Today, my friend and colleague Rosie Dimanno weighed in.
As a Charter issue, the freedom of religion argument belongs in another venue, thus the appeal to Superior Court.
The Criminal Code was amended in 2005 for the specific purpose of making it easier – less distressing – for an alleged victim to testify against the accused in certain circumstances. These modifications were aimed primarily at children, permitting them to give evidence behind a screen or other shielding device, or from a different room, by closed circuit TV.
These accommodations are "presumed necessary" for witnesses younger than 18, but a judge can make the order in any case if convinced it's essential to obtain a full and candid account, where there's a high risk to the witness or a high level of fear.
Adult witnesses can be shielded in cases of a physical or mental disability, when they have been victims of criminal harassment, where a terrorism offence or the involvement of a criminal organization (i.e. Mafia) is alleged or any other circumstance where a judge determines a full and candid account would not otherwise be possible. Screens have been used in sexual assault trials.
Note that the shield accommodation is usually provided so the witness need not look at the accused. In most cases, except where identity is protected, the defendant can see the witness, if only on a monitor. Lawyers can see the witness. The judge can see the witness.
In the case that hit the headlines this week, the complainant doesn't want anybody to see her face, as an adherence of her Muslim faith. While the Qu'ran does not require adult women to cover their faces completely, many pious females do so, if not usually in Canada.
This woman, summoned to the stand by Weisman – but not under oath – said her objection was "very strong," the issue one of respect, modesty and honour. Further: "It's to conceal the beauty of a woman and ... we are in a courtroom full of men ..."
Weisman ruled against the niqab request after concluding the woman – who's worn a face veil for five years – was not as fiercely vigilant about the veil as originally indicated; that she had, for example, removed it for her driver's licence photo.
The judge was attempting a delicate balancing act between competing rights. His reasoning deftly averted the core issue by assessing piety. Yet, either this woman has the right to cover her face or she doesn't. How strongly she feels about it, whatever accommodations she's made in the past, shouldn't be a deciding factor.
We know how difficult it is for women to testify in sexual assault cases, hence the existing protections. We also know how much more challenging it is for women in certain patriarchal cultures to pursue rape charges, so often are they blamed for the crime – in some countries, brutally punished for their victimhood.
This might be Canada but those cultural realities exist here too, in some segments of the population. We should be making it easier, not harder, for these victims of sexual assault to seek justice. Allowing women to hang on to their niqab in court strikes me as a small and compassionate concession.
Rosie is in favour of allowing the woman to remain veiled while I'm leaning in the opposite direction.
Funny thing is, if you knew Rosie's and my political proclivities, you would expect it to be the other way around.
But then, Rosie has sat in far many more courtrooms than I have, observing all sorts of horrible crimes against women, and seeing how hard it is for at least some of these victims to face their attackers.
Maybe I am too detached, too adherent to the traditions of the justice system, while unforgiving and rejecting of any patriarchal/religious restrictions on women. Maybe, because I live not far from Toronto's ''Little Kabul'' and a mosque, and see so many women burdened by these veils, I am just sickened.
Does that make me intolerant?
Yes. I hate to see women stumbling along, even in the most brutal heat. I have seen young girls, care-free and running around the playground, grow up and disappear into the long blackness.
For a different, more literary perspective, here's (the delightfully-named) Blind Man with a Pistol. (In fairness to his post however, I urge you to read the entire thing because he sets up his conclusions with all sorts of philosophical references.)
So what does this say about the Muslim woman prohibited from wearing her veil as she faces the man she has accused of raping her? It means heeding her explanation for preferring to be veiled:
It means situating this case and Canada’s hysterical obsession with the veil within our illegal occupation and colonization of Afghanistan and the ongoing war on Islam effected by the West in general. It means understanding that religion, too, is a birthday suit, and coincident with, not opposed to the law. It means listening to progressive Muslim women like Marjane Satrapi who do not wear the hijab nonetheless defend its use by her sisters. It means understanding that a vast majority of rape cases are not reported, and those that are have a sickeningly low conviction rate (5.7% in the United Kingdom). It means that the genesis of the phrase ‘facing your accuser in open court’ should be read democratically rather than literally. It does not mean removing the right of the accused to a fair trial and competent defence, but it does mean acknowledging that the system is failing and that removing the niqab from a rape victim is emphatically the wrong direction.
I am back to grappling with this one.