Tag Archives: NS

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

Head to Toe: Joanna Birenbaum for International Women's Day @ Bata Shoe Museum

Rabbit shoeIn acknowledgement of International Women’s Day, a global day commemorating the economic, political and social achievements of women past, present and future join Joanna Birenbaum, Director of Litigation, Women’s Legal Education and Action Fund, as she offers an illustrated talk. The practice of wearing the niqab in Canada has recently received significant public attention and Birenbaum will talk about Canadian law’s response to women who wear the niqab, and whether women’s equality can be advanced by legislating how women dress.