Straight Talk
PETER WORTHINGTON - Supreme Court ruling on niqab smacked of cowardice

Credits: REUTERS

PETER WORTHINGTON | QMI AGENCY

TORONTO - Depending on one's viewpoint, the Supreme Court's decision on veiled women testifying in court was a wise compromise - or something of a disaster.

It wasn't quite a cop-out, but it smacked of cowardice.

Sending the issue of whether face covering should be acceptable in Canadian courts back to the discretion of trial judges hearing cases seems a sorry decision by the Supremes.

Two of the nine Supremes - Justices Louis LeBel and Marshall Rothstein - got it right when they opined that the niqab violates the principle of fair and open trials, where witnesses' faces are in the open and not hidden behind veils.

Four others, led by Chief Justice Beverley McLachlin, felt that the religious "sincerity" of the niqab wearer should be taken into account by the trial judge hearing the case, and he can decide if the veil should be worn.

Good Lord!

What on earth does "religion" or "sincerity" have to do with "justice?"

The niqab - or veil, or burka - has nothing to do with religion. It is a cultural adaptation at best, a cultural affectation at worst.

Common sense dictates that a witness or central figure in a court case should not be masked, or invisible to the court.

The four justices who agreed with McLachlin seem concerned about being liberal-minded, or tolerant of differences, and bending to accommodate what they think will make people feel comfortable.

Other aspects that concerned them were whether wearing the niqab would jeopardize a fair trial - if not, don't bother; also, it's a way to show tolerance and accommodate minority culture; and if wearing a veil was irrelevant to the case in question.

One can understand the feeling, because most of us in different ways try to make people who come here from different cultures feel comfortable. We've adjusted a lot of our traditions to include the traditions of other countries and cultures.

But our courts are something that we should be wary about changing.

The one Supreme dissenting from colleagues in the wearing of the niqab was Justice Rosalie Abella (why is that not a surprise?). She felt the face-covering should be acceptable in court, because if a woman was testifying in a sexual abuse case, she might not want her face to be revealed, and therefore the crime would go unpunished.

That seems weak reasoning.

The "religious sincerity" aspects of McLachlin's reasoning makes one wonder at her thinking. If, say, someone worships the devil in some bizarre way, but with great sincerity, would that justify or mitigate obscenities that might be committed while "sincerely" practicing religious convictions? Or witchcraft rites?

Of course not.

So why should a person who "sincerely" believes her face should not be seen be granted special privileges in court, where freedom or incarceration are often in the balance?

What the Supreme Court seems to have done by throwing the issue back at trial judges is to guarantee that there will be more appeals filed by losing lawyers, and more delays to the implementation of "justice."

That's where both cop-out and cowardice come into play. If "cowardice" is too strong a word, then excessive discretion, or timidity, or fear of offending, or over-tolerance might suffice.

In any case, the decision means more controversy ahead.

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