(from January, 2013 MuslimLink)
By Matthew Behrens
The
recent Supreme Court of Canada judgment in the NS case – deciding whether a
woman who brought charges of childhood sexual abuse against male relatives
could wear her niqab while providing testimony – sparked much discussion that
reflected the ongoing tension of a Canadian society where misperceptions and
mistrust of anything associated with Islam remain a constant.
Part
of those tensions reflect an Islamophobic lens that, as University Of Ottawa
professor Natasha Bakht points out, positions the niqab as a symbol that is
“experienced by non-wearers as a form of confrontation or criticism against
national ways of living and dressing.” In another respect, Canadian society in
general and courts in particular continue to have much catching up to do in the
respectful treatment of sexual assault survivors such as NS who, while still a
child, reported alleged abuse to a teacher. However, her father convinced
police not to lay charges. Charges were eventually laid when NS was an adult.
In
the NS case, the accused, a male cousin and an uncle, allege that an inability
to see the full face of NS while she testifies denies them the right to a fair
trial because they need to observe her facial demeanour as a means of assessing
credibility. NS’s lawyers, among others, argued that this is a red herring,
since demeanour is at best an inexact, subjective science that, even if
relied upon, can be measured in
innumerable other ways in ultimately making a determination about truthfulness.
WHACKING THE COMPLAINANT
In
the end result, the majority of the Supreme Court sent the issue back to the
original judge hearing the case, concluding that decisions about the niqab
could be made on a case-by-case basis. While some appeared satisfied with the
result – including the complainant’s lawyer – the decision failed to resolve a
number of significant issues. Chief among them is whether the defendants’
demand for a removal of the niqab – which NS had already said would make her
very uncomfortable – is another form of continuing abuse, what intervening
group Women’s Legal Education and
Action Fund (LEAF) called an attempt to “whack the complainant,” a common
defence tactic. In other words, as LEAF argues, “the removal of the niqab
in this context is best understood as an attempt to humiliate, degrade and
intimidate the complainant. Such intimidation can force a complainant to
withdraw from participating at trial, likely putting an end to the
prosecution.”
Indeed,
that issue remains a live one in the NS case, as she still does not know
whether a judge will order her to remove her niqab. While the Supreme Court
majority found that requiring “witnesses to park their religion at the
courtroom door is inconsistent with the jurisprudence and Canadian tradition,”
if such uncertainty is to become the standard, this will likely create a
barrier that keeps a specific group of women from accessing the justice system
when they have been wronged.
Ironically,
the male defendants in the NS case did not appear to object at the original
preliminary inquiry when NS was questioned about her strongly held beliefs by
the judge. That judge listened to
her responses while she was wearing her niqab and did not say that her niqab
prevented him from assessing her testimony. During that questioning (one she
undertook without the benefit of prior legal advice), NS said she had worn
niqab for five years, declared she would look defence counsel squarely in the
eyes, and said that she would feel “a lot more comfortable” if she did not have
to remove it. The judge, however, concluded her religious belief was “not that
strong,” and so began the process leading to the Supreme Court challenge. (The
Supreme Court, notably, said the judge failed to undertake a proper inquiry
into the sincerity of her belief. Equally notable, the Supreme Court has ruled
in the past that “a court is in no position to question the validity of a
religious belief.” )
INADVERTENT DISCRIMINATION
While
two dissenting Supreme Court justices insisted on a complete ban on the niqab
in all criminal proceedings, Justice Rosalie Abella, in her singular dissenting
opinion, declared that unless “the witness’s face is directly relevant to the
case, such as where her identity is an issue, she should not be required to
remove her niqab.”
Abella’s
findings, which appear more sympathetic to NS’s view, may still nonetheless be
exploited to “whack the complainant,” while perhaps inadvertently buying into
the notion that a woman might wear niqab to hide behind false charges. It is
difficult to imagine that, even under the narrow circumstances described by
Justice Abella, a defence lawyer will be shy about pushing the identity
envelope. Meanwhile, Natasha Bakht notes that a similar vein of inferring the
potential for misrepresentation via niqab is one that has arisen in Pakistani
courts for niqab-wearing lawyers, remarking: “That veiled advocates are
suspected of misrepresenting themselves when lawyers have codes of conduct that
they are required to abide by, indicates that even those most educated in
justice do injustice by resorting to biased beliefs about a marginalized group
of women.”
Thus,
assaulted women who wear niqab will still question whether it is safe to go to
court, since an ironclad guarantee is not in place. This is ironic, since
within the Supreme Court’s decision are found numerous examples of why the main
argument – the need to see NS’s face – is not necessarily determinative of the
strength of her testimony.
DEMEANOUR EVIDENCE
“Courts
regularly accept the testimony of witnesses whose demeanour can only be
partially observed and there are many examples of courts accepting witnesses
who are unable to testify under ideal circumstances because of visual, oral, or
aural impediments,” Abella wrote, noting that a demeanour assessment of NS
could include gestures, eyes, body language, tone and inflection of the voice,
cadence of her speech, and, ultimately, the substance of her verbal answers,
which would be subject, no doubt, to vigorous cross examination.
In
a scholarly article “Objection, Your Honour! Accommodating Niqab-Wearing Women
in Courtrooms,” Bakdt quotes a study finding “that with rare exception, ‘no one
can do better than chance at spotting liars by their demeanour.’ It is amazing
to many people when they learn that all of the other professional groups
concerned with lying – judges, trial attorneys, police, polygraphers who work
for the CIA, FBI or NSA (National Security Agency), the military services, and
psychiatrists who do forensic work – did no better than chance. Equally
astonishing, most of them didn’t know they could not detect deceit from
demeanour.”
Notably,
while members of the Supreme Court insisted on the right of the accused to face
an accuser, there remain instances, largely affecting Muslims in Canada, where
this is simply not allowed. In security certificate cases, most of which are
heard in secret, an individual never sees, much less hears, or even reads
transcripts of, the allegations being made against them. In addition, in the
limited public hearings, witnesses from the Canadian Security Intelligence
Service often insist on testifying behind screens or video videolink from
secure bunkers, invoking vague claims of national security.
Similarly,
individuals sought under extradition are generally not allowed to call as
witnesses the individuals who piece together the paperwork that forms the basis
of the extradition request.
Ultimately,
while the Court majority noted “The need to accommodate and balance sincerely
held religious beliefs against other interests is deeply entrenched in Canadian
law,” Abella’s dissent starkly reveals that, while accommodations will be
sought, individuals like NS still face being “forced to choose between laying a
complaint and wearing a niqab, which may be no meaningful choice at all.”
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