Toronto Court orders sexual assault complainant to remove niqab when testifying

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Toronto Court orders sexual assault complainant to remove niqab when testifying

"A judge has ordered a Toronto woman to testify without her niqab at a sexual assault trial – raising the thorny issue of whether Muslim women should be allowed to appear as witnesses wearing a veil that covers everything but the eyes.

The issue is a collision of two rights, pitting religious freedom against the right of a defendant to face an accuser in open court.

The case could be precedent setting because it doesn't appear there is any Canadian case law addressing the question of Muslim women in the courtroom. In Canada, home to about 580,000 Muslims, the case will be closely watched, amid fears about Muslim women coming forward in criminal cases."

Interesting for a few reasons:

1. The "conflict of rights" question couldn't be any clearer.

2. The question of whether the trier of fact (judge or jury) needs to see someone's face to determine credibility.  This issue has been resolved in cases of children by permitting the child to testify outside of open court; but there are no doubt different issues when we are talking about competent adults.

3. The judge characterized the request as stemming from "comfort" rather than religious belief, ie., rather than motivated by a belief that complying with the order would violate her religious beliefs.  He relied on the fact that she had previously uncovered for the purpose obtaining a driver's license. Is that overstepping the judicial role, or just reasonable application of the law to the facts before him?

The timing is weird, in that the ruling was made last October and is only going to appeal next month.  I can't find a record of the ruling - it was probably orally given.


I was reading this over someone's shoulder on the subway today and didn't get past the first sentence in the article, so thanks for posting this! 

I'm wondering if maybe this should go in the anti-racism forum.  It's just unbelievable.  The defendant IS facing his accuser in open court - just because she's wearing niqab doesn't mean she's not there, for god sakes.

Talk about revictimized in court!  A rape victim, being forced by the judge to undress for her alleged assailant again? 


Yeah, I wasn't sure where to post this.  I can see the anti-racism angle, definitely, although for me it does extend more broadly than that.  I suppose, on similar reasoning, it could properly be placed in feminism as well.

Star Spangled C...

I don't see this conflicting with "facing your accuser." She's still there. And if she typically wears a niqab in her daily life, this is how she would normally appear when being "faced." She's not the one on trial here. I could see if SHE were accused of a crime and they needed to see her face in order to identify her then it would make sense to ask her to take it off but I don't see how wearing this has anything to do with her her testimony.


"Facing an accuser" is really more of an U.S. term, literally called "the confrontation clause".  The concept in Canada is the right to full answer and defence.  And, yes, for an accused it would normally include the right to look the complainant in the eye.  No, the complainant is not "on trial"
(though of course in sexual assault cases that is still what happens at a practical level) but the accused has a constitutional right to defend against the charges, including rigorous cross-examination. As I said in the OP, that right has already been departed from in some cases. 

In the vast majority of cases, the identity of the witness (accused or complainant) is not in issue and the wearing of a niqab is not relevant.  What IS potentially an issue is whether it is important to be able to see someone's face to determine whether or not you believe them.  That doesn't really have to do with the accused's rights.  It's a question of ensuring that the judge or jury has all of the necessary tools to do their job.  I'm not sure we have the evidence to say whether it matters or not.   If not, then the general rule in criminal trials is that we give the accused the benefit of whatever decision we make. 

M. Spector M. Spector's picture

Reminds me of the bad old days when Igor Gouzenko was permitted to testify in court with a bag over his head to conceal his true appearance.

I guess they wouldn't have allowed that if he were a Muslim.

V. Jara

I think the sexual assualt nature of the case is the whole thing that makes it an issue. I hope the judge will recognise that in their opinion. For 99.9% of muslims, deveiling in court would not be a religious issue. To the best of my knowledge, it's well recognised that there is an exemption for appearances in court. link


M. Spector wrote:

Reminds me of the bad old days when Igor Gouzenko was permitted to testify in court with a bag over his head to conceal his true appearance.

I believe the reason for that was that he was a "cipher clerk" and they didn't want him to be deciphered.