go again. Muslims just don�t give up trying to change our values and roll back
hard fought rights of equality and justice. Though this time, we may have
nipped it in the bud early -- but should we?
Court Justice Norris
�admittedly difficult decision� to force a complainant to testify without her
niqab, or face covering, in a
sexual assault case has unleashed a torrent of discussion and debate. Again,
the usual suspects with too little knowledge, appreciation or understanding of
the complexities of the issue have jumped into the fray.
once again brings to the fore questions surrounding the limits of accommodation
in a liberal multicultural society. But this time, in a novel twist, the clash
pits a person�s religious right with the right of a defendant in a criminal
trial to due process and procedural fairness; namely that of being able to face
his or her accuser in open court. Obviously, both are important rights in a
-- which a small fraction of orthodox Muslim women use to cover their faces,
and not to be confused with the hijab or head covering -- is attacked by
some as a symbol of oppression. By others as a badge of political Islam. By
others as a public-relations nightmare for their �moderate� or more palatable
versions of Islam. By others as something that should be compromised in the
two-way dance of accommodation. And still by others as not compulsory or even
totally unnecessary from a strict Islamic legal point of view.
vast majority of Islamic scholars do not believe it is fard, or compulsory. A few acknowledge that
it is recommended. And a very small fringe believe it is compulsory. But even
these jurists will defer to Islamic rules of necessity (darura) and
public interest (maslaha) to sanction its removal in certain official
and medical contexts; ranging from identification to security needs.
It is also
interesting to note that scholars are unanimous in holding that the face must
be uncovered during circumambulation of the Kaaba in Mecca, during what is
arguably considered a peak moment of Islamic spirituality.
non-Muslims are quick to oppose this practice, to borrow the idea and phrase
coined by Professor Sherene Razack, �to rescue the imperiled Muslim woman.�
Sadly, many Muslims are also quick to speak out against this woman�s right to
practise her religion as she believes it should be. Understandably, they are
worried about the potential backlash from mainstream society.
these people miss the point though, and there is a need to think through the
issue in a more holistic manner. The question of the niqab in court must
be tackled without resorting to fear and reductionism.
the religious rights perspective, the law is clear and logically consistent
with the core values of liberal democracy. In Syndicat
Northcrest v. Amselem, a case that tackled the definition of freedom of religion under the Quebec Charter
of Human Rights and Freedoms and Section 2 of
the Canadian Charter of Rights and Freedoms, the majority accepted a definition that
included any practice the individual sincerely feels is connected to religion,
regardless of whether the practice is required, sanctioned or mandated by a
religious authority. In other words, a person who claims rights to freedom of
religion does not need to demonstrate that they were denied rights to worship
in accordance with the manner required by a religious authority. Building on prior
case law, the court held that it was enough to demonstrate an individual�s
religious belief and that the practice was connected to this belief -- though
practices sanctioned or required by religious authorities are also protected.
reasoning was consistent with the desire to ensure that secular governments and
courts should not be placed in the position to determine which religious
practices are authentic or not.
determine whether an individual belief is sincere, the court followed the
American lead in advocating for a minimally intrusive evaluation of an
individual�s beliefs. Courts must only determine that religious claims are made
in good faith and not feigned. The majority also held that courts should
tolerate changes in beliefs; the individual�s beliefs held in the past or from
time to time are not relevant to those claimed in the present.
religious rights perspective, the woman has a clear right to testify with her
niqab. The judge seems to have discounted the significance of her belief
because she was not unequivocal in stating how much she believed in it. Surely
she cannot be expected to communicate the technical legal standard she needs to
meet, particularly given that English may not be her mother tongue. Clearly, as
the record and context show, she had a genuine belief in it even though she may
not have used accurate language to convey her conviction.
what some have argued, exposing her face for her driver�s licence photograph in
the past does not void her right to insist on it in the present, as the Supreme
Court clearly articulated. Moreover, this cannot be equated to open and public
testimony in the presence of numerous men and the added stress of courtroom
groups and individuals -- well-intentioned but misguided and trying to champion
a better public relations image for Islam and Muslims -- clamouring to distance
themselves from the issue must understand that religion is something personal.
In line with the Supreme Court decision, it must be defended on a personal
level. They must ask whether they really want to start allowing external forces
and/or even others from within to dictate what of one�s religion is mandatory
and what is not.
Today it is
her niqab, tomorrow it will be
her hijab, next it will be his
beard and eventually it will be your right to educate your children in
religious schools, which are teaching �hate� and �un-Canadian� values if you
believe some of the anti-Muslim and anti-religion rhetoric that passes for
debate and informed comment on Muslims and Islam.
is not as far-fetched as some may think, if you recall some of the rhetoric and
hysteria during the Ontario provincial election when the Conservatives were
effectively defeated over the private school funding idea, partly because of
the spectre of Islamic schools receiving tax dollars.
obvious glee of some, Many Muslims have been rightfully and vociferously
representing that they are taught to respect and obey the laws of the land. But
it is disingenuous to then not extend the benefits of the law when it is
uncomfortable; does not accord with the exact image of Islam and Muslims one
wants conveyed in public; or is not consistent with a paternalistic imposition
on Islam and Muslims. Indeed, many Muslims have not forgotten the �banning� of
faith-based arbitration by the McGuinty government when a small group of
Muslims publicly tried to use the Arbitration
Act or even the review
of section 13 of
the Canadian Human Rights Act when four Muslim law students filed complaints against Maclean�s for
lawyer in the case in which the woman is a witness has argued that allowing the
woman to testify with the niqab will prejudice the ability to assess her
credibility. He argued that it was of �critical importance� to be able to see
her face. The lawyer is obviously doing his job, but society and the justice
system needs to look deeper, beyond legal strategy.
assessing credibility through demeanour evidence is not something solely
assessed from someone�s face. Those present in court will still hear her voice
(including the inflections, tone, pauses, etc.); the content of her testimony
(conviction, nuances, consistency, hesitations, etc.); and see her eyes and
body language. Moreover, the judge can question her and the defence also has
the right to cross-examine her, with the latter being the most effective and
reliable tool to assess credibility.
contrary to conventional wisdom, scholarly and judicial decisions have also
questioned the efficacy of assessing credibility using demeanour evidence. There
are numerous studies and reports challenging the reliability of demeanour
evidence in assessing credibility, particularly when it comes to cultural,
linguistic, racial and religious minorities.
In a widely
cited piece on demeanour published in the Cornell Law Review, Professor Olin
Guy Wellborn III writes, �On the contrary, there is some evidence that the
observation of demeanor diminishes rather than enhances the accuracy of
argues that the ability to accurately detect lying diminishes with observation
of the face.
Jeremy Blumenthal in another legal journal article on demeanour concludes that
� . . . it is unforgivable that the legal system deliberately ignores
demonstrated, relevant findings about demeanor evidence and willfully adheres
to an ineffectual traditional approach.�
it is imperative for the judicial system to explore ways in which the
procedural fairness of the accused can be respected while respecting religious
rights and striving to remove cultural/religious barriers to access to justice.
When such issues are merely brought up as technical legal arguments without
substantiation, the system must not uncritically accept them, particularly when
they clash with complex and conflicting rights and public policy imperatives.
this case raises serious public policy concerns beyond those already touched
upon. Even if technical Islamic and legal rules can be used to deny her the
right to testify with her face covered, the decision sets a dangerous precedent
in terms of access to justice and possibly discouraging women in such
situations from coming forward. As ably argued by the woman�s lawyer, courtroom
testimony is extremely difficult and often traumatic for the average person.
Now throw in the compounded hardships for sexual assault victims and the
additional cultural and religious hurdles and many women may not come forward
to report such assaults.
relative of the woman told the press, �This is primarily an issue of protection
the court offers to victims of sexual assault, especially those from minority
communities, who experience the added stigma of bringing these deeply personal
issues into open court.�
As the Law
Reform Commission of New Zealand concluded in its 1997 report titled Evidence Law: Character and
�To misinterpret the demeanour of a witness is always a danger, but it is a
particular danger when the fact-finder is confronted with a witness belonging
to a different culture . . .�
time the niqab will be a catalyst to start to question the reliability of using
demeanour to assess credibility in a multicultural context. Let�s not nip it in
the bud, but rather step back and analyze these issues without resort to
An abridged version
of this piece was published in the Toronto
Faisal Kutty is general counsel for the Canadian Muslim Civil Liberties Association
and an adjunct professor at Osgoode
Hall Law School of York University.