Dubai: Can a woman testify to rape if her face is obscured by a niqab (veil)? Or do the two accused rapists have the right to see her face in court?
That's the legal quandary seven judges of the Supreme Court of Canada was expected to rule on late last night in Ottawa.
Under Canadian criminal law and the country's Charter of Rights and Freedoms, defendants are entitled to confront their accusers in open court as part of fair trial rules and practices.
But two Ontario men accused of raping N.S., a Muslim, want her to testify in court against them without her wearing her niqab. The pair's lawyers say that because they won't have the right to see the facial nuances and reactions of the victim who made the rape complaint while she is on the witness stand, they cannot be guaranteed a fair trial.
But the complainant, a devout Muslim, wants the right for her face to remain covered in line with her religious beliefs. Her lawyers also say that if she is forced to remove her veil, other Muslims in similar circumstances will be reluctant to make complaints to police lest they also have to testify in court uncovered. And they say she has a right under that same Charter of Rights and Freedoms to unhampered religious expression.
"The niqab case is a perfect storm of issues," University of Ottawa law professor Carissima Mathen said in published reports yesterday.
"Demeanour has been used in destructive ways against sexual assault complainants. The difficulty is compounded when a witness observes different cultural cues — avoiding eye contact for example."
The case, she said, should be decided on common legal principles and practices, rather then delving into interpretations of Islam.
In October, the Ontario Appeals Court had proposed a compromise by which the judge hearing the criminal case against the two men could ask N.S. about the sincerity of her beliefs and whether she had made exceptions to her religious practices in the past.
That compromise was rejected and the case moved on to the Supreme Court of Canada, the highest legal authority and arbiter of the law.
The seven judges who will rule — normally there are nine — will have to balance how sexual assault complainants are treated.
It's the difference between freedom of religion and the right to a fair trial, Mathen said.
"It would pervert justice if the niqab became a tool to be used against sexual assault complainants, or if rules were developed which discourage these women from coming forward," she said.
