Canada's Supreme Court Rules on Muslim Veil
Canada's top court ruled Thursday that Muslim women wearing the niqab can be forced to remove their veils when testifying, but only if absolutely necessary and after any objections have been considered.
The case, considering a rape victim's request to wear the veil at trial, pitted religious freedoms set out in the constitution against a defendant's right to face an accuser in court, which is deeply entrenched in Canadian law.
"An extreme approach that would always require the witness to remove her niqab while testifying, or one that would never do so, is untenable," the Supreme Court said in its decision.
"The answer lies in a just and proportionate balance between freedom of religion and trial fairness, based on the particular case before the court."
The justices said women wishing to wear the niqab while testifying in a criminal proceeding may be required to remove it if it threatens a fair trial, there are no alternatives, and the pros of requiring her to remove the niqab outweigh the cons.
They also set out a list of criteria for judges to consider in making these decisions, including assessing the strength of a woman's religious convictions, and possible harms, for example, discouraging niqab-wearing women from reporting offenses, or the possibility of a wrongful conviction based on a witness's key evidence and whereby her credibility is vital.
In this case, an appeals court found that the lower court had not properly assessed the religious claim of the victim, known only as N.S., when it ordered her to remove her niqab while testifying against her alleged assailants.
The Supreme Court sent the case back to the lower court to reconsider based on the new set of criteria.
The case dates back decades. The now 34-year-old woman claimed she was sexually assaulted and abused by an uncle and cousin between 1982 and 1987.
In 1992, her father asked police not to go ahead with the charges against the relatives. But the woman later asked police to reopen the case.
The case has sparked fierce debate in Canada especially among members of the legal profession and rights groups who staked out opposing viewpoints on the niqab.
Critics of the veil argued that affording a witness a degree of anonymity undermines the transparency and individual accountability in the criminal justice system, which risks compromising public confidence in criminal trials and verdicts.
Defense lawyers said that allowing a witness to testify with her face partly covered limited their ability to asses the witness's demeanor, relevant in assessing their credibility and the reliability of the evidence they present.
As well, non-verbal communications could provide a cross-examiner with valuable insights, they said.
The Supreme Court agreed. However, it also added: "Where evidence is uncontested, credibility assessment and cross-examination are not in issue."