First test of Supreme Court's new face-veil rules imminent

It is a long way from the grandeur of the Supreme Court of Canada in Ottawa to the grey, gritty neighborhood in north Toronto where a courthouse shares space with a Swiss Chalet chicken restaurant, the office of an MP and a catering company.

Yet it is here, near busy highways and interchanges, that an important legal precedent may be set in the next few days in the wake of a ruling from Canada's top court.

The issue: Can a Muslim woman be ordered to testify without her face veiled?

This week, six years after it all began, a Toronto woman known only as N.S. was back in court with those she accuses of sexually abusing and assaulting her as a child, and with the same judge who ordered her to remove her face veil — or niqab — to testify.

Top court rules judges may order witnesses to remove niqab

Justice Norris Weisman is promising a decision soon, as the case is set to start on April 29. One of the options he proposed is having the woman testify without the veil over closed-circuit television.

However, her lawyer says her religious beliefs mean she must leave it on, closed-circuit TV or not, while the lawyers for the accused say they cannot get a fair trial unless they, and the court, can see her facial expressions as she testifies.

Judge Weisman's 2008 order — that N.S. had to remove her niqab while on the stand — was appealed all the way up to the Supreme Court in Ottawa. In December, it delivered a split decision, handing the dilemma back to individual trial judges to determine on a case-by-case basis.

The majority ruled that trial judges, in this case Judge Weisman, must conduct a four-part test in order to decide whether a Muslim woman can be allowed to wear her niqab while testifying.

Does she have a sincere belief in her religion?

Does wearing a veil create a serious risk to trial fairness?

Is there any other way to accommodate her?

If no, does what the court called the "salutary" effects of ordering her to remove her niqab outweigh the "deleterious" effects of doing that?

Courts in Canada have long dealt with competing rights and religious freedoms, but this particular case has led to a vivid clash of basic principles, and that clash was on display again in courtroom number 210 earlier this week.

The complainant, N.S., arrived wearing her niqab and a black floor-length cloak known as an abaya. The two accused, one wearing a Muslim prayer cap and the other a black leather jacket, sat on the other side of the small courtroom, a Hindi-language interpreter between them.

For this hearing, N.S. was allowed to wear her veil as she took the stand to testify about her religious beliefs.

She has worn the niqab for almost 10 years, the 37 year old said, saying it is something she must do as part of Sunnah — a way of life based on the teachings of Muhammad.

The judge, unfamiliar with the concept, asked N.S. to spell the word.

"Islam is not a religion of extremism," she said, so she had felt comfortable removing the veil when she suffered from morning sickness or allergies.

She has also removed her niqab for her driver's licence and passport photos, and for police and border guards, she added, calling it acceptable because she did not have a choice.

She also allowed that she lifted it when driving, though put it back in place when she was stopped in traffic.

Yet to remove the veil in court to testify about sexual abuse allegations would create a "sexual environment" that would be prohibited by her religion, she said.

During the hearing, defence lawyers argued that her willingness to remove the niqab in some circumstances suggested her religious belief was less than sincere and certainly not enough to warrant interference with their right to a fair trial.

Her lawyer though, described her as forthright and sincere, calling her a "straight-up gal" at one point.

But how can a judge or a jury assess N.S.'s credibility if no one can see her face and her expression, asked defence lawyers.

With the niqab in place, "the set of a jaw, a smirk, a smile, all these visual clues are eliminated," said defence lawyer Douglas Usher.

The judge asked the lawyers to consider a compromise, testifying via closed-circuit television.

The defence agreed, but the lawyer for N.S., David Butt, said no as it would still lead to her "objectification and sexualization" just as much on television as in person.

Now, it is up to Judge Weisman to once again decide whether the niqab stays or goes.

While the stakes are high for N.S., the decision will also be studied across Canada.

Some advocates for abuse victims say a ruling forcing N.S. to remove the veil will discourage other Muslim women from seeking justice, while others contend that allowing the veil will invariably damage the right to make full answer and defence against charges.

As the judge adjourned to prepare his ruling, he told both the complainant and the accused that he was sensitive to the stress they were facing, given how long this case has taken.

For him, this ruling will likely amount to a judicial swan song. About to turn 75, Judge Weisman is set to retire on May 1.