Supreme Court of Canada rules on niqab case


Back in the early days of this blog, I talked about an Ontario court case involving a woman who did not want to be compelled to remove her niqab (a Muslim face covering) in order to testify against two of her family members who she accused of sexually abusing her over a number of years. I thought it was an interesting case for those of us interested in how to properly build a secular society that respects personal expression but does not kowtow to every religious cause under the sun. I said this at the time:

For once, I don’t have a clear-cut answer of what the court should do. On the one hand, testifying would have deleterious effects on the plaintiff and possibly cause her to lose her family and social life; it would most certainly deter other abused women from coming forward after they see that the consequence of speaking up is social isolation (and possibly more abuse). On the other hand however, allowing her to wear the veil not only violates the right of the accused to confront their accuser face-to-face, but implicitly assents to the practice of veiling women.

The case found its way to the Supreme Court of Canada, who handed down their decision this morning. I have, on several occasions, expressed my deep respect and admiration for Canada’s Chief Justice Beverley McLachlin, who wrote for the majority in the 4-2-1* decision, finding that while the Canadian Charter of Rights and Freedoms (equivalent to the U.S. Bill of Rights) does explicitly defend a person’s right to freedom of religion, it also explicitly defends the rights of the accused. As such, the decision prescribes a series of test questions that must be satisfied before requiring a woman to remove her niqab to testify.

The full text of the decision is here, and my own summary and analysis of the decision follows below the fold.

The majority decision

Summary: the preliminary trial judge may rule that a woman must uncover her face to testify, but must balance certain questions in doing so.

The central conflict within this case surrounds the Section 2 right of all Canadians to freely express their religious beliefs, with the right of an accused person to have a fair trial. The Crown argued that allowing someone to cover their face during testimony creates a situation in which relevant information, namely cues from facial expression, is missing from the jury’s ability to determine witness credibility.

Chief Justice McLachlin (writing for the majority) provides the following four-part test that judges should consider when deciding whether or not to order a woman to remove her niqab:

1. Is the objection based on sincere religious belief?

The pretrial judge in the original case said that the woman’s belief in the original case was not sufficiently strong, because she was willing to remove it in other circumstances (e.g., driver’s license photo, security screening). Chief Justice McLachlin found that the strength of a belief was not the relevant test, but rather judges should consider the sincerity of the belief. So for example, a woman who had never worn a niqab before cannot suddenly have a ‘come to Muhammad moment’ and cover herself in the courtroom.

2. Does the covering of the face seriously affect the fairness of the trial?

Judges must determine whether it would be meaningfully difficult to establish the credibility of the witness if her face were covered. This speaks specifically to the right of the accused to confront hir accuser, and would likely be based on whether or not the accused claims that seeing the witness’ facial expression during cross-examination (for example) is necessary. Again, the legal code and legal precedent seem to suggest that this is a required feature in the administration of justice.

3. Is reasonable accommodation possible?

Whenever two Charter rights are in conflict, the correct question to ask is whether or not a reasonable accommodation can be made that respects the rights of all parties. I am not personally sure what such an accommodation could possibly look like in this particular circumstance, but if the accused and accuser were able to arrive at some mutually-agreed-upon compromise, a judge should allow it.

4. Do the merits of compelling the witness to uncover outweigh the harms?

Justice McLachlin makes particular note of the fact that in addition to the per se harm of violating a person’s right to religious expression, an across-the-board requirement of all niqabis to remove their veil would have a ‘chilling effect’, making abused women less likely to come forward to confront their abusers (since they would be forced to expose themselves in a way they find unacceptable). However, judges must balance that harm with the possibility that the accused has rights, and that there is harm both to those rights and the administration of justice that is done when an exceptional right to cover one’s face is granted similarly across-the-board.

All in all, I find this ruling more or less typical of what I would expect from the McLachlin court. There is a presumption, from a popular perspective, that the rights of the accuser are fairly well safeguarded. Society tends to sympathize with the victim of a crime  more than the perpetrator (although in abuse cases this is very much an open question), and so it is up to the courts to ensure that an accusation is not a de facto conviction, at least within the context of the law. Conservatives refer to this as “hug a thug” jurisprudence, but it is more properly referred to as a principle of fundamental justice. The current government is banging on the table and shouting about the rights of victims – this is a common canard from them – and in that climate the decision by the court to ensure that the accused party has the defense of law is to be expected.

I am similarly unsurprised that the court would leave it up to judges to exercise their discretion rather than provide a hard-and-fast ruling. This is, at least to my amateur observer’s eye, fairly normal behaviour for the court. It is also, if you’ll allow me to forecast wildly into the future, good news for an upcoming challenge of mandatory minimum laws for marijuana possession – the court doesn’t like it when judges’ hands are tied by legislation. Progressives who wish to decry this decision can at least find some comfort in the fact that an argument for judicial discretion is an argument against mandatory sentencing guidelines.

I will summarize the dissenting opinions, as well as some of my own reservations about this case, in a follow-up post.

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*There are two things that need to be noted regarding this number. First, it is a rare ‘split’ decision for this court, which rarely falls along the left/right ideological lines that are so commonly attributed to the United States Supreme Court. There are ideological splits within the court, to be sure, but they are not left/right splits. The second thing that is worth noting is that there are two dissenting opinions that go in opposite directions – this is explained further in a following post.

Comments

  1. says

    “The Crown argued that allowing someone to cover their face during testimony creates a situation in which relevant information, namely cues from facial expression, is missing from the jury’s ability to determine witness credibility.”

    Actually trying to remember back to my social psychology, isn’t it easier to tell if someones lying if you listen to their voice and don’t look at their body language as it can be easily faked or misleading. *a quick look to my bookshelf later* That is indeed what Richard Wiseman concludes in the book quirkology. “When it comes to detecting lies, people are better off listening rather then looking” (chap2 page 54). So in that sense I think the crowns argument is even weaker.

  2. says

    I’m on the woman’s side in this one (at the moment, anyway).

    To start with, I call bullshit on the “need to see the accuser’s face to judge whether they’re telling the truth” claim. I’m open to actual data on the question, but to me it sounds like one of these things everyone believes they can do, but mostly can’t.

    Second, everyone has a personal standard of modesty, a degree of exposure that they feel comfortable with, which may involve more coverage than the minimum set by either law or social convention. I may find someone else’s level of modesty ridiculous or prudish, and I recognize that social conditioning often plays a problematic role in determining such individual preferences — but however arrived at, their standard, today, is *their* standard. And I find asking a woman to violate her own preferred degree of modesty in a *sexual assault* case really very troubling.

    And note that I didn’t need to appeal to “freedom of religion” to make my argument.

  3. says

    everyone has a personal standard of modesty

    And note that I didn’t need to appeal to “freedom of religion” to make my argument.

    Also note that you seem to be completely oblivious to the reasons that women are wearing the garment. It’s not about personal modesty or a fashion choice; to try to frame it as such is douchey. This is a required garment according to their religion, even though it is not embraced by all followers of the religion and the idea of a veil clearly predates Islam. What it has become is truly reprehensible, she must wear it or the mere sight of her hair or delicate cheekbones might drive a man into a sexual frenzy; because that’s what she is for, a vessel for man to plant his seed in and hopefully produce male offspring. She can also go work and give her husband/father the money she earns as long as it in an all female workplace (or better yet a city built special for her to work in). She needs to walk behind her husband, not beside him, and needs his permission to to do basically anything or go anywhere. These are, many times, women that are being utterly controlled by men, raised to think this is the way it should be. Any man that needs to have his women dressed like this is seeing only property, not person.

    Let’s be clear here, it is men deciding that women need to be covered like this, for pathetic reasons. It is not their (women’s) standard, they have no say in it. This garment is a sign of oppression and the reason that France banned it in all public places and made a law jailing men that try to force women to wear it.

  4. mythbri says

    Eamon, I agree with a lot of what you’re saying. But the woman in this case did remove her niqab for other government requirements. But that’s not a good enough reason to expect her to remove it in other situations.

    I’m also skeptical of people’s “ability” to use facial expressions to reinforce or diminish their belief in what that person is saying. People are notoriously unreliable in that way, and it’s not like blind people serving on juries ever have that option – does that make their opinion less valuable?

    I think that I’m going to side with the woman here.

  5. mythbri says

    @usingreason

    But the niqab is a symbol of her culture and her religion. Regardless of my personal feelings about what it symbolizes, I don’t get to tell her how to identify. The Catholic church has caused enormous harm to women historically, and continues to do so today by marginalizing its own female members (nuns, parishoners, etc.) and meddling in national governments.

    But Catholics are not required to remove their crucifixes when testifying.

  6. says

    But the woman in this case did remove her niqab for other government requirements

    Might be worth noting that in both cases, she did so with only women present. The government makes an accommodation for her religious needs in the cases of security or photographing. The Court suggests that this is not really a relevant component of the argument.

  7. says

    @mythbri

    I agree, I never indicated that we should be telling her what to do. Christians, including Catholics, have done a lot of harm and tried very much to keep women in ‘their place’ for centuries – no argument. What the Catholic church is doing to women in Africa is reprehensible.
    This is not an easy issue and I remember reading about the decision in France a couple years ago and thinking, ‘They can’t do that, it’s wrong.’ But the more I thought about it the more I found myself agreeing with it, at least the jailing men part.

  8. says

    It is not their (women’s) standard, they have no say in it.

    I would talk to a few niqabis about this statement. A lot of them that I’ve heard from strongly disagree with this characterization and find it patronizing and insensitive.

  9. mythbri says

    @usingreason

    Punishing someone for forcing someone else to adhere to an arbitrary cultural/religious standard is acceptable. Preventing someone from freely choosing to adhere to an arbitrary cultural/religious standard is not.

    @Crommunist

    I’m still not buying the “we need to see people’s faces to determine the truth of what they are saying” argument. If that were a legal requirement, then blind people would not serve on juries, extremely near-sighted people (like me) would not be able to serve without corrective lenses, and there would never be a reason to admit anonymous testimony with the person’s face and/or voice obscured.

    I do look forward to reading your next post about this, though.

  10. says

    I would talk to a few niqabis about this statement. A lot of them that I’ve heard from strongly disagree with this characterization and find it patronizing and insensitive.

    I’m sure that this is true, just as a person raised in an Evangelical Christian household and home schooled and attends Evangelical Christian summer camps grows up with some strange beliefs not shared by other Christians.

    Again, not an easy thing. We must respect the right of people to have beliefs but I am not required to share that belief.

  11. says

    just as a person raised in an Evangelical Christian household and home schooled and attends Evangelical Christian summer camps grows up with some strange beliefs not shared by other Christians.

    No, not like that at all. Like I said, it’s worth actually listening to their position on this issue before making broad statements ‘on their behalf’.

  12. mythbri says

    @usingreason

    There are feminists from many different countries and religions. Atheistic or non-religious feminism is not automatically the best kind, and feminism has historical problems with allowing feminist minority voices a real and respected place within the movement.

    There are some arguments that can be made based on individual bodily autonomy and freedom of expression, but it’s best to let the feminists “on the ground”, so to speak, to take the lead in the conversations.

    For example, I object to FGM based on the principle of bodily autonomy, because in many cases it is done to children who cannot give consent, meaningful or otherwise. If women choose to undergo some kind of circumcision when they’re adults, then while I don’t agree with them, I certainly don’t have the right to prevent them from doing so.

  13. lirael_abhorsen says

    “Like I said, it’s worth actually listening to their position on this issue before making broad statements ‘on their behalf’.”

    A thousand times yes.

    People who claim to be interested in the liberation of a marginalized group of people, should prioritize the voices of the actual group of marginalized people when talking about their issues, instead of making assumptions about their positions. Now, of course, groups of people are not monoliths, and they will disagree on certain issues (Muslim women, for instance, certainly don’t all agree on the subject of hijab/niqab). But it’s still better to actually ask and listen than to play at being the [white/male/developed world/able-bodied/etc] savior.

  14. says

    Muslim women, for instance, certainly don’t all agree on the subject of hijab/niqab

    Definitely, but the point I was objecting to most strongly was the idea that if you wear a niqab, it is de facto because you are forced to do so by your family or male relatives’ expectations. Many niqabi wear it, to hear it told, as an outward signal of their culture, much in the same way that black women are once again ‘defiantly’ wearing natural hair. It’s quite the opposite of an absence of agency that causes them to cover.

  15. lirael_abhorsen says

    @Crommunist

    Oh, I absolutely agree with you there. Didn’t mean to imply otherwise, just wanted to make sure that I wasn’t painting Muslim women’s views as a monolith myself in the midst of my rant about how their views are the ones we should be listening to when it comes to their liberation.

  16. Northern Free Thinkers says

    I’ve seen many many comments on various blogs about the argument of “needing facial expressions to decide on truth”, that can be an interesting debate, but it’s not what this court case is about. From the justice system side, it’s about the right of the accused to have a fair trial, about not having witnesses hide behind a wall of anonymity. Kinda like a black person in court would not want to have a bunch of hooded klan-men point their fingers while hiding their faces. This is an integral part of our justice system, and its reason is to provide a more just trial system.

    From the religious female side it is extremely bad for women. It means that religious muslim women can hide with fear and accuse without showing who they are, whereas all other women must FACE their perps. If some women are allowed to hide and others must show their face, that is an uneven handling of justice. The point of our justice system is to have everyone handled equally.

    On face coverings generally in society, in North America, if we do not fight face coverings, we better get used to more and more honour killings, because face coverings are bad for females, it treats us like chattel. Muslim females must adapt to Canadian standards. If they want a different legal system, one that humiliates them, let them chose to live in a country which lives by those regressive laws. Face coverings = death.

  17. says

    but it’s not what this court case is about

    Except that it totally is. Read the decision – that’s pretty much exactly what this case is about.

    Kinda like a black person in court would not want to have a bunch of hooded klan-men point their fingers while hiding their faces

    Lolwut? It’s not about whether or not you know who the plaintiff is, it’s about whether or not she needs to remove the veil while she’s testifying.

    The point of our justice system is to have everyone handled equally.

    That’s not even close to true. The justice system makes accommodations for people all of the time.

    On face coverings generally in society, in North America, if we do not fight face coverings, we better get used to more and more honour killings

    Oh here we go…

  18. Lurker111 says

    I believe that, unless you’re at a masked ball, adults should not be permitted to hide their faces in public, with the one exception of facial disformity, which can be verified by a judge, in chambers, without a jury or general audience present.

  19. says

    I believe that, unless you’re at a masked ball, adults should not be permitted to hide their faces in public

    And what possible justification could you have for that?

  20. says

    @4: I am in no way oblivious to that (and quite frankly: a fair reading of my comment would indicate this. Note that I didn’t say a damn thing about fashion, so I don’t know why you dragged that in). I still say there is something very creepy about the accused in a sexual assault case demanding that the accuser expose more of her skin than she wants to.

    @17: In addition to Ian @18, IIRC courts have accepted testimony given by CCTV (I think in cases where children must testify about abuse).

    @19: February. -20degC. Howling wind. Should I be arrested?

  21. says

    Second, everyone has a personal standard of modesty, a degree of exposure that they feel comfortable with, which may involve more coverage than the minimum set by either law or social convention.

    I find it odd to associate modesty only with the amount of skin visible to others.

  22. Lurker111 says

    “And what possible justification could you have for that?”

    I don’t mean to be too snarky, but let’s consider just one scenario:

    1. You’re a teller at a bank and twenty-five people come in, all wearing masks.

    Or another scenario:

    2. You get mugged, and you tell the officer that the perp was about 5’10”, 160 lbs. and wearing a Ronald Reagan mask.

    Or:

    3. A person with a consumptive cough works the buffet at your local eatery and, later, no one can describe him or her to the local health authorities.

    Seriously, I could go on for a while, here. There are some things that are just fine on the theoretical level that simply do not work on the practical. Sorry.

  23. says

    Aha. So paranoid fantasies.

    1 & 2, in addition to being stupid, are also not solved by a mask ban unless the mugger/bank robbers walk around the streets with the mask on. Which they probably wouldn’t, because that would be stupid.

    #3 could happen without a mask ban too (unless you are the kind of person who memorizes the faces of everyone working in every restaurant you visit), and is too far-fetched to even start describing how nonsensical it is. Hir employer doesn’t know what ze looks like?

    Seriously, these are the weakest doomsday scenarios possible. If you’re going to be paranoid, at least try to avoid being ludicrous in the process.

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