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Judges, lawyers clash over right to testify with face covered

A Muslim woman wearing the niqab (veil which covers the body and leaves only a small strip for the eyes) participates in a meeting with Imam Ali El Moujahed on May 18, 2010 in Montreuil, outside Paris.

FRED DUFOUR/AFP/Getty Images

There was no mistaking the impatience in Supreme Court of Canada Justice Morris Fish's voice when he demanded the name of a single lawyer who would willingly cross-examine a witness whose face was concealed by a veil.

"Some blind lawyers that I know," responded David Butt, counsel to the sexual assault complainant seeking to testify from behind an Islamic niqab.

"Well, how about seeing lawyers?" Judge Fish insisted. "Your response quite explicitly and dramatically answers the question."

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It was that kind of day at the landmark hearing, where the court must determine whether religious ritual and observance can trump the right of an accused to a fair trial. Judges clashed repeatedly with lawyers who sought to rank one right ahead of the other – particularly Mr. Butt.

The judges questioned not only the fairness of allowing the defendant, N.S., to hide her facial expressions during cross-examination, but whether two diametrically opposed rights can ever be reconciled.

Expressing exasperation at the task facing the court, Chief Justice Beverley McLachlin said: "Do you wear half a veil? Do you put up a screen? Its very hard to reconcile values that are in opposition. ... I took some philosophy [training]and you learn that there is no way to accurately measure conflicting values."

It was far from the first time that the Supreme Court has wrestled with religious protections, but rarely has a case spawned such a violent clash of principles.

N.S., who sat in the front row of the courtroom Thursday taking copious notes, is adamant about her religious convictions, while the right to a fair trial is held as near sacrosanct within the justice system.

To complicate things further, a third principle – the need to make the court system hospitable to rape complainants and members of visible minorities – looms no less large.

"This situation poses the biggest obstacle for any witness I can think of," observed Ontario counsel Elyse Nakelsky. "It is an allegation of a historical sexual assault; it may be a case of he said/she said; and her credibility is central to the case."

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The stakes are also immense for unforeseeable religious rights cases that will crop up in future, said Frank Addario, a lawyer for the Criminal Lawyers Association.

He said the courtroom is one place where well-meaning attempts to accommodate religious beliefs and customs cannot be permitted to take a back seat to the presumption of innocence.

He urged the court to turn away the complainant's request lest the court create the risk of a wrongful criminal conviction. "The answer should be a nice, crisp 'no,' " Mr. Addario said. "It doesn't make Canada a closed or unfriendly place."

Mr. Addario warned the judges that, if the Supreme Court allows witnesses to testify in a niqab, it will open the door to all manner of claims based on religious observances.

"The next claimant who asserts that his religion forbids him being tried by a female judge or a Christian judge will have to have his claim heard," he said.

Seeing a witness's facial reactions during testimony is critical at trial, said Douglas Usher, a lawyer for one of two men accused of raping the defendant several times when she was a young child. Mr. Usher said that a smirk, a smile or a furrowed brow can speak volumes to a skilled cross-examiner, opening up avenues of questioning that may fracture a lying witness's credibility in the eyes of a judge or jury.

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"I don't know how many times I have accosted witnesses by saying: 'Why are you smirking, sir? Is there something you find amusing?' " Mr. Usher said. "Something like that can decide a case. It can speak more eloquently than words."

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About the Author
Justice reporter

Born in Montreal, Aug. 3, 1954. BA (Journalism) Ryerson, 1979. Previously covered environment beat, Queen's Park. Toronto courts bureau from 1981-85. Justice beat from 1985 - present. More

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