal Education and Action Fund had said that she supports the woman's appeal. Forcing N.S. to remove her veil will deter other niqab-wearing women from using the justice system.
"Anything that might discourage them from doing that, such as a religious woman being made to remove a piece of religious clothing, we'd be concerned about," Chapman said.
Raheel Raza, director of interfaith affair at the Muslim Canadian Congress, had said wearing a face covering is not a religious requirement of Islam.
"If this is passed and the woman is allowed to appear with her face covered, how's this to stop anyone else to come into court with their identity and their face covered?" Raza said.