Woman ordered to testify with bare face

February 02, 2009
Betsy Powell
Toronto Star

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 her "religious belief is not that strong ... and that it is, as she says, a matter of comfort," he wrote in his ruling.

Lawyer David Butt is representing the woman and next month in Superior Court will argue the Oct. 16 ruling should be overturned.

"For complainants in sexual assault cases, courtroom testimony is extremely difficult and often traumatic," he said last week.

"During such times of great anxiety the courts should respect religious rights and practices that bring comfort and sustenance, particularly when they do not undermine the fairness of the proceedings."

When the complainant indicated last fall she wanted to wear her veil while testifying at the preliminary hearing, defence counsel told the judge that assessing her demeanour was of "critical importance" when tailoring questioning.

Weisman asked the woman to explain her objections.

"It's a respect issue, one of modesty and one of ... in Islam, we call honour," she replied. "It's also about the religious reason is to not show your face to men that you are able to marry. ... I would feel a lot more comfortable if I didn't have to, you know, reveal my face."

Butt, who was granted standing at the hearing last fall, argued the judge must consider the Charter which protects religious freedom when making his decision. Butt argued the accused can hear her voice and inflection, see the expression in her eyes and body language.

In his judgment, Weisman wrote "at the 11th hour we learned ... she has a driver's licence with her unveiled facial impression upon it."

Thanks to a publication ban and the nature of the charges, the names of the complainant and the two accused cannot be published.

Debate about Muslim women and head coverings has surfaced in recent years over girls wearing the hijab to play sports.

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