Ontario Court of Appeal judges have disparaged a lower court decision to order a Muslim sexual assault complainant to remove her niqab before testifying in court.
The complainant listened quietly on Tuesday as the judges questioned the logic of rewriting the rules of testimony simply because some Muslim women wear veils.
"Why are we getting all bent out of shape about this?" asked Mr. Justice David Doherty. "This isn't about somebody coming into court saying: 'I need to wear a bag over my head because of my religious beliefs.'
"I remember that when I was a lawyer, I had nuns testify and nobody said we should go and make them change," Judge Doherty said. "And kids wear really baggy clothes now, don't they?"
At a preliminary inquiry last year, Provincial Court Judge Norris Weisman ordered the 32-year-old woman, known as N.S., to remove her niqab so that defence counsel could assess her claims to have been molested from 1982 to 1987. The woman resisted on the basis that her religion prevents her from exposing her face to non-family members.
Judge Weisman expressed skepticism about the sincerity of her beliefs, noting that her driver's licence included a photograph of her face.
But Judge Doherty and Mr. Justice Michael Moldaver were sharply critical of Judge Weisman on Tuesday for unfairly characterizing the woman's explanations, and for his having fixed on a single issue, the driver's licence, to reject her request to testify in a niqab.
Judge Moldaver said that the judge "jumped on" the driver's-licence issue and made it out to be far more revealing than it really was. "That's not fair," he said.
Judge Doherty and Judge Moldaver also criticized Judge Weisman for concluding that N.S. was casual about her religion simply because she said that she would be "more comfortable" wearing a niqab.
"That seemed to be a real mischaracterization of what she said," Judge Doherty remarked, noting that the phrase "more comfortable" does not necessarily denote that an individual is lackadaisical toward something. "I mean, I am more comfortable breathing than not breathing," he said.
Judge Moldaver said that it's easy for trial judges to ascertain whether an individual asserting her desire to testify from behind a veil is a fraudster seeking to avoid a face-to-face courtroom confrontation.
He also questioned the motives of some defendants who claim a right to see their accusers face-to-face. These defendants are probably well aware that their prosecution will end if a key witness refuses to testify, he said.
However, lawyers for the Criminal Lawyers Association and the Muslim Canadian Congress argued Tuesday that it is critical for lawyers to assess the facial reactions of a witness during cross-examination.
"I'm speaking for 1,100 criminal lawyers who think that facial expressions do convey important information," CLA lawyer Frank Addario said.
"They can cross-examine to their heart's content," Judge Moldaver said. "The only thing they are not going to see is one small aspect of her demeanour. Society should not be put in a position of losing evidence from critical witnesses because we don't quite get to see all of their demeanour."
Mr. Justice Robert Sharpe is also on the panel.