Women's group backs niqabs worn in Ontario Court of Appeals

Toronto - The Women's Legal Education and Action Fund (LEAF) will intervene on June 8 and 9 in the Ontario Court of Appeal case of R. v. N.S. The case deals with a Muslim woman who was ordered to remove her niqab to testify against two family members.

N.S. has asked the Court of Appeal to affirm her right to wear the niqab in Court. LEAF is arguing on her behalf that she is entitled to equal access to justice. "Women who have been sexually assaulted should not be shut out of the justice system just because they wear the niqab" says LEAF counsel, Susan Chapman. "The first question people should ask is not "can N.S. wear the niqab," but "why are the accused demanding the niqab be removed?" Chapman also said that there is a long history of victims of sexual assault being humiliated, degraded and re-victimized as they take the stand in an effort to get women to drop sexual assault charges or not bring them up to begin with. Women who have been a victim in sexual assault cases are treated in a manner that no other category of witness is subjected to. These victims are subjected to discriminatory scrutiny and abuses as they take the stand according to Chapman. The request to remove the niqab should be seen as a context of discriminatory treatment of women who report sexual assault, in effect "ordering this woman to remove her niqab is literally to strip her of her deeply personal religious clothing in open court, while she describes the intimate details of sexual abuse." Chapman contends that if women are forced to remove their religious garments in a court of law they may not report cases of sexual assault. She adds that the message would be that there women can be abused with impunity and that is not acceptable. "Although we are used to seeing people's faces in Court, it has been demonstrated that even those most highly trained, like judges, lawyers, the FBI and CIA, do no better than chance in detecting a lie based on facial expressions" says LEAF co-counsel and Legal Director Joanna Birenbaum in a press release. "The purpose of cross-examination in the criminal trial is to discover the truth. Judgments based on facial expressions have overwhelmingly undermined this important truth seeking function. Particularly in cross-racial and sexual assault contexts, this kind of evidence is consistently prejudicial. Stereotypes and discriminatory assumptions about who the witness is, or how the witness ought to behave, deeply influence judgments of credibility. Put simply, the accused in this case have no "right" to discriminatory evidence." In Canada women wearing the niqab has been a topic of debate recently. The number of women that wear the religious garment in Canada is small. Those who do however have faced a change in the political climate since the attacks in the United States on September 11, 2001. While Islamophobia has been recognized by the Ontario Human Rights Commission as a form of racism the wearing of the niqab is perceived as extremist and has been a "clash of the cultures." "All of the discussion has been about the impact of the niqab on the accused" says Birenbaum. "But the disadvantage at trial will be experienced by the niqab-wearing witness. In the current political climate, how will the evidence of a niqab-wearing witness be received? In a climate where veiled Muslim women are feared and mistrusted, a Muslim woman who covers her face in Court must overcome prejudices that she is hiding something and cannot be believed."