Fair trial may require removal of niqab...or maybe not

This is a niqab. Devout Muslim wear them so that no man (except a close family member) may see their face and hair.

In Toronto, a 32-year-old Muslim woman has accused her uncle and cousin of sexual assaults (plural intended). If her story is to be believed, the men have seen considerably more than her face and hair. Yet at the trial, the woman insists that the Canadian Charter of Rights protects her "right" to wear the niqab while giving testimony.

Lawyers for the accused say that the court should be able to judge the demeanor of the witness, thus the niqab should be removed. So the trial judge has referred the issue to the Ontario Court of Appeal, which today came down firmly astride the fence, telling the trial judge that he must conduct a preliminary inquiry as to why the complainant's religious beliefs necessitate her wearing the niqab.

But, the court said “If, in the specific circumstances, the accused’s fair trial right can be honoured only by requiring the witness to remove the niqab, the niqab must be removed if the witness is to testify.”

However, the judgment continues, trial judges must respect witnesses' religious rights by allowing them to testify about their religious beliefs and compelling them to remove a niqab in as few cases as possible.

The Court said that trial judges must search for a sensitive compromise that will respect the complainant's religious needs while, at the same time, allowing the defence to assess her demeanor during testimony. A good compromise, lawyers say, pleases no-one. And sure enough, the Court of Appeal suggests a good one.

[A compromise] may include having as few people in the courtroom as possible, and ensuring that most or all of them are female, it said. “Those measures might also include, where constitutionally permissible, an order that a witness be cross-examined by female counsel...If necessary, the court could be closed to all male persons other than the accused and his counsel.”

The learned judges did not comment on the possible infringement -- if their "for instance" were to be followed -- of the accused's right to counsel of his choice (male or female), and the legal presumption that a trial should be held in public, with the courtroom open to all, not just males or females.

For a more complete account of a bit of judicial logic remarkable for its tortuousness and political correctness, see today's report by Kirk Makin in the Globe and Mail.

Let us not forget Dickens' dictum: the law is a ass. But must it bray so loudly?

Footnote: The Toronto Sun summarized the story thus: "The Ontario Court of Appeal has refused to make a blanket decision [sic] as to whether sexual assault complainants should be allowed to wear their veils in a witness box." Brilliant! ROTFL!