Credits: JIM WELLS/ QMI Agency
There are likely to be a lot a Canadians concerned about the Supreme Court’s decision on Thursday to permit Muslim women to cover their faces with a niqab when testifying in court.
They will see it as more evidence of the creeping Muslimization of our culture and worry that it is a precursor to the adoption of Shariah law in Canada.
It is no such thing. The court’s ruling, written by Chief Justice Beverley McLachlin, is instead a sensible, practical, old-fashioned Canadian compromise between religious freedom and the right to a fair trial.
In short, the court ruled it should be acceptable to “allow a witness to testify with her face covered unless this unjustifiably impinges on the accused’s fair trial rights.” If there is no threat to justice, why not respect religious beliefs, even those we disagree with?
The chief justice was quick to add, “if the liberty of the accused is at stake, the witness’s evidence is central to the case and her credibility vital, the possibility of a wrongful conviction must weigh heavily in the balance, favouring the removal of the niqab.”
Where there is a risk that an innocent person will be sent to prison because a witness is wearing a niqab, off it should come.
“The answer lies in a just and proportionate balance between freedom of religion and trial fairness.”
The decision arose out an Ontario case in which a Muslim woman accused her uncle and cousin of sexually assaulting her when she was a child. During the preliminary inquiry, the alleged victim, N.S. (whose name has been withheld by a publication ban) asked to testify with her face covered based on her Muslim beliefs. The trial judge declined, siding with the defendants who claimed they had a right to face their accuser and to gauge her sincerity by seeing her facial expressions.
The trial judge agreed, but also added that he denied N.S.’s request because her religious beliefs were “not that strong.”
This latter argument — the judge’s perception that N.S.’s beliefs were insufficiently sincere — would have been a dangerous precedent.
Who are the courts to decide whether any of us hold our beliefs sufficiently strongly to warrant charter protection of our religious freedom? We believe what we claim to believe. If a judge thinks we are lying, he or she is free to throw out our claims.
But do we truly want courts getting into the business of administering faith tests?
And how would a judge decide? Make us recite passages from our faith’s holy books? Submit attendance records signed by a pastor, rabbi or imam? And what about people who are profoundly spiritual but not especially religious? Unless our religious beliefs and practices get in the way of a court’s ability to determine guilt or innocence, courts should respect and accommodate them.
In my mind, the niqab and what it stands for is offensive to women. I would hope as Muslim Canadians adapt to Western culture, the practice of veiling women will disappear. But that is my opinion only, not something I want the state to impose on other citizens who disagree.
I have concerns about courts certifying the identity of any niqab-wearing witness. Such a witness should have to reveal her face to a court officer who can vouch that she is who she says she is. But that could be satisfied in a back room with the witness allowed to re-veil before entering open court.
Those of us worried that accommodation to devout Muslim practices will weaken the Western precepts of fairness and equality that underpin Canadian culture need not fear this decision.