Tag Archives: niqab

Ruling on NS/Niqab (bonus, link to Anita Hill on CBC radio this am)

For those who are interested, here are Justice Weisman’s ruling on the 2 time round for N.S. (niqab wearing complainant in sexual assault trial).  He finds that she will have to remove the niqab for the preliminary inquiry.  N.S. will appeal at least partly on the basis that the judge refused to hear evidence about the unreliability of demeanor evidence.   Note that in the counsel list, N.S. doesn’t have counsel – though her counsel on the appeals, David Butt, did testify in front of the preliminary inq judge earlier this month.  Thanks to JB for the file.  Here’s my Osgoode colleague, Faisal Bhabha (who acted for intervener Canadian Council on American-Islamic Relations at the Supreme Court) on the Radio this morning about the case.

Here’s something more uplifting – Anita Hill was on CBC radio this morning!

In the early 90s when a law professor named Anita Hill appeared before a U.S. Senate committee considering the Supreme Court nomination of Clarence Thomas, her allegations of sexual harassment would force a nation-wide debate on women’s rights and an education for a row of Republican and Democratic male Senators who had clearly never before been publicly forced to confront such realities in their cavernous halls of power. Today, we speak to Anita Hill on what’s changed and what has not.

Listen here.

The documentary, Anita, is on at HotDocs in Toronto (click here for times/tickets still appear to be avail for May 4)

From Oscar-winning filmmaker Freida Mock comes her latest feature, Anita. In 1991, Anita Hill’s powerful testimony at the confirmation hearings for then-Supreme Court nominee Clarence Thomas brought sexual harassment into America’s national spotlight. Twenty years later, Ms. Hill revisits those hearings and for the first time on film speaks about the gruelling nine-hour experience of confronting an all-white male jury who demonstrated little sensitivity towards sexual harassment. A sometimes painful and shocking look back, she reflects on how that testimony shaped her life and consequently a nation. This is a must-see film, particularly for young women, for the understanding it offers on how these historic hearings treated sexual harassment and how dismissively it was viewed by the public. Heather Haynes [from HotDocs website]


NS: Veiled Rejection [a very cursory roundup]

NS Finally came out today, as you probably know. The Supreme Court cases considered how law should deal with the claim of a niqab (don’t know what that is? check here)  wearing woman who was to testify as a complainant in a sexual assault trial that wearing the niqab was a religious right – when the accused claimed the wearing of the veil contravened his fair trial rights.

Here is a little roundup.
First, the decision (my nutshell: N.S. Majority: Balancing. LeBel & Rothstein: Niqab is incompatible w fair trial. Abella dissents: No need to remove. )

Second, commentary. There’s not much deep commentary today, but there are quick thoughts and helpful summaries.

My colleague Ben Berger on CTV notes Abella’s foregrounding of #gendered #violence.

My colleage Faisal Bhabha, who appeared for one of the interveners who supported N.S., here in the Globe and Mail.

The court made it very clear that people are not required to park their religion at the door, so to speak,” said Mr. Bhabha…

Poli Sci Prof Emmett Macfarlane in Macleans here.

Balancing rules are akin to parking a tank on one side of a seesaw, writes Emmett Macfarlane…

So long as the decision to wear the niqab is made freely, it ought to be respected from a rights perspective. And in weighing so heavily the risks to a fair trial over not just the latitude given to religious freedom, but also the deleterious and societal effects of providing insufficient protection for them, the majority has handed trial courts a messy confluence of rules likely to do more harm than good.

Ruthann Robson of CUNY law putting Canadians to shame with her quick off the mark blog post here.

“From the perspective of US conlaw scholars, whether or not interested in comparative constitutional law, the Canada Supreme Court’s opinion in R. v. N.S. is an important one seeking to balance rights and addressing an issue that is percolating in the United States courts.”

There is much quick commentary available – especially on Twitter – all very canadian and clean.

From the Abella reasons:

[94]                          This has the effect of forcing a witness to choose between her religious beliefs and her ability to participate in the justice system: Natasha Bakht, “Objection, Your Honour! Accommodating Niqab-Wearing Women in Courtrooms”, in Ralph Grillo et al., eds., Legal Practice and Cultural Diversity (2009), 115, at p. 128.  As a result, as the majority notes, 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.  It is worth pointing out as well that where the witness is the accused, she will be unable to give evidence in her own defence.  To those affected, this is like hanging a sign over the courtroom door saying “Religious minorities not welcome”.

[95]                          The order requiring a witness to remove her niqab must also be understood in the context of a complainant alleging sexual assault.  As this Court stated in R. v. Mills, [1999] 3 S.C.R. 668, “an assessment of the fairness of the trial process must be made ‘from the point of view of fairness in the eyes of the community and the complainant’ and not just the accused” (para. 72): see also R. v. O’Connor, [1995] 4 S.C.R. 411, per McLachlin J., at para. 193.  Creating a judicial environment where victims are further inhibited by being asked to choose between their religious rights and their right to seek justice, undermines the public perception of fairness not only of the trial, but of the justice system itself.

those thoughts are also behind this tweet from @blberger

@blberger LeBel J (concur) in NS: no niqab b/c it “removes the witness” from acts of communication. Worry is literal “removal” of complainants, no?

Second last word

last word:

Your links and thoughts welcome in the comments or on FB

Hoodies (What not to wear, encore)

Osgoode’s Black Law Student’s Association put out a call for members of the Osgoode community to wear red/black hoodies in a photo today as a sign of “solidarity with Trayvon Martin and his family in their time of tragedy” (March 29, 2012 12:15pm Atrium).  The facts of Martin’s murder (which is, of course, a legal term of art that I’m using even though it’s pretty clear that Florida doesn’t think it applies) are egregious and covered everywhere in news and commentary (I particularly like Colorlines, and Ta-Nehisi Coates in the Atlantic for his incredibly thoughtful passion on a variety of topics).

Canada, of course, has very different gun laws and self defence laws.  A stand in solidarity with the family knows no boundaries or jurisdiction, but what other actions on this issue might be meaningful for Canadians?  Let us assume that a Zimmerman here would be in custody.  Is this a U.S. issue?  Of course, it is not, though the context here is different.   It made me think of three things, so I’ve just done a little roundup of links based on these different lines of thought.

First, of course, about state sponsored profiling, surveillance and violence against people, particularly young men, of colour.  Any who haven’t had a look at the Toronto Star’s recent series “Known to Police” about the incredible levels of police stops/documentation of black and brown people, particularly in certain city neighbourhoods, you can find it here.  Early last year, I did a few posts on profiling arising out of the case of Stacy Bonds, in Ottawa, because I thought these highlighted gender as a sometimes hidden issue in profiling – for both racialised women and men, gender is very relevant to the context and consequences of “profiling”.  These are critical issues for Canadian law enforcement.  If you’re interested, I recommend following the activities of U Windsor Law’s “LEAP” (Law Enforcement Accountability Project), hereDirector Prof. David Tanovich writes about and litigates in racial profiling cases.


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Second, I thought about the clothing thing.  Hoodies, Hijabs, slutty clothes.  Too little, too much, scary, provocative.  I appreciate the importance of the hoodie protests, but I did love the one below, from Wake Forest students, which mixes hoodies and hijabs.  This blog has had a significant amount of stuff about the niqab, but mainly centered around the niqab in court case, N.S. (see here).  I haven’t looked at the cases of women who are accosted in public and assaulted by people who try to tear off their veil like this one, or this one, nor at more common incidents of discrimination against women wearing the scarf, the veil, niqab or burqa.  There is a recognition of the connection between these two items.

There is also significant recognition of the ways in which placing the blame on the hoodie replicates the narrative which sees rape as a consequence of women’s clothing choices (see here for all the IFLS posts on slutwalk and related issues).   So lest you wonder whether Hoodies are a Feminist issue, there are, in my view, at least 4 solid central reasons that the answer is yes.  Audre Lorde puts one of the reasons better than I ever could:

Some problems we share as women, some we do not. You [white women] fear your children will grow up to join the patriarchy and testify against you; we fear our children will be dragged from a car and shot down in the street, and you will turn your backs on the reasons they are dying  .
Audre Lorde, “Age, Race, Class, and Sex: Women Redefining Difference”

My last thought was that I don’t need to analogize Zimmerman to police in order to get into the Canadian context. I can look to private security companies, particularly in malls or even the security provided at Universities and Colleges and schools, and the ways that these entities engage with the racialized public.  See here for the Ontario Human Rights Commission’s info sheet on profiling – it goes far beyond police, and beyond security guards.  The OHRC’s 2003 Report, the Human Cost of Racial Profiling, isn’t purely law enforcement focused.  It takes testimony from those members of our community who have been directly affected, and is worth a read:

“It would be interesting if the powers that be would at least listen to the comments coming out of the affected communities. An entire community cannot have the same impression and … all [be] deluded.” (R.M.) (The Human Cost of Racial Profiling, p13)

“This situation actually scares me because I have teenage children and I have an older son, and I fear when they go into a mall … I constantly counsel my son because of issues like this that occur about going out into the public and how to conduct yourself and what happens if something like this happens, the reaction is anger, the reaction is frustration, at their young age, if they react, then the situation escalates even further.” (L.V.) (at p21)

“My friends who are White are bewildered because their sons do not get stopped, and my friends with Black children are afraid, because they have already had their own teenaged sons stopped, or they have young sons coming up who they know will experience the same treatment. … “(D.W.) (at p25)

I include these testimonials because I wonder what I should along with standing in the photo (if they let me, my hoodie isn’t the right colour, i had only brown and orange, not red or black…).  Trayvon’s case seems, to so many, such an obvious miscarriage of justice – a true travesty, so egregious.  But the reality is that profiling is normalised, that blaming people for the misfortunes they experience because of what they wear, for the suspicions that fall upon them because of how they look, is so ordinary as to be an organizing factor in our daily lives.  It’s true for me that, hoodie or not, these days I could probably walk around Mount Dennis (one of the neighbourhoods the Star focused on in their Known to Police series) for days without getting stopped.  It’s been a long time since the last time I think my partner was racially profiled (he speeds, so not every stop is suspect).  Even the cousins and friends are aging out of the bad years.  I don’t have as much time as I used to have to hang about in the mall with my friends, and the suspicions of sales people about who has enough money to be where feel insulting but not dangerous to me because of class/professional privilege.  So what should I be doing?   I don’t wear the hijab.  And I’ve kind of aged out of certain kinds of reactions others might have to my clothes.   How should I be demanding accountability from our police forces? How should I be challenging the daily, non police, profiling that goes on?  What political and personal actions can I take?  I’ve got some ideas.  I could use more.


As a postcript, this morning on CBC a caller pointed out the way that the word hoodie itself brings in the notion of “hood” – bad guy.  Check out Law Prof Antony Paul Farley’s poetic riff on the word here, at SaltLaw,  Or revisit David Cameron’s so called “hug a hoodie” speech: “For some, the hoodie represents all that’s wrong about youth culture in Britain today. For me, adult society’s response to the hoodie shows how far we are from finding the long-term answers to put things right.”.  One of my colleagues told me that the hoodie, in Saskatchewan, is called a Bunny Hug.  And not that I was checking up on her, but I googled it, and I found corroboration in … the Miami Herald?   The piece closes with a clear hit:

Humans give fashion its meaning. Not the other way around.




Roundup of IFLS Recent Tweets

In case you aren’t a twitter person, I sometimes put news up on our twitter feed at @osgoodeifls – and I often retweet news from others – here’s a recent roundup.  We also tweet all our posts, if you prefer to get them that way.

Hope you had a happy st. patrick’s day!


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