Can Canada Prevent Muslim Women From Wearing the Niqab in Court?

Last month in Canada, a landmark ruling that could radically reshape the Canadian justice system's inclusion and conception of religious rights was implemented in an Ontario courtroom after a lengthy legal battle.

The question of whether a woman could wear the niqab — a black garment that covers all but the wearer’s eyes — surfaced during court proceedings six years ago, and will ultimately be decided by a test that seeks to determine among other things, whether a woman’s religious beliefs are “sincere.”

N.S., an Ontario woman accusing a relative and another man of sexually assaulting her in the late 80s, asked to wear the garment while testifying during a preliminary inquiry in 2008. N.S. was told by Judge Norris Weisman to remove it, for the reason that it would impair the defense’s ability to assess her demeanor, and the judge’s ability to assess her credibility. In the case of religious freedom vs. right to a fair trial, the latter prevails.

Judge Weisman’s decision was appealed all the way to the Canadian Supreme Court where in December, judges on the bench put forth a sympathetic ruling (split 4-2-1), that while defending foremost the inviolability of the justice system, allowed for compromise and space to consider each case individually. The decision ultimately put the onus on local judges to choose, stating:

“A witness who for sincere religious reasons wishes to wear the niqab while testifying in a criminal proceeding will be required to remove it if (a) this is necessary to prevent a serious risk to the fairness of the trial, because reasonably available alternative measures will not prevent the risk; and (b) the salutary effects of requiring her to remove the niqab outweigh the deleterious effects of doing so.”

Evidence of their willingness to compromise and to demonstrate the flexibility of the Canadian legal system, judges considered a variety of measures that would allow women to wear the niqab (preserving their freedom to practice religion) without infringing on the defendant’s right to a fair trial. Women could testify in front of female judges and lawyers, testimonies would be recorded and then viewed through a live feed.

But in the end, the Supreme Court devised a four-point test that consists of three very conciliatory questions, and one very difficult one. To this author, this first question undoes the accommodating nature of the rest, by asking what, exactly, religiosity is for an individual and whether or not it is legitimate. The subjective space around this question will make the test near impossible to administer for acting judges, because the question is slippery. This first question — one that N.S. failed, according to Judge Weisman — is whether “removing the niqab will interfere with her religious freedom,” which must be displayed by, “sincere religious belief.”

Sincere is a loaded word. A question like this obscures the multitude of meanings that we individuals ascribe to our actions. Religiosity itself is a product of learned behavior and our experiences, therefore how can faith be considered sincere or insincere and be held to account for it? In a situation like that of N.S., who was considered to not have “sufficiently strong” beliefs, because she chose to pose for a passport and driver’s license photo in front of female officers, the choices that she made as she related to a secular government and secular public were considered by this particular Judge Weisman to demonstrate that her beliefs are not so serious, or sincere.

In contradistinction with the first question, the remaining questions are extremely compromising. “Where evidence is uncontested, credibility assessment and cross-examination are not in issue,” a woman can wear the niqab, however in cases of a criminal nature, the judge and jury have the right to view the witness and her responses on the stand. In the case that right to religious freedom and the right to a fair trial continue to collide, nature of the trial, the evidence presented, and the individual’s role in the case are all considered, as well as potential compromises that could be made.

Reading the Supreme Court decision and the following tracts, this author marveled at the depth of deliberation in trying to accommodate women like N.S., who represent the changing social fabric of a society with democratic and secular underpinnings. While the judges showed a remarkable level of compassion for an issue that has been treated in an altogether different manner in France, for example, there still exists a substantial rift in the understanding of faith as an ideology in a secular world, and accommodating that faith as an alternative and sometimes clashing set of principles without losing the essence of Canada-ness.

The niqab test is for the most part reasonable and sensitive, but attempting to classify whether or not an individual's beliefs are sincere, or something else, is at best, a mistake, and at worst, a significant transgression of the court.