Tag Archives: veil

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

New on SSRN: Face to Face by Robert Leckey (McGill)

Robert Leckey (McGill, other work on SSRN here) has posted Face to Face on SSRN

This draft paper uses queer theory, specifically literature on Bowers v. Hardwick, to analyze debates over legislation proposed in Quebec regarding covered faces. Queer theory sheds light on legal responses to the veil. Parliamentary debates in Quebec reconstitute the polity, notably as secular and united. The paper highlights the contradictory and unstable character of four binaries: legislative text versus social practice, act versus status, majority versus minority, and knowable versus unknowable. As with contradictory propositions about homosexuality, contradiction does not undermine discourse but makes it stronger and more agile.

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.

Ontario Court of Appeal on the Veiled Complainant: What's the verdict?

(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

Nutshell outcome:

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)

j.birenbaum@leaf.ca smchapman@papebarristers.com

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