May 6, 2013 | National Post

The Right to a Fair Trial Trumps the Right to the Niqab

If human beings were truth-telling robots, we would not be discussing the issue of whether a niqab-covered Muslim woman should be permitted to testify in Canadian court: The very spectacle of courtroom testimony would be unnecessary, since judges and juries could simply rely on pre-written testimonials and affidavits.

But of course, humans often lie. And the age-old mechanism we rely on to sniff out lies is scrutiny of the senses: Do the eyes shift or tear? Do the hands fidget? Does the brow sweat? Does the mouth mumble? Does the face flush? That is why witnesses appear in open court: so judge and jury can observe them, and assess their credibility, as exposed under zealous cross-examination, to the extent that the five senses permit. It’s an imperfect system. But it’s the best we non-robots have got.

On the other side of Lady Justice’s balance is our compelling, collectively felt need to investigate and prosecute sex crimes — a project that is impossible if victims of those crimes are so alienated by the criminal-justice system that they refuse to step forward. That is why Canada has a rape-shield law, which restricts the ability of defense counsel to dwell on an alleged sex-assault victim’s potentially humiliating past sexual conduct.

In the 2000 case of R. v. Darrach, the Supreme Court unanimously upheld the constitutionality of Canada’s rape-shield law. But the question of face veiling in court has proven more contentious: When the Court ruled on it in 2012, the competing judgments produced a stalemate that essentially left the issue for lower courts to decide on a case-by-case basis.

In retrospect, Justices Marshall Rothstein and Louis LeBel clearly had the better argument when they declared — in their Darrach dissent — that wearing the niqab in this context is not only “incompatible with the rights of the accused [and] the nature of the Canadian public adversarial trials,” it also conflicts with “religious neutrality.”

This last bit was, and remains, a critical point: While rape-shield laws serve to protect all alleged rape victims, the same isn’t true of a niqab-based carve-out from the general rules that govern testimony in open court. Any such carve-out would benefit just one small group of people: those who claim that some abstract cultural or religious belief requires them to hide their faces in public.

For purposes of this discussion, we do not even have to consider the perfectly obvious points that (1) We have no idea whether any person’s religious conviction is genuine; (2) The infatuation with head-to-toe female covering that has become popular in some Western Muslim sub-cultures is a modern artifice with little or no basis in traditional Islam; and (3) the very idea of full face-covering is something that the vast majority of Canadians find (and always will find) alienating, sexist and — there is no other word for it — creepy. The idea that we would lower the admissibility bar for certain kinds of witnesses (and, in so doing, lower the evidentiary threshold against certain kinds of accused sex criminals) on the basis of nothing more than self-imposed religious eccentricity (even many Muslims describe the niqab requirement this way) is fundamentally objectionable. And it is a pity that the entire Supreme Court of Canada did not see fit to say so in 2012.

Fortunately, at least one lower-court judge has a clear sense of right and wrong on this issue — even if his robed superiors in Ottawa are deadlocked.

In an opinion released this week, Ontario Court Justice Norris Weisman rejected a 37-year-old Muslim woman’s demand that she be permitted to wear a niqab while testifying in regard to two men who allegedly raped her when she was a child. As the Judge properly noted, at least one of the two defendants risks being sent to jail for the rest of his life if he is convicted of this repellent crime. Given the high stakes, it would be wrong to compromise the man’s right to a fair trial based on the alleged victim’s extraordinarily restrictive definition of female sexual propriety.

As Judge Weisman properly concluded, there is something important at stake in this case. “On a broader societal level, should the niqab impede effective cross-examination of the complainant by the accused’s counsel, they will not be able to assess the witness’s demeanour and tailor the thrust and direction of their questions accordingly,” he declared. “Wrongful convictions could ensue, with resulting loss of public confidence in the justice system.”

Well-stated, and just so. As for the complainant in this case, we can only hope that she has the conviction to proceed with the case without her niqab. It would be an odd interpretation of God’s will to insist that a rapist go free so that a woman might remain a stranger to those seeking to bring her justice.