While the split 4 – 2 – 1 decision was hardly definitive, Muslims are celebrating what they call a “landmark” ruling by the Supreme Court of Canada that rejected the call to totally ban the niqab (full face veil) in courts when Muslim women testify.
Crescent Online In its controversial decision on December 20, the Supreme Court of Canada ruled that a woman cannot be denied the right to wear the niqab in a courtroom trial, barring some exceptions. In a 4-2-1 ruling that was written by left wing 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.
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.”