Decision takes Canada in a forward direction
By Trevor Scott Howell and Natalie Stechyson, Calgary Herald; Postmedia News December 21, 2012
Leaders in Calgary’s Muslim community praised Thursday’s decision by the Supreme Court of Canada that could allow women, under certain circumstances, to wear a niqab while testifying in court.
“This is a very good decision,” said Syed Soharwardy, founder of the Islamic Supreme Council of Canada. “It takes the Canadian society in a forward direction rather than backward direction. For a fair trial, it is OK to reveal your identity and remove the niqab. In my view it matches with the Islamic teachings.”
Canada’s top court dismissed the appeal of an Ontario woman who accused her cousin and uncle of childhood sexual assault and sought permission to wear a niqab on the witness stand.
In a split ruling, 4-2-1, Canada’s top judges also laid out a framework to be applied on a case-by-case basis.
That framework calls on lower court judges to consider the harm to the witness, the harm to broader society, the harm to the fair trial rights of the accused and what stage of the proceeding a case is at.
Applying this framework involves answering four questions, according to the judgment written by Chief Justice Beverley McLachlin:
- Would requiring the witness to remove the niqab while testifying interfere with her religious freedom?
- Would permitting the witness to wear the niqab while testifying create a serious risk to trial fairness?
- Is there a way to accommodate both rights and avoid the conflict between them, and
- If no accommodation is available, do the salutary effects of requiring the witness to remove the niqab outweigh the deleterious effects of doing so?
Soharwardy said the Supreme Court ruling is both “very Canadian” and “quite Islamic” in that it respects freedom of religion, as well as the right to fair trial.
“In Islam, a fair trial supersedes any other requirement of my faith,” he said. “Fairness of trial is the key. If that fairness is not achieved because of a niqab, it can be removed. If that fairness can be achieved with the niqab, the nbiqab should stay.”
Soharwardy says the ruling provides a modern template that should be followed by many Muslim countries.
“It puts the emphasis of fairness of trial, which very much lacks in Muslim countries,” he said. “In most Muslim countries there is no fair trial.
“It also recognizes the freedom of religion that if someone has not caused any hindrance in the fair trial, then you can practice your religion. And this is also lacking in many Muslim countries.”
Sultan Kaddoura, who runs Sultan Education Academy, says it “is very, very rare” for women within the mainstream Muslim community to wear a niqab.
“Once it’s understood by the majority, whether it’s within the Muslim or non-Muslim ranks, that this is not a religious obligation, then I think it will pave the way to understanding on both sides,” he said.
The niqab has been a controversial issue in recent years in Canada.
In 2007, Quebec’s chief electoral officer ruled that voters could wear the veil when casting a vote. Public outcry forced Marcel Blanchet to reverse his decision.
A similar situation played out federally when Canada’s chief electoral officer said voters could wear a niqab when voting, provided the person provided two pieces of identification and swore an oath. He stuck with his decision.
In 2011, Immigration Minister Jason Kenney changed citizenship rules to ban face coverings when taking an oath. Previously a woman wearing a niqab could show her face to a clerk or official to be identified.
Zaheera Tariq, national president of the Islamic Association of Canadian Women, says the decision to wear the veil likely stems from cultural, not religious, traditions.
“There is nothing in writing that says a woman has to wear the niqab,” she said. “Islam is a very flexible religion and nowhere do we find a reference that says you have to cover your face.”
However, she says women who chose to wear the niqab may not feel comfortable testifying in public without the face-covering veil. A compromise could see a woman’s identity validated privately by a judge or court official.
“Obviously they have to validate that this is the person who is testifying,” she said.
“If they want her in a separate place they can just validate her identity by asking her to take the niqab off.
“Once she’s done that and validated she put it back on and can go to the trial and testify.”
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