Magazine article Herizons

Niqab Subject to New Court Rules

Magazine article Herizons

Niqab Subject to New Court Rules

Article excerpt

In a split decision in December, the Supreme Courtof Canada set out conditions aimed at balancing a niqab-wearing complainant's rights against those of the accused.

The case of N.S. vs. R. involves a sexual assault complainant who wears a niqab, a veil that covers the face with the exception of the eyes. N.S. alleges she was sexually abused for several years as a child by her uncle and cousin. Atthe preliminary inquiry, the accused objected to N.S. wearing her niqab while testifying, asserting the right to "demeanour evidence," which means the court should be able to assess N.S.'s facial expressions to determine her credibility and require the removal of her niqab.

The preliminary inquiry judge ordered the complainant to remove her niqab, but the Ontario Superior Court of Justice and the Ontario Court of Appeal quashed the order. Eventually, N.S. appealed to the Supreme Courtforclearancetowearthe niqab atthe preliminary inquiry and trial.

The Women's Legal Education and Action Fund (LEAF) was an intervener in the case and backed the complainant's right to wear herniqab.LEAFarguedthat ordering N.S. to remove her niqab as a precondition to testifying would violate her rights under Section 7 (security of the person) and Section 15 (equality rights) of the Canadian Charter of Rights and Freedoms.

LEAF argued that forced removal of the niqabshould be viewed as an attempt by the accusedto "humiliate,degrade and intimidate the complainant." Such intimidation, it held, could force a complainantto withdrawfrom participating at trial.

Writing for the majority, Supreme Court Chief Justice Beverly McLachlin said, "The answer lies in a just and proportionate balance between freedom of religion and trial fairness, based onthe particular case before the court. …

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