Niqabs for some who testify, but not for all, Supreme Court declares

A debate over whether Muslim women should be allowed to wear face-covering niqabs while testifying at trial has wheeled its way through to the Supreme Court of Canada, where a seven-judge panel weighed religious and “fair trial” rights and issued a 65-page conclusion.

The result is a decision only negligibly clearer than those that preceded it. But what did we really expect?

The Supreme Court of Canada ruled in a split decision that niqabs will be allowed on the witness stand in some cases and not in others, leaving it up trial judges to decide on a case-by-case basis.

[ Related: Canada's top court rejects blanket rule on niqabs in court ]

Those who wanted a clear court decision should keep their eye on the Ikea Monkey ownership battle. This one is for lovers of specificity and detail.

The question about whether niqabs should be allowed in court was raised in a criminal case against two Muslim men who had been accused of sexually assaulting a female relative.

The men requested she remove her niqab when testifying against them, essentially claiming that not being able to see their accuser’s face stripped them of their right to a fair trial. The woman said her religious belief forbade her from revealing her face to men who were not family members.

After weighing the issue, the trial judge declared that her religious belief was "not that strong" and that she should remove the niqab when she testified. She appealed the ruling up the ladder until it arrived at the Supreme Court.

The CBC reports that the Supreme Court’s decision sided with an appeal judge, who valued the right to a fair trial above the niqab wearer’s religious rights.

But it also laid out the specific issues that should be weighed when the question is inevitably raised in the future.

Via the CBC, the majority ruled:

It may be ventured that where the liberty of the accused is at stake, the witness's evidence is central to the case, and her credibility vital, the possibility of a wrongful conviction must weigh heavily in the balance, favouring removal of the niqab.

The Supreme Court would have been hard-pressed to come to an “all or nothing” conclusion, as some argued was necessary.

On one hand, telling Muslim women who wear niqabs that they must sit bare-faced when facing an alleged aggressor could stop some from agreeing to testify, or even bringing charges forward in the first place.

[ Related: 6 niqab legal controversies in Canada ]

On the other, allowing a witnesses face to be covered could be detrimental, at least in part, to an effective cross-examination. The significance and scope of the evidence they are expected to provide must be weighed to determine whether it requires the intrusion.

The Supreme Court of Canada said whether allowing a witness to wear a niqab must balance religious freedom, trial fairness, possibility of accommodating both rights and the possible effects of forcing the removal of the niqab.

It will be up to future judges to execute that balancing act. It is a just decision that is bound to satisfy no one.