Court hears arguments again for ‘obligatory’ face veil at sex assault trial

Musilm woman says her niqab is “obligatory” even in court, but the defence says her credibility must be judged.

A Muslim woman who alleges she was sexually assaulted by two men returned to the witness stand Monday and told a judge how she’ll feel if she’s forced to remove her niqab while testifying in court.

“I don’t even know where to start with that . . . (An) overwhelming influx of negative emotions guaranteed,” said N.S., who testified wearing a black niqab, which covered her entire face except her eyes.

It’s been six years since N.S. — known in court by her initials — first appeared in front of the same judge, Ontario Court Justice Norris Weisman, who ruled she should be required to testify with her face bare after finding her “religious belief is not that strong.”

Weisman’s 2008 decision was appealed to two higher courts before landing in the Supreme Court, which sent the case back to him last December.

The complainant, now 37, alleges she was sexually abused as a child by an uncle and another man.

On Monday, at the preliminary hearing to determine if there’s enough evidence to commit the men to trial, lawyers revisited the veil issue during a voir dire. The Supreme Court said a judge’s decision on whether to allow the face-covering must be made on a case-by-case basis. The court said judges should consider four questions before making a decision, including whether permitting a witness to wear a niqab would create a serious risk to trial fairness.

Responding to questions from her lawyer, David Butt, N.S. told court she began wearing the niqab about a decade ago and does so in public when non-family males are present “basically to cut off creating a sexual environment.”

She testified she removed it to pose for her driver’s licence photo — because a woman took her picture — and doesn’t wear it when driving, which is her profession. In a traffic jam, she will pull the veil down to avoid the possibility of being seen by a man, she told court.

Defence lawyers Douglas Usher and Enzo Battigaglia questioned the strength of N.S.'s religious convictions because she chose to affirm to tell the truth rather than swearing on the Qur’an.

Battigaglia said during her evidence Monday that religious freedom appeared to take a “backseat to concern over the psychological impact” faced by all women who come to court alleging sexual assault.

It is essential that a jury be able to see her face when she testifies in order to assess her credibility, Battigaglia added. “She is the case for the Crown,” he said, noting there is no other evidence corroborating her allegations.

Outside court, Usher said courts should be promoting secularist and rational values. “I don’t think we should accommodate things which are nonsense.”

Usher said he agrees with popular atheist author Richard Dawkins who says we don’t have to respect peoples’ religion.

“It’s time that we started challenging beliefs that are in contradiction to our secular beliefs, which I think we should be supporting in our court system.”

The voir dire continues Tuesday.

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