In December, the Supreme Court of Canada was asked to determine if women were allowed to wear a niqab or other face coverings while testifying in court. The case involved a Muslim woman who was victim of a rape. The defendants demanded that she remove her niqab when she testified, on the grounds that they must be able to face their accusor. The judge, Norris Weisman, agreed. The victim, unwilling to abandon her religious convictions to seek justice for a sexual assault, went to the Supreme Court. The Supreme Court punted.
The highest judges in the land couldn’t really decide. In a 4-2-1 decision, they determined that the matter should be decided by the trial judge on a case-by-case basis, using a rather vague set of decision-making guidelines. Instead of a clear decision we received, as J.J. McCullough puts it, a “migraine-inducing Magic Eye puzzle of judicial obscurantism”.
So in our original case, the decision bounced up to the Supremes who lobbed it back down to the trial judge, and wouldn’t you know it, using the muddled directions of the Supreme Court, Judge Weisman came to the exact same decision he came to before. Religious freedom is not as important as the right to face your accuser.
Writing in National Post, Jonathan Kay applauds the decision:
But of course, humans often lie. And the age-old mechanism we rely on to sniff out lies is scrutiny of the senses: Do the eyes shift or tear? Do the hands fidget? Does the brow sweat? Does the mouth mumble? Does the face flush? That is why witnesses appear in open court: so judge and jury can observe them, and assess their credibility, as exposed under zealous cross-examination, to the extent that the five senses permit. It’s an imperfect system. But it’s the best we non-robots have got.
In retrospect, Justices Marshall Rothstein and Louis LeBel clearly had the better argument when they declared — in their Darrach dissent — that wearing the niqab in this context is not only “incompatible with the rights of the accused [and] the nature of the Canadian public adversarial trials,” it also conflicts with “religious neutrality.”
I am a little disturbed by the apparent unanimity on this issue. I understand that the accused have a right to face their accuser, but does not justice also have some concern for victims – and not just the victim in this case, but potential future victims? We are talking about a women was, allegedly, intimately violated by men. A woman who had her personal dignity, sovereignty and privacy breached. Should the inherent vulnerability that comes with such a crime not be considered when we ask a woman to contravene her religious teachings and expose herself to the court – including those accused of raping her?
J.J. McCullough notes that many pundits and editorial boards lauded the Supreme Court for coming to a (stereo)typically “Canadian” solution, balancing the needs of many individuals and treating nothing as sacred. But did they really do this, or did they just give lower court judges the power to victimize a small, vulnerable subset of the population? I see no balance in Judge Weisman’s decision.
Let’s re-visit Mr. Kay’s argument, that we need to be able to see someone’s face to properly gauge the truth. What information does he cite? Is he just a big Tim Roth fan? I find it highly dubious to think that we are so damned good at telling lies from people’s facial expressions that we need to disrobe rape victims in open court.
I am highly doubtful that it serves any kind of justice to set up one more barrier for women who have been raped.
Mr. Kay notes that two of our esteemed justices argued in favour of de-veiling women so as to achieve some sort of religious neutrality. This is such an incredibly noxious statement born from white men’s comfortable privilege. There is nothing neutral about declaring one expression of faith to be out-of-bounds in court. And the idea that these men can tell muslim women which of their beliefs are real or of sufficient value to be protected in Canada is repellant.
There may be a valid reason to force this woman to take off her niqab. I have yet to hear anyone make it.