Ngaire Naffine is a Professor in the Faculty of Law at the University of Adelaide. She is visiting Osgoode from September 17 to October 12 under the aegis of the Genest Global Visitor fund. An innovative contributor to debates in jurisprudence, feminist legal theory, criminology, criminal law, and medical law, Professor Naffine is the author of, most recently, Law’s Meaning of Life: Philosophy, Religion, Darwin and the Legal Person (Hart 2009). See here for her faculty webpage and here for a couple of papers available on SSRN. Here’s her listing in the Yorku Libraries catalogue. She’s delivering at least two public lectures during her stay. The first is Monday, September 24, 2012, 12:30pm-2pm, Room 2027, and is jointly sponsored by the Institute for Feminist Legal Studies and the Osgoode Colloquim on Law, Religion & Social Thought.
The Legal Person After the Sexual Revolution
Criminal Law, the Family and the Church have worked together as a mutually reinforcing economy, keeping the married woman in her place. All three institutions have prescribed rules for intimate married life, conferring authority on the husband, never the wife. But times are changing. The traditional marital rights of men have been formally curtailed, husbands can be charged with the rape of their wives and the married woman now has at least formal powers to refuse sexual access. The family has loosened its form and the power of the Church over intimate sexual matters has diminished. What are the effects of this modernisaton of the lives of married women and men on the character of the criminal legal person. Are they his undoing?
Lunch will be served, so please RSVP at http://www.osgoode.yorku.ca/research/rsvp and enter Event Code: LRST3
Professor Naffine’s second lecture will be on October 1, at 1230-2 in room 1003. It is entitled “The Gorilla in our Midst: Inattentional Blindness to Sanctioned Brutality in Criminal Law”,If you are interested in attending, please RSVP to email@example.com.
Students are welcome at both events.
I couldn’t find a Table of Contents or contributor list. Looks interesting from the little that’s out there….
Debating Sharia: Islam, Gender Politics, and Family Law Arbitration
Anna Korteweg University of Toronto, Sociology
Jennifer Selby Memorial University of Newfoundland, Religious Studies
Crimes of Honour: The Interplay of Culture, Religion, and Law.
At the OBA, presented by the Canadian Race Relations Foundation
A round-table discussion with Dr. Naila Butt, Executive Director, Social Services Network Dr. Anna C. Korteweg, Ass. Professor, Munk School of Global Affairs Dr. Mohammed Baobaid, Executive Director, The Muslim Resource Centre for Social Support and Integration (MRCSSI) Gillian Blackell, Senior Counsel, Department of Justice Canada Shelley Saywell, award-winning Director & Filmmaker Moderated by Dr. Ayman Al-Yassini, Executive Director, CRRF
Wednesday, March 28, 2012 – 5:45-7:30 pm
ONTARIO BAR ASSOCIATION
Grand Salon – 2nd Floor
20 Toronto St, Toronto, Ontario, M5C 2B8
FREE ADMISSION ♦ REFRESHMENTS ♦ RSVP: firstname.lastname@example.org
(this post now updated with LEAF’s press release, see below)
N.S. came down today. Decision here: http://www.ontariocourts.on.ca/decisions/2010/october/2010ONCA0670.pdf
Going back to the Preliminary Inquiry judge. More “interrogation” of the complainant is necessary to determine how to reconcile the rights at stake. It could be that she can wear the veil – or perhaps not.
Other points that jumped out at me:
Check out the sunglasses hypothetical at para 42!
LEAF’s argument that the case requires section 7 and 15 of the Charter was rejected on the basis that these were not argued at the lower level.
“Adjusting the process to ameliorate the hardships faced by a complainant like N.S. promotes gender equality.” para 80
“Attempts to reconcile competing interests using “constructive compromises” might include the use of an all female court staff and a female judge. Those measures might also include, where constitutionally permissible, an order that a witness be cross examined by female counsel.” para 85
Click here for an earlier post about this case.
I need more time to read and digest, but here is LEAF’s Press Release:
Ontario Court of Appeal Recognizes Importance of Access to Justice for Niqab-Wearing Women
|October 13, 2010 – Toronto – The Ontario Court of Appeal released its decision today in the case of R. v. N.S. on the right of a sexual assault complainant to testify wearing her niqab.
“The Court sent a strong signal today that sexual assault complainants will be permitted to wear their niqabs while testifying, subject to limited exceptions and the strictures of the complainant’s religious beliefs” says LEAF legal director Joanna Birenbaum. “This is a significant decision affirming the importance of fair trials and access to justice for Muslim women and all sexual assault complainants”.
The Court of Appeal judgment specifically recognizes the “powerful” nature of the complainant’s rights to wear her niqab while testifying, and the unique “hardships” and “particularly vulnerable position” suffered by women who report sexual assault.
The Court also recognizes that Muslims are a “minority that many believe is unfairly maligned and stereotyped in contemporary Canada” and that a failure to adequately consider the complainant’s rights could “legitimize that negative stereotyping”.
“It is also important that the Court confirmed the unreliability of demeanor evidence in general and in the specific circumstance of sexual assault” says LEAF co-counsel Susan Chapman. “The Court went so far as to hold that allowing the complainant to wear her niqab could advance the truth seeking function of the criminal trial”. The Court noted that a complainant who normally wears the niqab and is required to unveil cannot be expected to “be herself” on the stand. A trier of fact might well be misled by her expressions of embarrassment and discomfort.
The Court held that the ultimate decision of whether to permit a witness to testify wearing a niqab must be determined on a case by case basis. A bald assertion of a right to demeanor evidence is unlikely ever to be sufficient, particularly at the preliminary inquiry stage.
LEAF asked the Court of Appeal to consider the demand that a sexual assault remove her niqab in the context of the long history of sexual assault complainants being harassed, re-victimized, humiliated and intimidated, especially at the preliminary inquiry. Such tactics have long been used to shut down prosecutions or prevent women from reporting sexual assault in the first place.
Chapman explains that “LEAF is pleased that the Court of Appeal recognized this history of discrimination and has clearly indicated that objections to the niqab must be carefully scrutinized in order to fully protect and respect the complainant’s rights and the interests of society in just and fair criminal proceedings”.
For more information, please contact:
Joanna Birenbaum Susan Chapman
(LEAF Litigation Director/Co-Counsel) Co-Counsel
(416) 595-7170 ext. 223 (office) (416) 364-8773 (office)
(647)500-3005 (cell) (416) 276-2794 (cell)
LEAF is a national, non profit organization committed to confront all forms of discrimination through legal action, public education, and law reform to achieve equality for women and girls under the Charter of Rights and Freedoms. For more information, please visit us at www.leaf.ca
Lots of people, I’m sure, are looking forward to seeing the Ontario Court of Appeal’s decision in N.S., a sexual assault case in which the complainant was ordered to remove her niqab after the accused (her uncle and his friend) argued it interfered with their right to a fair trial.
In anticipation of the decision, which should be handed down in the near future, check out this link to What’s in a Face? Demeanour Evidence in the Sexual Assault Context, available on SSRN. The author is Ottawa Law Prof. Natasha Bakht. Natasha, who is currently on leave, is in a class of her own. She’s an award winning dancer and choreographer in addition to her “day job”; she edited Belonging and Banishment: Being Muslim in Canada. I look forward to hearing her thoughts on this case when it comes down.
What’s in a Face is part of a larger collection edited by Elizabeth Sheehy, coming from Ottawa U Press.
SEXUAL ASSAULT LAW, PRACTICE AND ACTIVISM IN A POST-JANE DOE ERA, Elizabeth Sheehy, ed., University of Ottawa Press, Forthcoming 2011 .
The case began in 2007 when a woman, now 32 and identified only as N.S., told police that her cousin and uncle repeatedly sexually abused her while she was between the ages of six and 10.
During the preliminary inquiry, which is held to see if there is enough evidence to go to trial, the judge ordered N.S. to remove her veil to testify. …..
A lawyer for one of the defendants said N.S. has not said she refuses to testify without her face covered, just that she would feel more comfortable wearing the niqab.
Without being able to view the face of a witness, clues to her demeanour are lost and impede the defendants’ ability to fully cross-examine her, Michael Dineen said.
He gave an example of a teenage witness in a recent murder trial who changed her story on the stand after a defence lawyer questioned her about smirking after giving an answer.
Want more on N.S.?
Here’s LEAF’s Factum.
Here is a report from the hearing, which is kind of fun (the judges do seem to be leaning in N.S.’s favour). ah, the globe has put this one behind the pay wall.
Hey, and there’s no photo of a woman in a veil here, even though i could easily pick up a stock shot somewhere: See Why do Western Publishers have a Veil Fetish? http://www.slate.com/id/2153013/ by Asra Q. Nomani for an interesting argument which will resonate in your brain each time you see a picture of a nameless veiled woman illustrating a media piece.