Witness may be required to remove niqab while testifying: top court

[Goober]

Did the SCoC make the right decision.
I would say no- The Niqab is cultural and not Religious based.

Witness may be required to remove niqab while testifying: top court - The Globe and Mail


A Muslim witness may be required to remove her niqab veil to testify in court depending on the seriousness of the case and the sincerity of her religious beliefs, the Supreme Court of Canada ruled Thursday.

The decision means that a Toronto sexual assault trial that was halted during the preliminary inquiry stage will resume, now that the trial judge has instructions on how to assess the complainant’s request to testify from behind her veil.

In its 4-3 decision, the court said there are times when even a significant religious belief must bow to other social and legal concerns.

“An extreme approach that would always require the witness to remove her niqab while testifying, or one that would never do so, is untenable,” Chief Justice Beverley McLachlin said, writing on behalf of several of the judges in the majority.

“The answer lies in a just and proportionate balance between freedom of religion and trial fairness, based on the particular case before the court,” she said. “A witness who for sincere religious reasons wishes to wear the niqab while testifying in a criminal proceeding 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 niqab outweigh the deleterious effects of doing so.”

The chief justice said that permitting a witness to conceal her face behind a niqab in all cases would rob accused people of the right to a fair trial. It could also harm public confidence in the justice system, she said.

 

[skookumchuck]

Do we need lots more liberal judges? Send them home to fight with their idiot friends.

 

[Cliffy]

The chief justice said that permitting a witness to conceal her face behind a niqab in all cases would rob accused people of the right to a fair trial. It could also harm public confidence in the justice system, she said.

From what I have seen, there is very little confidence in the justice system. Justice system seems like an oxymoron.

 

[damngrumpy]

It should be pointed out this dress code is not part of the religion it is custom
and as such it is optional and in the eyes of the court that would be the right
decision, if its custom its subject to discretion.
If you are in Canada you should be expected to obey the law like everyone
else. Churches and religions should not have any exemptions anyway.

 

[#juan]

Isn't there a law in Canada saying that the prisoner has a right to face his/her accuser?

 

[taxslave]

I would havee to say that the supremes made the right decision here. Two reasons. First, although it may be cultural it is not our culture. Second if they are covered how does anyone know who is really under that tent?

 

[Ron in Regina]

I would havee to say that the supremes made the right decision here. Two reasons. First, although it may be cultural it is not our culture. Second if they are covered how does anyone know who is really under that tent?

Who is "our" above? Yeah, I know...but it's a valid question. The face
of things are a changing....

 

[Goober]

My opinion- The SCoC did not make a fair or clear ruling
Comment: More questions than answers in Supreme Court

Canada’s Supreme Court Justices seem to be as divided on the niqab’s place in a courtroom as Canadians at large. Their ruling in the case of N.S., an Ontario woman who wishes to testify in a sexual-assault trial with her face covered, released Thursday, runs nearly the entire gamut of possible opinions.

On the one hand, we have freedom of religion. On the other, we have the right to a fair trial.

It is enshrined in common law that the accused has a right to face his accuser, and accepted that facial cues are key to assessing a witness’s credibility. How to strike the proper balance?

Justices Louis LeBel and Marshall Rothstein argue for “a clear rule that niqabs may not be worn.” Justice Rosalie Abella argues that niqabs should almost always be permitted. And the majority comes up the middle. “A judge should order it removed if the witness wearing the niqab poses a serious risk to trial fairness, there is no way to accommodate both rights, and the salutary effects of requiring the witness to remove the niqab outweigh the deleterious effects of doing so,” Chief Justice Beverley McLachlin writes.

The court’s guidance for determining these factors is somewhat clearer than mud. But while it often sounds conciliatory, it is in fact much closer to the restrictive opinion.

For the sake of argument, let’s assume a court determines there is no way to reconcile the witness’s right not to show her face with the accused’s right to see it. (It is certainly rather difficult to conceive of one.) That leaves two key questions: Would allowing her to testify while veiled pose “a serious risk to trial fairness”? And would the positive effects of infringing upon her freedom of religion outweigh the negative?
Related

When it comes to the accuser in a criminal trial, at least, the majority seems perfectly clear that an uncovered face is necessary. “Whether being unable to see the witness’s face threatens trial fairness in any particular case will depend on the evidence that the witness is to provide,” Chief Justice McLachlin writes. She suggests that “where evidence is uncontested, credibility assessment and cross-examination are not in issue,” and therefore a niqab might be irrelevant. But that clearly wouldn’t apply to the star witness in a criminal trial.

Lest there be any doubt, she adds: “Where the liberty of the accused is at stake, the witness’s evidence central and her credibility vital, the possibility of a wrongful conviction must weigh heavily in the balance.”

It will be very interesting to see how N.S.’s lawyer tries to finagle his client under this bar. She alleges sexual assault at the hands of two men. She is the case.

The general principle that fair trials must come before accommodating religious belief — accommodating anything, surely — is perfectly sound. It says here one false conviction is worse than 500 guilty men gone free. But we are left with perplexing questions. Justices LeBel and Rothstein offer a compelling critique of allowing apparently uncontentious testimony from niqab-wearing women: In many trials, “what looked unchallengeable one day might appear slightly dicey a week later.”

 

[shadowshiv]

I chose no, but I feel that there shouldn't be any exceptions. That being said, I am glad that they at least didn't say that they could wear them in all cases.

 

[Dexter Sinister]

I don't think it's a clear or fair ruling. Or correct either. One of the keystones of the rule of law is that you be allowed to confront your accusers, they don't get to hide behind a mask. Frankly I don't care whether the veil is just a cultural custom or a religious requirement either, you want to testify in a Canadian court, you let people see who you are, no exceptions.

 

[Dixie Cup]

Did the SCoC make the right decision.
I would say no- The Niqab is cultural and not Religious based.

Witness may be required to remove niqab while testifying: top court - The Globe and Mail


A Muslim witness may be required to remove her niqab veil to testify in court depending on the seriousness of the case and the sincerity of her religious beliefs, the Supreme Court of Canada ruled Thursday.

The decision means that a Toronto sexual assault trial that was halted during the preliminary inquiry stage will resume, now that the trial judge has instructions on how to assess the complainant’s request to testify from behind her veil.

In its 4-3 decision, the court said there are times when even a significant religious belief must bow to other social and legal concerns.

“An extreme approach that would always require the witness to remove her niqab while testifying, or one that would never do so, is untenable,” Chief Justice Beverley McLachlin said, writing on behalf of several of the judges in the majority.

“The answer lies in a just and proportionate balance between freedom of religion and trial fairness, based on the particular case before the court,” she said. “A witness who for sincere religious reasons wishes to wear the niqab while testifying in a criminal proceeding 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 niqab outweigh the deleterious effects of doing so.”

The chief justice said that permitting a witness to conceal her face behind a niqab in all cases would rob accused people of the right to a fair trial. It could also harm public confidence in the justice system, she said.

That's what I find so frustrating - insisting that it's a religious requirement. It simply is not - its cultural. We're catering again to people who want to change who we are. This is simply unacceptable. I'm furious about this decision. How can supposidly educated individuals not understand the difference between religious and cultural. Did they actually do any homework? Unbelievable!

JMHO

I would havee to say that the supremes made the right decision here. Two reasons. First, although it may be cultural it is not our culture. Second if they are covered how does anyone know who is really under that tent?

I disagree. These individuals are saying its a religious requirement when it's not. And, secondly, since when does "culture" override the right to face your accusers? It doesn't make sense.

JMO

i would havee to say that the supremes made the right decision here. Two reasons. First, although it may be cultural it is not our culture.

Second if they are covered how does anyone know who is really under that tent?

exactly!!!

That's what I find so frustrating - insisting that it's a religious requirement. It simply is not - its cultural. We're catering again to people who want to change who we are. This is simply unacceptable. I'm furious about this decision. How can supposidly educated individuals not understand the difference between religious and cultural. Did they actually do any homework? Unbelievable!

JMHO




I disagree. These individuals are saying its a religious requirement when it's not. And, secondly, since when does "culture" override the right to face your accusers? It doesn't make sense

 

[dumpthemonarchy]

Isn't there a law in Canada saying that the prisoner has a right to face his/her accuser?

Something like an open court, justice for all. Our SCOC seems lost on the issue. Hidden fans of sharia law perhaps. And the judgement gives more discretion to judges, typical. Wrecking our law and democracy.

 

[Ron in Regina]

I chose no, but I feel that there shouldn't be any exceptions. That being said, I am glad that they at least didn't say that they could wear them in all cases.

I don't think it's a clear or fair ruling. Or correct either. One of the keystones of the rule of law is that you be allowed to confront your accusers, they don't get to hide behind a mask. Frankly I don't care whether the veil is just a cultural custom or a religious requirement either, you want to testify in a Canadian court, you let people see who you are, no exceptions.

I, too, have an issue with this. More than words are conveyed by a witness in court
to the Judge & Jury & Prosecution & Defense via facial expressions, etc...and though
the door is still open (sort of...), it does move things further away from an even playing
field in a 'Justice for All' concept and could change the outcome of a trial when/if a smirk
is missed...or something along those lines that would otherwise be visible...due to this
decision. I can envision someone from the snowmobiling culture challenging this at a
future date, as the boundary between culture & religion has been blurred.

 

[petros]

Would they make the Batman take off his mask?