TORONTO (RNS) Ontario’s highest court has ruled that female witnesses may testify in court while wearing a face-covering burqa or niqab, but such decisions will be made on a case-by-case basis by the presiding judge.
In a 3-0 ruling released Wednesday (Oct. 13), the Ontario Court of Appeal ruled that witnesses’ right to freedom of religion must be balanced with the right of the accused to a fair trial and the right to face their accuser.
The court effectively overturned a lower court’s order that required a Muslim woman to remove her niqab while testifying at the trial of two male relatives accused of sexually assaulting her.
Almost two years ago, a judge presiding at the preliminary hearing of two men ordered the witness—identified only as “N.S.”—to remove her niqab while testifying. The judge found the witness’s assertion that she wears the veil for religious reasons “not that strong” and subject to exceptions. The judge also noted that N.S. had been photographed for her driver’s license without her veil.
The hearing was adjourned while the veil issue was appealed.
The high court said the woman should have been allowed to explain why her religious beliefs compel her to wear the niqab and to demonstrate the sincerity of those beliefs.
But the court agreed that the accused’s rights could be compromised if the woman’s facial expressions and demeanor could not be scrutinized while she gave evidence.
“Denying the jury full access to that witness’s demeanor could be seen as detracting from the accused’s right to trial by jury,” the court said. At the same time, “it should not surprise anyone that N.S., when faced with this daunting task, seeks the strength and solace of her religious beliefs and practices.”
The court stressed that requests to have witnesses remove their veils must be considered on a case-by-case basis because the subject does not lend itself to any clearly defined rules.