Toronto woman must remove niqab to testify in sex-assault case, judge rules
By Michele Mandel ,Toronto Sun First posted: Wednesday, April 24, 2013 11:53 AM EDT | Updated: Wednesday, April 24, 2013 12:10 PM EDT
TORONTO - In a first ruling since the Supreme Court decision last year, the sexual complainant known as N.S. has been ordered to remove her niqab when she testifies in a preliminary hearing.
Justice Norris Weisman released his decision Wednesday morning.
She had fought all the way to Canada's highest court seeking to keep her face covered while she faced the two relatives she's accused of historical sexual assault. The Supreme Court ruled that each judge must decide on a case-by-case basis.
The preliminary hearing is set to resume April 29.
In 2007, she came forward and accused two relatives of sexually abusing her as a child. When the case went to the preliminary hearing in 2008, she asked to wear her niqab while testifying.
"The religious reason is not to show your face to men that you are able to marry," she explained at the time. "It's to conceal the beauty of a woman and, you know, we are in a courtroom full of men... I would feel a lot more comfortable if I didn't have to, you know, reveal my face."
The judge ruled she had to remove it because she hadn't demonstrated a strong enough religious conviction, and had already taken it off for her driver's licence photo.
She took her case to the Ontario Court of Appeal. In 2010, the three judges would neither endorse or prohibit the use of face veils by Muslim witnesses but said "each case must turn on its own facts."
As long as it doesn't prejudice a fair trial, the court ruled, Muslim women should have the religious right to wear their niqab when testifying. But if a judge is convinced by the accused that he can't properly defend himself if she's testifying against him behind a veil, the witness must remove her niqab and allow the face-to-face confrontation that is the norm in Canadian courts.
For N.S., the appeal court overturned the ban on her wearing a niqab and sent the issue back to the preliminary inquiry judge for a proper hearing: she was to demonstrate the sincerity of her religious belief and the defence was to present their own evidence. The judge was then to decide if she could wear the niqab or whether accommodations could be made for her testimony -- such as an all-female court.
Instead, N.S. took her case to the Supreme Court. In December 2012, the top court produced a rare 4-2-1 split decision. The justices ruled that a woman can wear a religious veil across her face while testifying in court -- but only in certain circumstances.
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