Canada's Supreme Court heard arguments Thursday about whether a Muslim woman accusing her cousin and uncle of childhood sexual abuse should be allowed to wear a niqab on the witness stand.Joanna Birenbaum, of the WomenÂ’s Legal Education and Action Fund, said the case will have significant repercussions throughout Canada because "if the court requires women who wear the niqab to remove them to testify ... the result will be that niqab-wearing women will not report sexual assaults at all, and the message is that they can be raped with impunity."
N.S. — whose identity is protected — was ordered during a preliminary hearing in Ontario court to remove her niqab, a Muslim head and face covering which leaves only a slit for her eyes. She refused and, after working its way through the Ontario court system, her case is now made it to the country’s top court.
Lawyers for the accused argue that, if N.S. is permitted to testify with her face covered, the judge will not be able to determine the truth of her testimony.
However, David Butt, the womanÂ’s lawyer, said the benefits of including Muslims who wear a niqab, outweigh the negative aspects, which he says are fairly minor.
“There are certain institutions in our society where it’s really important that they take people just as they are — one of those is hospitals, another one is courts. And, unless it’s going to seriously interfere with the functioning of the court, we should say, if that’s your sincere belief, we’re not going to stand in your way.”
Butt said if the court rules that N.S. must remove her niqab to testify, "it will put her in an impossible situation. She will have to choose between violating her religion or not seeking redress as a sexual assault complainant."
But, Tyler Hodgson from the Muslim Canadian Congress, said "the niqab, as an institution, undermines gender equality and full participation in a democratic society and the court ought to at least consider that when balancing these conflicting rights."
"The right to full answer in defence ultimately trumps" N.S.’s desire to keep her face covered, said Hodgson, because her motivations for wearing the niqab are unclear — it could be religious, but it also could be for cultural or familial reasons — neither of which is protected by the Canadian Charter of Rights and Freedoms.
A judge in a lower Ontario court suggested a "sincerity test" for N.S. to prove that her faith is genuine.
Birenbaum said, "The sincerity test is really more aimed at exploring more marginalized religious practices, which the court many not be familiar with. But, the wearing of the niqab is connected with one of the world’s major religions and, in our view, the sincerity should be presumed — particularly given how incredibly hard it is to wear the niqab in contemporary Canadian society."
Butt said he was disheartened by what he called the "intolerant, racist and ignorant" comments after most online news stories he has read about the subject. He said, "ThatÂ’s exactly when you need courts to step in and protect minority rights when thereÂ’s a popular sentiment against them."