A judge has ordered a Toronto woman to testify without her niqab at a sexual assault trial — raising the thorny issue of whether Muslim women should be allowed to appear as witnesses wearing a veil that covers everything but the eyes.
The issue is a collision of two rights, pitting religious freedom against the right of a defendant to face an accuser in open court.
The case could be precedent setting because it doesn’t appear there is any Canadian case law addressing the question of Muslim women in the courtroom. In Canada, home to about 580,000 Muslims, the case will be closely watched, amid fears about Muslim women coming forward in criminal cases.
In October, Ontario Court Justice Norris Weisman reached his “admittedly difficult decision” to force the complainant to testify with her face bared after finding “the complainant’s religious belief is not that strong ... and that it is, as she says, a matter of comfort,” he wrote in his Oct. 16 ruling.
In his judgment, Weisman wrote he had conducted a “judicial balancing” act and made his decision, in part, by assessing the strength of her religious beliefs.
Citing the woman’s need for “respect to honour and modesty,” Weisman wrote, “at the 11th hour we learned about one exception in that she has a driver’s licence with her unveiled facial impression upon it.”
She told court she took comfort that her picture was taken by a female photographer and there was a screen between her and potential male onlookers.
Weisman wrote while it may be “one thing for a female photographer to take the picture but that driver’s licence can be required to be produced by all sorts of males,” such as police officers and border guards.
Lawyer David Butt is representing the woman and next month in Superior Court will argue that the ruling should be overturned.
While Justice Weisman was asked to rule at the outset of the preliminary hearing, which is now on hold, the matter was put over and arguments in Superior Court are now scheduled for March 2.