To allow feudal, archaic and medieval religious laws to trump laws passed in a democracy is perverse.
And it's in Ontario, where most the HRC corruption occurs.
Court rules Muslim woman allowed to wear niqab during rape trial - The Whig Standard - Ontario, CA (external - login to view)
Court rules Muslim woman allowed to wear niqab during rape trial
JUSTICE: Lawyer argued he needs to see witness' entire face during cross-examination
Posted By COLIN PERKEL, THE CANADIAN PRESS
Posted 2 days ago
A Toronto-area Muslim woman who alleges she was sexually assaulted by two men has won a round in her battle to testify in court while wearing a niqab, a veil that covers all of the face except the eyes.
In a highly anticipated ruling addressing what appears to be the first case of its kind in Canada, Ontario Superior Court Justice Frank Marrocco has overturned a decision by provincial court Judge Norris Weisman.
Presiding over a preliminary inquiry for the two defendants, Weisman last year concurred with their position that the woman should be required to testify with her face in full view, and he instructed her to remove her veil.
However, Marrocco's ruling does not necessarily clear the way for the woman, a Canadian born mother in her early 30s, to testify from behind her veil.
Instead, he ordered that the preliminary inquiry, on hold since the issue surfaced, hold two hearings, one to be videotaped to determine whether the woman's testimony would be admissible as court evidence under those circumstances.
He also granted intervener status to the Ontario Human Rights Commission, which backs the contention of the woman and her lawyer David Butt that she should be allowed to give evidence while veiled because the garment stems from a sincere, deeply felt religious conviction that lies at the core of Canada's Charter of Rights and Freedoms.
Pitted against that is the competing principle, articulated last month by Jack Pinkofsky, lawyer for one of the two accused, that open testimony, including a complainant's appearance, is a pillar of a fair criminal justice system and should supersede religious beliefs.
That too is a core charter principle, the preliminary hearing heard.
"Seeing the demeanour of the witness is a matter of critical importance not only at the trial but also at the preliminary inquiry," Pinkofsky told Weisman. "My cross-examination is determined by my assessment of the demeanour of the witness."
As well, the defence noted the woman has an Ontario driver's licence bearing her photograph, unveiled, which led Weisman to conclude that her convictions about baring her face were perhaps not as strong as she made out.
But whether deployed for or against the woman's bid to stay veiled, charter arguments have no place at a preliminary inquiry, Marrocco ruled, alluding to a 1986 Supreme Court of Canada decision.
Weisman, he said, "had no jurisdiction to hear and determine whether a charter right had been infringed."
Butt had hoped his client's right to stay veiled would be resolved by Marrocco's ruling, which it was not.
Butt said yesterday that while he was cautiously pleased with the outcome, the hearings ordered by Marrocco to determine the admissibility of evidence given by a veiled witness have raised fresh questions that may be the basis of an appeal.
"Because of the complicated nature of the two hearings he has proposed, a procedure that would be very new and is something the judge has devised for this case in particular, we'll be looking at whether that should be reviewed by a higher court," Butt said.
Article ID# 1550373