A file photo of women wering the niqab in The Hague, Netherlands.Fred Ernst
The Supreme Court of Canada has agreed to hear the case of a woman who wanted to wear a niqab while testifying.
The woman, known as N.S., was to testify against two relatives she accuses of sexually assaulting her.
She wanted to wear her niqab while in the witness box, but the two men argued it violated their right to face their accuser in court.
The case went to the Court of Appeal for Ontario, which ruled witnesses who wear the face-covering veil must remove it to testify, but only if wearing it truly jeopardizes the accused person's right to a fair trial.
The issue of a woman's constitutional right to express her religious beliefs in court, and the right of the accused to face their accuser, must be decided on a case-by-case basis, the court added.
Nathalie Des Rosiers, general counsel for Canadian Civil Liberties Association, said the appeal court decision effectively means women will be forced to testify without the niqab only in extreme cases.
The Appeal Court, in its decision, recognized the challenge facing judges as they encounter witnesses wearing the niqab.
"There is no getting around the reality that in some cases, particularly those involving trial by jury where a witness's credibility is central to the outcome, a judge will have a difficult decision to make," the unanimous decision of the three-judge panel reads.
"If, in the specific circumstances, the accused's fair trial right can be honoured only by requiring the witness to remove the niqab, the niqab must be removed if the witness is to testify."
Each case, however, must "turn on its own facts" and the judge must listen to the concerns of the witness regarding her religious beliefs, the court said.
"If a witness establishes that wearing her niqab is a legitimate exercise of her religious freedoms, then the onus moves to the accused to show why the exercise of this constitutionally protected right would compromise his constitutionally protected right to make full answer and defence."
An objection to a witness wearing her niqab in a preliminary inquiry - at which there is no jury - would likely fail, the court added.
The appeal court sent the case back to the preliminary inquiry judge, and ordered the judge to let N.S. make arguments about her religious beliefs, but she took the case to the Supreme Court of Canada.
The Supreme Court agreed Thursday to hear the woman's appeal and ordered Ontario's Attorney-General to pay her lawyer's fees.
N.S. has accused her cousin and uncle of repeatedly sexually abusing her as a child.
During arguments before the appeal court last June a lawyer for one of the defendants said N.S. has not said she refuses to testify without her face covered, just that she would feel more comfortable wearing the niqab.