Canada Supreme Court

Canadian Court Rules on Niqab in Trials

They call them the “December dilemmas:” that time of year when religious expression appears most visually in the forefront, when kids ask difficult questions, when patience is tested by an ill-placed “Merry Christmas.” Nativity scenes appear in public spaces and schoolchildren sing Christmas carols at assemblies. This is when the public eye is drawn to the tension between religion and government.

But this tension is purposeful, the distinction intentional. As people of faith, we recognize the need for spirituality in everyday life and even in providing guidance for difficult public decisions. But as a religious minority, we remember the need for religious pluralism and a clear separation to guard against discrimination. We struggle with this balance constantly, forced to make tough choices in moral dilemmas.

This tension came to the Canadian Supreme Court recently in a case involving a Muslim woman defending her right to wear niqab (veil) while testifying in court. The core issue at stake here is a conflict of rights: on the one hand, the right to religious expression and on the other, the right to a fair trial (in this case, the right to confront one’s accuser).

The decision is tough. Whose rights do we curtail and at what cost? To limit a woman’s rights to wear niqab opens a pandora’s box of religious freedom challenges, possibly opening the door to all sorts of infringements on personal rights. On the other hand, to allow this right to remain unimpeded threatens the fundamental right to a fair trial. Can we accommodate both rights or must they remain in direct conflict?

In the end, the Court handed down a narrow decision, which did not rule directly on the case at hand but instead presented a test for judges to use in similar situations that arise in their courts:

“A witness who for sincere religious reasons wishes to wear the niqab while testifying in a criminal proceeding will be required to remove it if (a) this is necessary to prevent a serious risk to the fairness of the trial, because reasonably available alternative measures will not prevent the risk; and (b) the salutary effects of requiring her to remove the niqab outweigh the deleterious effects of doing so…..” Religion Clause

The Court tried to institutionalize a method of weighing this tension. What do you think of their solution? Does it cut too far into one right or the other? Is its use plausible? Please post your thoughts below!

Image courtesy of The Canadian Press

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Raechel Banks

About Raechel Banks

Raechel Banks is an Eisendrath Legislative Assistant. She grew up in Dallas, TX, as a member of Temple Emanu-El. She recently graduated from Brandeis University.

One Response to “Canadian Court Rules on Niqab in Trials”

  1. In order for someone to be identified as a victim or perpetrator of a crime it may be necessary to see his or her face. In that case the governing laws of a particular country, especially the U.S., trumps individual privilege.

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