Canada: Woman wants to wear islamic garbage bag in court

by 1389 on April 19, 2013

in 1389 (blog admin), burqa/niqab, Canada

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Published on Apr 18, 2013 SDAMatt2a

My sincerely held religious beliefs are to kick lawyers in the gonads and to force feed pork down mohammadan throats. Accommodate me!
She is the most famous woman Toronto has never seen.

She is the woman behind a veil, still fighting to keep her face covered when she testifies against two male relatives she has accused of sexually assaulting her when she was a child.

Almost five years later, the Muslim complainant known only as “N.S.” is back to where she started, back in the same courthouse before the same judge who determined in 2008 that she must remove her niqab because her religious belief was “not that strong.”

After battling that order all the way up to the highest court of the land, she comes back to Justice Norris Weisman armed with last December’s landmark decision by the Supreme Court that requires him to conduct a four-part test before deciding if she can wear her veil while testifying at the men’s preliminary inquiry: How sincere is her religious belief that a niqab is necessary? Does wearing a veil pose a “serious risk” to trial fairness? Is there a way of accommodating her beliefs in another way? And if not, how can he best balance the two competing rights?

In his closing submission, defence lawyer Douglas Usher argued that the judge got it right the first time and N.S. should remove her face-covering veil when she testifies against his client. He contended that her religious conviction about the niqab can’t run that deeply when she readily admits to many occasions when she takes it off: While driving — which she now does for a living — and when she’s at passport control or customs. She has taken it off when suffering morning sickness and for her driver’s licence photo.

Rather than a strict religious edict, the lawyer said that wearing the veil offers her religious “comfort.” But wanting to feel more comfortable is not a compelling enough reason to undermine a 400-year common law right to face your accuser.

“It’s not an issue of comfort,” Usher argued. “Many people would feel it uncomfortable to testify in court about anything and especially about matters of this nature.”

Since she is the sole witness against the men, assessing her credibility is key, he said, and it can’t be done without being able to judge her demeanour. With such a serious risk to trial fairness, he urged the judge to once again tell her to remove the veil while in the witness box.

“The niqab should stay on,” countered David Butt, lawyer for N.S..

He insisted the 37-year-old woman is a “straight up gal” and her testimony during the voir dire Monday showed that her religious belief is a deep and sincere one. And ironically, she clearly demonstrated that, he argued, even when you couldn’t see her face to judge if she was telling the truth.

There are other, better ways to assess credibility than facial expressions, Butt said. “What does a veil take away? Not too much. What does the defence have left? A whole lot.”

The risk to a fair trial by a witness testifying behind a niqab is minimal, especially at the early, preliminary inquiry stage, Butt continued. But there’s a greater danger that forcing N.S. to remove her religious face-covering may discourage other, already-marginalized Muslim women from coming forward with allegations of sexual assault.

“How many other complainants,” he asked, “have had to go through five years of litigation where her sincerely held religious beliefs were put through the jurisprudential wringer?”

But the defence countered that it has been equally difficult for their clients — who have yet to have their first day in court since N.S. went to Toronto Police with her accusations in 2007.

The judge wondered whether testifying without a veil in another room via a closed-circuit TV set up couldn’t solve the problem. It was acceptable to Usher as long as he would see her clearly on the screen, but Butt said it wouldn’t address her concerns since the “sexualization of women by the male gaze isn’t diminished by the fact that they’re on TV.”

Whatever the judge decides, it’s a ruling that will be watched closely around the country. Weisman said he expects to release his decision before the preliminary inquiry is set to hear evidence April 29.

Canadian judge rules niqab not allowed in his courtroom

Published on Apr 24, 2013 by SDAMatt2a

A Muslim woman must remove her niqab before testifying against two men accused of sexually assaulting her three decades ago, an Ontario judge ruled Wednesday.

The decision by Justice Norris Weisman comes after years of legal wrangling, pitting the accused’s right to a fair trial against the complainant’s freedom of religion. The case went all the way to the Supreme Court, where a split decision effectively sent it back to the lower court.

While Judge Weisman wrestled with the implications of making the woman — who can be identified only as N.S. — choose between her religious convictions and her desire to seek justice, he ultimately gave greater weight to the potential negative consequences for the accused.

“On a broader societal level, should the niqab impede effective cross-examination of the complainant by the accused’s counsel, they will not be able to assess the witness’s demeanour and tailor the thrust and direction of their questions accordingly,” Judge Weisman noted in his ruling. “Wrongful convictions could ensue with resulting loss of public confidence in the justice system.”

Lawyer David Butt, who represents N.S., confirmed his client would appeal, saying the decision sets a poor precedent.

“It risks sending the message that people who have certain religious beliefs and practices are excluded from the justice system,” Mr. Butt said in an interview. “That’s the wrong message to send.”

Muslim Canadian Congress president Salma Siddiqui, meanwhile, said it was “about time” for such a milestone ruling.

“The fact is the niqab has created a lot of issues, and it’s not a religious requirement… There’s no need for it in Canada,” Ms. Siddiqui said, calling the decision “a great victory for freedom and liberty.”

The case dates back to the mid-1980s, when N.S., now 37, alleges the two accused sexually abused her over a five-year period, starting when she was just six years old. The preliminary hearing is scheduled to commence next week.

In coming to his decision, Judge Weisman accepted that the complainant’s wish to wear the niqab was based on a “sincere religious belief”; she had been wearing the garment for the past decade, he noted, in an effort to avoid creating a sexualized atmosphere around men who were not her relatives.

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