Rest my case
Once more into the breech on the case of the Toronto woman who was ordered to drop her veil while testifying in sexual assault trial.
I have sent the decision -- which I have in PDF and so it's not postable here -- around to friends who work for the Crown, who are defence lawyers and who sit on the bench.
Every single one of them agrees (not for attribution) that Ontario Court Justice Norris Weisman's decision will probably not stand.
Here is one legal expert's position, drawn from an email which I have edited only to protect the sender's identity.
It is pretty much in synch with what I have heard from others:
On the one hand, although demeanour alone cannot be taken into account, the demeanour of a witness can be used in conjunction with the trier of fact's assessment of all the evidence and in the full context of the trial. This is especially the situation in sexual assault cases where the main issue is who is more credible: the Complainant or the Accused.
On the other hand, the complainant is asserting her freedom of religion charter rights to wear the niqab. In addition courts have said that witnesses (whether they are children or adults) can testify behind a screen or to wear a disguise where it is in the best interest of justice and that this does not offend an accused person's Charter right to a fair trial.
It seems that Justice Weisman would have had to consider two principles that have been laid down from the Supreme Court. The first is that where there are competing Charter rights, the judge must strike a balance between those competing rights. For example, in considering common law publication bans (as opposed to statutory bans) a judge must balance the Media's right to free expression against the accused's right to a fair trial.
The other principle is the freedom of religious expression. The Supreme Court has ruled that freedom of religion consists of the freedom to undertake practices and hold beliefs having a nexus with religion where the individual demonstrates they sincerely believe it, irrespective of whether a
particular practise or belief is require by official religious dogma. While a court is not qualified to rule on the validity or veracity of any given religious practice it is qualified to inquire into the sincerity of a claimant's belief, where sincerity is in fact an issue.
Essentially what this means for this case is that while wearing the niqab may not necessarily be required by official Islamic teachings, if it is demonstrated that she sincerely believes that it was required, then her freedom of religious expression rights were engaged. However, Justice
Weisman may have ruled that given that her photo is on her driver's licence that her belief was not sincerely held. In trying to strike a balance between the religious rights of the complainant and the fair trial rights of the accused, I assume that Justice Weisman ruled that since her belief may
not have been sincerely held the balance favoured the accused's fair trial rights.
Hope this clarifies some of the legal issues involved.
For the record, I'm not sure what I would have ruled in this case.
This case has to be a judge's worst nightmare.