The Niqab’s Place in Canadian Courts

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.”

Overriding someone’s freedom of religion can never be taken lightly, so I decided to look for a dissenting view. I could not find one. Apparently, trampling religious freedom can be taken lightly.

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.

Jonathan McLeod

Jonathan McLeod is a writer living in Ottawa, Ontario. (That means Canada.) He spends too much time following local politics and writing about zoning issues. Follow him on Twitter.


  1. Oh, UGH.

    I totally agree with you, even if the papers of record don’t (there are, of course, scathing protests from people like the International Socialists, but I figure you already found those 😀 .

    Abella’s dissent (in the S.C. case) is exceptionally clear, I think, and based mainly on existing precedent for demeanors being different (eg translators, stuttering, etc.) I wish it had been more convincing! Here’s her closing:

    “A witness who is not permitted to wear her niqab while testifying is prevented from being able to act in accordance with her religious beliefs. This has the effect of forcing her to choose between her religious beliefs and her ability to participate in the justice system. As a result, complainants who sincerely believe that their religion requires them to wear the niqab in public, may choose not to bring charges for crimes they allege have been committed against them, or, more generally, may resist being a witness in someone else’s trial. Where the witness is the accused, she will be unable to give evidence in her own defence. The majority’s conclusion that being unable to see the witness’s face is acceptable from a fair trial perspective if the evidence is “uncontested”, essentially means that sexual assault complainants, whose evidence will inevitably be contested, will be forced to choose between laying a complaint and wearing a niqab, which may be no meaningful choice at all. ”

    I don’t get how anyone could read that and NOT think, “Ok, well, we have to deal with the niqab then.” Fishing people.

    • Certainly there are people who are against the decision, but it was noteworthy that I could not fine one in a prominent or semi-prominent newspaper or website (though, I wasn’t going to spend hours googling).

      It really seems like there’s just an unwillingness to even try to deal with it.

  2. This is tricky. Basic government requires several situations where its important to be able to identify people by their face. Like if you get stoped for some driving violation, the cop needs to be able to make sure that the person in the license is the same as the person driving the car. Border and customs for international travel is another reason. Same for court testimony and witness identification. At the same time, the freedom of the individual and their rights are also supremely important under most democratic theories. Muslim women have the right to wear the niqab and intefering with this right reeks of social engineering.

    My tendency is to leen towards the rights of the individual over the needs of government in most cases. If necessary, you can identify them in other ways. It might be more work on the part of the government and more taxing to the individual but its better to preserve the individaul’s rights.

    • Lee,

      As I note below, identification is a different kettle of fish. I suppose that an argument could be constructed that certain things, such as driving or international travel, are not “rights” and it is fair to say to people, “You can choose to have a Passport or wear your niqab.” I’m not sure I’m okay with that, but I’m more okay with that than I am with saying, “You can choose to participate in the justice system or wear your niqab,” which I am not at all okay with.

      • According to the universal declaration of human rights, international travel is a human right because people have a right to leave their home countries. As to driving, if a country’s transportation and land use policies make a car essential than people should be denied driver’s licenses only if they posess a mental or physical problem that makes driving a risk to others.

        • Lee,

          I hear what you’re saying and largely agree… my language was quite sloppy.

          Perhaps I should think of driving and travel in the same way that I think of utilizing the legal system for your protection. I don’t… and I’m trying to make sense of why.

          Of course, those other systems could be changed to move away from facial identification and include instant DNA, fingerprint, or something else.

    • You should already have a female officer for stripsearching… use same person to id that “yes, person is who she says she is” (if necessary, use a simple booth/tent to provide privacy).

  3. 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.

    This is the tipping point, really. If you do believe, as the common law legal tradition in Canada and the United States does, that observation of the face is useful or necessary for the judge or jury to accurately assess the credibility of the witness, then it is hard to see Judge Weisman reaching any other decision. If not, then there is no impediment to wearing a niqab while testifying.

    There was a similar case in Michigan a few years ago (although not a rape case), with the judge ruling essentially as Judge Weisman did in the Canadian case. FWIW, Eugene Volokh had this to say: “I should note that there’s a lot of controversy among experts about whether observing a person’s demeanor really does help laymen assess the person’s credibility. I have seen claims (I haven’t researched this closely myself) that in fact observation is completely useless except to those who are trained in certain ways. But the importance of demeanor evidence has long been assumed by our legal system, whether rightly or wrongly, and this decision seems consistent with that assumption. It may even be necessary if that assumption is accepted…”

    • I know someone who’s good enough at reading people that one might say he can “cheat” at cards. So, yeah, it is possible. But, then again, that technique (developed in the Arabian bazaar) relies on nothing more than the eyes.

      • Other people might have different techniques that rely upon, e.g., observing muscles around the mouth.

    • There is a lot assumed in common law that is scientifically bulk. Getting rid of these things are tricky though.

    • This is a good point, Pub Editor, and I think it might give more validity to the original ruling by Judge Weisman. He could claim to just be following the legal tradition (though he’s also supposed to be bound by the Charter). The Supreme Court, however, should have much more power to correct these traditions, and they didn’t. And they made it very difficult to try to determine when a niqab should be allowed and when it shouldn’t.

      • I don’t find this decision surprising in the least. There was no chance in Canadian hell that the SCC would come down with anything other than a multi-step, ‘principled’ approach that is incredibly hard to predict. They have been doing this for years.

    • Something I’ve been thinking about today is how much of my reaction is determined by my experience of intermittent face blindness. I mean, I’ve been surprised to realize the person standing in front of me was my husband… so I really don’t take faces very seriously. Now, if I weren’t allowed to hear their voice, or see them move to the witness stand, etc etc, and I were falsely accused – I’d be a lot more frustrated. There are so many demeanor channels, it doesn’t seem necessary to require ALL possible options in cases like this one.

      On the other hand, I also wish we lived in a world where it wasn’t so damn terrifying to testify to having been violated, and where that terror wasn’t so reasonable. So, you know, if wishes were horses.

  4. Great piece, Jonathan. What a tricky issue. Oddly, as anti-religion as I can be, I still think protecting religious rights is really, really important and struggle with this decision. I think we need to consider what we mean when we say “face their accuser”. I’m not a lawyer, but I never understood that to mean use visuals to determine truth or innocence. If that is the case, we could never try a blind person. Rather, I always understood it to mean that we do not prosecute people base on anonymous accusations. And this woman is not anonymous.

    I think the trickier issues arise when identification is the goal. I know there have been conversations about how we photograph women in niqabs for licenses and passports and the like. I’m not sure what the decisions are but think there is a more pressing interest there.

    • I think it’s fair enough to have a different set of descriptors (we do eyes and haircolor, don’t we?)…

    • BTW, Jonathan, I think this post is FP worthy.

      Totes OG… or whatever.

    • Identification is another issue that Canada has been struggling with (recently, Quebec thought it a good idea to ban niqabs for anyone interacting with a government employee – so you couldn’t pay a parking ticket while wearing a niqab). I’m still not sure anyone has identified any actual incidents where this has been an actual problem. I think many legislators and pundits have just jumped to the idea of banning them rather than figuring out a way, as Maribou puts it above, to deal with them.

  5. Fishing stupid decision. Does canada not allow written depositions? If someone is called to testify, must they show up in person?

    • IANAL, but I’m pretty sure that if you want to admit testimony into a criminal trial (of someone who’s not dead or incapacitated), you have to make that person available to testify in open court.

      • I am a lawyer (but not in Canada), and that is my understanding as well. In Canada, I believe the right to cross-examine witnesses against the accussed, in live testimony, before the trier of fact (judge or jury) is one of the rights included in the “right to make full answer and defence,” as interpreted by the courts as part of section 7 of the Charter of Rights and Freedoms.

        • This is correct. Unless you are the accused, you are a compelable witness. Ain’t no other way to sneak in your testimony, assuming you are still alive.

  6. Worth noting that the Canadian criminal code makes exceptions from the right to face the accused in other situations. Minors and disabled individuals may testify behind a screen or outside the court.

    486.2 (1) Despite section 650, in any proceedings against an accused, the judge or justice shall, on application of the prosecutor, of a witness who is under the age of eighteen years or of a witness who is able to communicate evidence but may have difficulty doing so by reason of a mental or physical disability, order that the witness testify outside the court room or behind a screen or other device that would allow the witness not to see the accused, unless the judge or justice is of the opinion that the order would interfere with the proper administration of justice.

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