OTTAWA – The Supreme Court of Canada, in a split decision, has ruled that in certain circumstances, a woman can wear a religious veil known as a niqab while testifying in court.
The landmark ruling in a case that pitted religious freedom against an accused person’s right to a fair trial will affect future cases involving religious accommodation in courtrooms.
In this latest case, a Muslim woman sought to wear a niqab while testifying against two men she claims sexually assaulted her when she was a child.
In a rare 4-2-1 split decision, the Supreme Court referred the matter back to an Ontario trial judge that had just started hearing the case in a preliminary hearing.
The high court outlined a series of considerations that trial judges must weigh in determining whether a witness is allowed to cover their face while on the witness stand.
“Future cases will doubtless raise other factors, and scientific exploration of the importance of seeing a witness’s face to cross-examination and credibility assessment may enhance or diminish the force of the arguments made in this case,” says the majority judgement.
“At this point, however, 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 weigh heavily in the balance, favouring removal of the niqab,” it adds.
“The judge must assess all these factors and determine whether, in the case at hand, the salutary effects of requiring the witness to remove the niqab outweigh the deleterious effects of doing so.”
The controversial issue, which has divided the Muslim community, has reared its head in recent years, leading to a new law in Quebec for public sector workers and new federal immigration rules that ban face coverings while taking the oath of citizenship.
Due to a publication ban, the woman can only be identified as N.S.
The two accused claim the Charter of Rights and Freedoms allows them to confront their accuser and observe her facial expressions as she testifies.