Forcing a Muslim woman to remove her veil to testify in court is inconsistent with the long-standing Canadian approach to respect an individual’s religious belief and accommodate it if possible, lawyer David Butt told a judge Tuesday.
Butt, who represents sexual assault complainant N.S., is asking Ontario Court Justice Norris Weisman to reverse his 2008 decision requiring her to testify without the face-covering after he concluded that her religious beliefs were not that strong.
Weisman’s decision was appealed and went all the way to the Supreme Court of Canada. In December, the country’s highest court sent it back to Weisman and told courts to apply a four-part, case-by-case balancing test when religious and trial fairness Charter rights are in play.
Allowing N.S. to testify wearing her veil poses no serious risk to trial fairness because it does not eliminate “demeanour assessment,” Butt said.
“Demeanour flows from many, many things apart from the bottom half of someone’s face,” Butt said.
Factors including body language, voice tone and eye contact are unaffected by a niqab, he said.
But defence lawyer Douglas Usher told Weisman his 2008 ruling should stand and that N.S. should be ordered to remove her veil in the historical sexual assault case.
“Nothing has changed. The position of the complainant is the same,” Usher said in his final arguments.
He said N.S. is balking at testifying without the veil not because of religious conviction but because it is “jarring to be a litigant in the criminal process,” Usher said.
“I don’t doubt she would find it more comfortable to have her niqab,” he said.
The veil issue is being argued at the preliminary hearing stage. The accused are an uncle and another man whom N.S. alleges sexually abused her as a child over several years.