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Canada’s Top Court Rules on Muslim Niqab

Trial judges and tribunals have to look at the sincerity of religious belief

Source : OnIslam & Agencies / 21 Dec 2012

A Muslim woman who wears full face veil may be forced to remove it before testifying before a court, but only if absolutely necessary and after any objections have been considered, Canada’s Supreme Court has decided.

"An extreme approach that would always require the witness to remove her veil while testifying, or one that would never do so, is untenable," the court’s Chief Justice Beverley McLachlin wrote, Ottawa Sun reported.

"The answer lies in a just and proportionate balance between freedom of religion and trial fairness."

The country’s top court pitted religious freedoms set out in the constitution against a defendant's right to face an accuser in court, which is deeply entrenched in Canadian law.

Looking into a case that dates back to 2007, the Supreme Court built on an Ontario Court of Appeal ruling that offered a compromise and laid out a legal test that would help decide whether a veiled woman could testify.

Trial judges and tribunals have to look at the sincerity of religious belief, the risk to trial fairness, whether both rights can be accommodated.

If not, they have to consider broader societal harms including whether it would discourage veiled women from reporting offences and the harm it may cause to the fairness of the accused's trial.

“If the liberty of the accused is at stake, the witness's evidence is central to the case and her credibility vital, the possibility of a wrongful conviction must weigh heavily in the balance, favoring the removal of the niqab," McLachlin wrote.

The case before the higher court dates back to 2007, when NS, whose name is protected by a publication ban, accused her uncle and cousin of sexually assaulting her as a child.

During the preliminary inquiry, she asked to testify with her face covered, based on her Muslim beliefs; a request denied by the judge.

The Supreme Court sent the case back to the lower court to reconsider based on the new set of criteria.

NS, now 34-year-old woman, has yet to testify in the sexual abuse case.

The case will now go back to the preliminary inquiry judge who will weigh all the factors laid out by the highest court and decide whether she can testify with a veil.

The highest court ruling was praised byNathalie Des Rosiers, with the Canadian Civil Liberties Association, as a balanced attempt to reconcile the competing rights.

Muslims make around 1.9 percent of Canada's 32.8 million population, and Islam is the number one non-Christian faith in the Roman Catholic country.

While hijab is an obligatory code of dress for Muslim women, the majority of Muslim scholars agree that a woman is not obliged to wear the face veil, or niqab, but believe that it is up to women to decide whether to cover her face.

In October 2010, a Canadian court said that a Muslim woman was allowed to testify in court while wearing her face veil as long as the fairness of the trial is not compromised.

New rules requiring Muslim women to remove their full face veil or niqab while they take the oath of Canadian citizenship faced harsh criticism since their application last December.


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