More than five years and many court battles later, a sexual assault preliminary inquiry is poised to resume with the complainant complying with a court order to remove her niqab while testifying.
The landmark case pitting religious rights against fair-trial rights went all the way to the Supreme Court of Canada which ruled the matter can only be decided on a case-by-case basis.
With the decision back in his hands, Ontario Court Justice Norris Weisman, the original presiding judge, followed the test laid out by the top court and ruled that the complainant must remove the veil, which covers all of her face but her eyes, to testify.
The Toronto woman, who can only be identified as N.S., is the case’s key witness. She alleges that two men, whose identities are also covered by the publication ban, sexually assaulted her for five years in the mid-1980s when she was a child.
Weisman acknowledged the difficulty posed to N.S. by his decision in April, and the broader implications it could have on victims with similar religious beliefs in reporting crimes and having confidence in the justice system.
However, he also wrote that seeing the face of a key witness is “an important feature of a fair trial” with serious consequences for the accused.
Weisman has since reached the age of mandatory retirement for judges. The case is now in the hands of Justice Charles Vaillancourt.
In November, Vaillancourt ruled on a request by N.S. to avoid seeing or making eye contact with “anyone save and except the judge, Crown counsel and court staff.”
He allowed the accommodation, but added the accused to the list, since he found the accused could not be denied their right to face their accuser.
On Monday, a courtroom was organized with a separate viewing room for the public with a camera feed that would only show the back of the woman’s head.
However, the proceedings were delayed until Tuesday morning following a family emergency for one of the defence lawyers in the morning and, later, by the complainant suffering from a migraine aggravated by the lights in the courtroom.
N.S.'s lawyer, David Butt, told the Star Monday that as a result of this case and the Supreme Court ruling, the courts are slowly becoming more inclusive and more responsive to the needs of the country’s diverse community.
Even so, he said, “it’s very difficult to be put in my client’s position between access to justice and religious belief.”
Her battle to wear her niqab on the stand may not yet be over, he added — the issue may be raised again, should the matter finally proceed to trial.