Thursday, December 20, 2012

Wearing a Niqab

As a child I remember a class of women who always covered their hair, were deeply devout and whose dress and deportment set them apart from the rest of society.


Despite their unusual dress and their life of devotion they participated fully in Canadian life - indeed, some of them were my teachers as a child and they deal with the broader culture on a daily basis.

While the number of nuns in Canada has dramatically fallen since I was a child there is no question that they are fully accepted as part of Canadian society. It is inconceivable that anyone would consider a nun less worthy of belief because of her habit.

Yet only a few generations nuns in Ontario faced widespread hostility and were defamed in popular accounts as being depraved, untrustworthy and of loose morals. I have family who recall actual anti-Catholic rioting as late as the 1930s.

Times change.

Today there is a class of women who cover their hair and face are deeply devout and whose dress and deportment set them apart from the rest of society. The class too faces significant hostility and is often defamed although usually in different terms than the nuns of the early Twentieth Century.

These women are devout Muslims who wear various different items the commonality of which is that their hair and often their face is covered.

In general such clothing choices have no legal ramifications. However, when a woman wearing, for example, a niqab is to testify in Court must she remove the niqab and show her full face?

Broadly put, the debate over religious garb is over and decided. Turbans and other headgear are allowed in Court without question. Indeed, most Courthouses in Canada have a "decorum" sign somewhere in the lobby explaining that religious headgear need not be removed.

But covering the face is different. The Common Law has a long history holding an accuse must be allowed to look their accuser squarely in the face. How does that history square with a sincere wearing of a niqab? This is especially so as women wearing facial covering for religious reasons are often subject to prejudice any order requiring them to bare their face must take into account a genuine need and not mere bias or societal inclination.

The Supreme Court considered the issue this week and decided that a simple answer requiring the baring of the face or not is not sufficient.

Women wearing facial covering for religious reasons are entitled to protection for they are exercising their constitutionally protected freedom of religion. But persons accused of crimes are entitled also to a fair trial and sometimes that right trumps freedom of religion. A balance is needed.

Writing for the majority the Chief Justice of Canada held the need to accommodate and balance sincerely held religious beliefs against other interests is requires someone to remove religious garb only where necessary. If evidence is contentious and there is a real reason to watch the witness's reaction to questions then removal is proper and necessary. Someone, for example, charged with a serious criminal offence is entitled to full protection of the law and to challenge fully a witness. Accordingly, a witness who for sincere religious reasons wishes to wear the a facial covering while testifying will be required to remove it if (a) this is necessary to prevent a serious risk to the fairness of the trial, because reasonably available alternative measures will not prevent the risk; and (b) the salutary effects of requiring her to remove the facial covering outweigh the deleterious effects of doing so.

In effect, there must be a balancing and accommodation. The right to practice religion freely must not lead to wrongful convictions. But, at the same time, sincerely held religious belief must not be ignored.

Eventually women who wear the niqab will be seen as integral to Canadian society as nuns. They will face no prejudice and need no special protection - they will be witnesses in Court like all others and express protection for them will no longer be required. Until then they are protected by the balancing required by the Supreme Court.


The Rat said...

The nun story is false analogy. In order to be a nun a woman had to choose to be a nun, had to choose an order that required the habit and she was able to leave and give up the habit at any time. A woman wearing a niqab or a burka or any of the other coverings for Muslim women may be choosing it or she may be forced to wear it by her male family members. She has not voluntarily joined an order, she was born into it and was likely never given a choice. Should she decide not to wear it anymore could be at risk for domestic violence.

The fact there were anti-Catholic riots only points out how accepting Canadians have become towards others. There have been no anti-Muslim riots. Yet it would appear that criticism of cultural practices masquerading as religious requirements is now equivalent to a a 1930s riot.

None of that has anything to do with the case. Can the defendants get a fair trial if the accuser wears a face covering? It seems the Supreme Court has said maybe. Fair enough.

Rotterdam said...

I agree with "the rat" regarding James linking nuns into the equation. With all due respect James, it falls apart.

I have had a personal experience with this issue. Two years ago I delivered delayed baggage from the airport. The bag had to be delivered at night because the man of the house did not want his wife to have any contact with me during the day. When I delivered the bag, I saw the wife wearing a niqab in the background. This Saudi value in Canada, how sad.
We live in a Western culture, if you wish to live in our culture you ought to embrace our values, among them, to be able to see each others face in public.
I would move to ban the Niqab, and Burka in Canada. I would send a strong message that Canada will not tolerate a forced medieval value.

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