R. v. N.S., 2010 ONCA 670, the niqab case, is a generally sensible decision attempting to balance freedom of religion with the right to a fair trial.
But one paragraph suggests a very bad idea:
"[85] Attempts to reconcile competing interests using "constructive compromises" might include the use of an all female court staff and a female judge. Those measures might also include, where constitutionally permissible, an order that a witness be cross-examined by female counsel. ... If necessary, the court could be closed to all male persons other than the accused and his counsel."
Does that mean we would consider an all female jury? Remember in the niqab case the accused was a male charged with assaulting a female -- what happens to perception of fairness when the male accused is faced by an all female court? What about men who, sincerely and religiously, do not agree to mixing with women -- shall we establish all male courts for them?
Freedom of religion is an important right and saying someone must set aside their religion principles to testify must not be done lightly. But accommodating religious sensibility ought not to undermine the basic fairness and perceived fairness of the system -- and deciding to segregate by gender is not a step forward for justice.
3 comments:
James. Women have faced all male courts, juries, lawyers, etc. for centuries. And still often do. There is nothing in law that requires a jury to be made up of 50% of both genders. If, in the cases of the few women in Canada who wear niquab & want to retain it, particularly in an emotionally devastating case like this, the men will just have to face what women experience regularly & deal with it. Sorry, but I have no sympathy for your position, not legally nor logically.
I hear you but I just don't see how single sex juries (either way) are the right response to religious practice. But I do appreciate the comment - cheers
OJ's defense team seeked out woman jurors to win the case. It defies logic as I see it but it worked.
I abhor any kind of jury selection based on perceived prejudices.
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