*** Ignorant interpretations of Shariah are obsolete - welcome to the Sharia of the West where the rights of all - including a brave Muslim woman sexually assaulted by a relative - can wear her veil AND get her justice. This proves - again - that Canada is one of the most fair and just countries in the world - so terrorists need not make the argument it is anti-Islamic and deserving of destruction. They will protect the rights of your mother, sister, daughter - even you. THAT is Islamic. THAT is justice. MS ***
She remains very much a mystery, a woman known as N.S., whose niqab shrouds everything but her eyes.
And as she heads to court Tuesday in a battle to wear the veil while testifying, she is being compared to heroines of civil rights struggles.
“Henrietta Muir Edwards just wanted to sit in the (Canadian) Senate. Rosa Parks just wanted to sit at the front” of the bus, David Butt, a lawyer representing N.S., says in a written argument filed with the Ontario Court of Appeal.
“N.S. just wants to sit in the witness box wearing her niqab.”
The case, which will be heard by a three-judge panel over two days, pits religious freedom against the right to a fair trial under the Charter of Rights and Freedoms. It is also the first time in Canada that the courts have been asked to rule on whether the religious head covering can be worn by a witness at a trial.
A recent Angus Reid poll found a majority of Canadians support a proposed Quebec law that would refuse government services to women wearing a niqab or burqa.
Lawyers for two men charged with sexually assaulting N.S. when she was a child say the ability to confront one’s accuser and assess that person’s demeanour during cross-examination is a crucial component of their right to defend themselves.
But a prominent women’s organization says forcing N.S., who is Muslim, to remove her head covering is a form of “undressing” at the request of the accused and amounts to a symbolic “re-enactment” of the crime.
“At a personal level for niqab-wearing women, such an order may very well be experienced as public stripping and nakedness,” argue Susan Chapman and Joanna Birenbaum, lawyers for the Women’s Legal Education and Action Fund, one of several intervenors in the case.
While screens have been used in Canadian courtrooms to shield witnesses, particularly child witnesses testifying in sensitive circumstances, they are designed to block the witness’ view of the accused — not vice-versa.
Butt and another group intervening in the case argue that how a person looks when answering questions isn’t useful in determining whether they are telling the truth, so nothing would be lost if N.S.’s face couldn’t be seen.
“Poker is an interesting game precisely because demeanour can be so misleading,” Butt says.
Courts regularly accept testimony from witnesses whose demeanour can only be partially observed, said Bradley Berg and Rahat Godil, lawyers representing the Canadian Civil Liberties Association.
“The right to make full answer and defence is not infringed when a witness is blind, or when a witness’ mouth occasionally twists into a grimace due to a congenital defect,” they say in their material.
But in an affidavit, Jack Pinkofsky, a lawyer for one of the two men charged with assaulting N.S., explained how being able to observe the reactions of a witness could have a bearing on an accused person’s defence.
“I might conclude, easily, that the witness is prevaricating, the witness is not being forthright and I may want to explore that area further.”
One possible outcome, should N.S. be forced to remove her niqab, is that she might decide not to testify, Berg and Godil have told the court.
If that happens, everyone is a loser, they contend.
The consequences include “the potential loss of valuable testimony, compromising society’s interest in truth through the trial process . . . and marginalizing religious minorities and infringing their right to access the justice system.”