The Muslim woman who wants to wear a niqab while testifying in a sexual assualt case has lost her bid to have a unimpeded right to keep her veil on.
In a split decision, the seven judges on the panel largely upheld the lower court's ruling that she may have to remove her niqab.
In a dissenting decision, Justices Lebel and Rothstein ruled that she should not wear her niqab at all.
The Supreme Court grappled with a legal dilemma in ruling whether a woman could testify in court wearing a niqab: on the one side is a religious belief said to be sincerely held, and on the other, the right of an accused to a full defence. (Peter McCabe/Canadian Press) Justice Abella went the other way in dissenting, and would have allowed the niqab except in circumstances where the identity of the witness was at stake.
The ruling largely upholds criteria established by the Ontario Court of Appeal.
The Court of Appeal had ruled that the woman may have to remove her niqab if her credibility became an issue. It also set out criteria that a judge must consider: whether the veil interfered with the cross-examination, whether the witness would be appearing before a judge only or before a jury and the nature of the evidence.
N.S., as the woman is referred to, appealed to the Supreme Court, arguing that her sincere religious beliefs meant that her face must be covered before all males who are not close relatives. Lawyers for the two men accused of sexually assaulting her when she was a child argued that a fair and open trial means a witness's face must be seen because, they argued, facial cues are important to establish credibility.
The case now goes back to the preliminary inquiry stage, where it is possible the woman may be forced to testify with her face uncovered.
The ruling is being described as a 4-2-1 decision, given the differences between the dissenting judges.
The majority judges leaned heavily in favour of removal of the niqab. "It may be ventured that where the liberty of the accused is at stake, the witness's evidence is central to the case, and her credibility vital, the possibility of a wrongful conviction must weight heavily in the balance, favouring removal of the niqab," the majority said.
Balance of rights
The case presented a legal dilemma: on the one side is a religious belief said to be sincerely held, and on the other, the right of an accused to a full defence.
The woman, whose identity is protected by a publication ban, accused an uncle and a cousin of repeatedly sexually assaulting her from the time she was six until she was 10. Years later, in 2007, she went to the police, but the case has not yet gone to trial.
At a preliminary hearing, the woman explained she cannot show her face to any men who are not close relatives. The judge took brief unsworn evidence from her while her face remained covered but did not allow counsel to examine her or call any evidence. The woman was ordered to remove her niqab in order to testify in court.
She objected to that judge's order and appealed. First Ontario's Superior Court ruled and then the Ontario Court of Apeal upheld a decision that quashed the first judge's order to remove her face covering.
Lawyers for the accused men argued that facial cues "can be significant information that help the observer understand what a witness is attempting to communicate and get a sense of who the witness is and how he or she is reacting to questioning."
The accused men's lawyers also say that is not clear whether the woman sees her niqab as a religious requirement, or as "a personal preference and a matter of comfort."
Removed niqab on other occasions
Part of the court evidence is that the woman did remove her niqab to be photographed for a driver's licence, in front of a female photographer. Lawyers for the accused men point out that her religious convictions were not so strong that she refused to go through the licensing process, even though the photo could be demanded by any number of police officers who might be men.
The woman's lawyer argued that having a photograph taken for a driver's licence is not analogous to testifying about intimate sexual details in a courtroom in front of strangers.
"What is religion for if not to bring comfort?" David Butt argued.
Butt said the job of the court is not to be the arbiter whether the practice of Islam really does require that women be completely covered. Although he conceded many see it as a symbol of female oppression, he thinks an order to remove it is another form of paternalism.
"At the centre is the notion of choice ... some people's choices will be distasteful to others," the lawyer said.
Anda sedang membaca artikel tentang
Top court rules judges may order witnesses to remove niqab
Dengan url
http://beritaluarindo.blogspot.com/2012/12/top-court-rules-judges-may-order.html
Anda boleh menyebar luaskannya atau mengcopy paste-nya
Top court rules judges may order witnesses to remove niqab
namun jangan lupa untuk meletakkan link
Top court rules judges may order witnesses to remove niqab
sebagai sumbernya
0 komentar:
Posting Komentar