Muslim woman makes new attempt to testify in sex assault case while veiled

Steve Mertl
National Affairs Contributor
Daily Brew

A groundbreaking case that led the Supreme Court of Canada to clarify the rules on whether Muslim women can testify while fully veiled is back in a Toronto courtroom.

A woman identified only as N.S. returned to court Monday to renew her request to be allowed to give evidence while wearing a niqab during the trial of two relatives accused of sexually assaulting her when she was a child.

“I observe the school of thought where the veil is obligatory,” the woman, wearing a black niqab that revealed only her eyes, told the judge, according to the Toronto Star.

Questioned by her lawyer, David Butt, N.S. said she wears the niqab to ensure she does not create a "sexual environment," the Star said.

The case was back in court some six years after N.S. refused to remove her veil during the preliminary hearing into the sexual-assault allegations.

[ Related: Niqabs for some who testify, but not for all, Supreme Court declares ]

The Supreme Court ruling, with one judge dissenting and two others concurring with reservations, upheld lower-court rulings requiring veil-wearing women to uncover their faces during testimony.

But it also kicked the issue back down to the presiding judge in the N.S. case and set a new, four-part test aimed at balancing a woman's right to testify with an accused's right mount a full defence, as the Star noted.

Defence lawyers contended sexual-assault cases often hinge on the credibility of the parties. It's harder to assess the truth of someone wearing a face covering, opponents of the practice argued.

Butt told CBC News the high court's guidelines were fair to his client.

"She's confident that she will have a very real opportunity to put her position forth, and that her position will be given the careful and respectful treatment that it deserves," Butt said.

N.S., now in her mid-30s, told the court she covers up while in public or with men who are not "direct" members of her family, the Star reported. But she also said she removes her niqab during her work as a driver, putting it back on if her vehicle is stuck in traffic.

Evidence at a preliminary hearing is normally subject to a publication ban but the judge in this case allowed reporting of N.S.'s testimony regarding the niqab as long as her identity was not published.

The possibility N.S. might be able to testify on the sex-assault allegations while veiled still doesn't sit well with defence lawyer Douglas Usher.

“I think we should promote secularist and rational values in our court system that have been recognized in 400 years of common law precedence and ... I don't think we should accommodate things which are nonsense,” Usher told the Star.

Authorities have been wrestling with the issue veiled Muslim women in recent years, trying to accommodate the needs of a multicultural society with the requirements of official Canada.

[ Related: Six niqab legal controversies in Canada ]

Quebec's chief electoral officer in 2007 to reverse a decision allowing niqab-wearing women to get their ballots for the provincial election after all three major parties objected, CBC News reported. Six months later, Canada's chief electoral officer allowed women wearing a niqab to vote in a federal byelection, raising the ire of Prime Minister Stephen Harper.

In 2011, Ottawa announced a ban on face coverings for immigrants taking a citizenship oath.