When rights collide, the Canadian way is to seek compromise and accommodation. But sometimes a choice has to be made. One such time involves a sexual assault trial in Toronto where the victim wishes to wear a Muslim face veil, a niqab, while testifying.
The Ontario Court of Appeal tried to evade choosing. It offered a straitjacket of noble principles to the trial judge who will ultimately make the choice. The appeal court was eloquent in defending both the right to a fair trial and freedom of religion. But it shrank from going where its own logic seems to lead – toward an expectation that women will have their face bare, in cases such as this one where their testimony is vital to the state’s case and where their credibility is at issue.
An example of that logic is a statement on why appellate courts should defer to trial judges on the niqab question: “There can be no doubt that judges who actually see the participants in the process are in a better position to make the sensitive determinations required than an appellate court.” The justice system emphasizes the intangible, human elements. Shouldn’t the obligation to remove the niqab follow?
Seeing the participants in a trial is a basic feature of the legal system, for reasons the appeal court sets out clearly. One is that counsel in the heat of a cross-examination battle make decisions partly on visual cues. Another is to help jurors make findings of credibility or reliability.
There is something very fine about a deliberative body that treats with the highest respect the right of a minority individual to her religious customs in the public sphere, a right facing limits in Quebec and France. But the court pushes compromise too far. A courtroom could be virtually closed to men – no male spectators, a female judge, all-female courtroom staff. Even the cross-examining counsel might be required to be a woman. This courtroom-rigging amounts to a system walking on eggshells, not merely balancing rights. An accused in such a courtroom would ask whether the system is emotionally tuned against him.
It’s fair that an observant Muslim woman be permitted to wear her face veil when credibility is not at issue, or she is peripheral to the case. But once the court acknowledged that “an accused who is denied the right to see the full face of a Crown witness, particularly the accuser, during cross-examination loses something of potential value to the defence,” it should have stated unequivocally its expectation that in such cases to the niqab be removed for the sake of a fair trial.