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Veil or no veil?
Time for another poll.
Should she be required to remove the veil to testify or not?
Sorry, no middle ground in Wezil's court.
Should she be required to remove the veil to testify or not?
Sorry, no middle ground in Wezil's court.
TORONTO — A Toronto-area Muslim who alleges she was sexually assaulted by two men has won a round in her battle to testify in court while wearing a niqab, a veil that covers all of the face except the eyes.
In a keenly anticipated ruling addressing what appears to be the first case of its kind in Canada, Mr. Justice Frank Marrocco of Ontario Superior Court overturned a decision by provincial court Judge Norris Weisman.
Presiding over a preliminary inquiry for the two defendants, Judge Weisman last year concurred with their position that the woman should be required to testify with her face in full view, and he instructed her to remove her veil.
However, Judge Marrocco's ruling does not necessarily clear the way for the woman, a Canadian-born mother in her early 30s, to testify from behind her veil. Instead, he ordered that the preliminary inquiry - on hold since the issue surfaced - convene two hearings. One will be videotaped to determine whether the woman's testimony would be admissible as court evidence under those circumstances.
He also granted intervenor status to the Ontario Human Rights Commission, which backs the contention of the woman and her lawyer David Butt that she should be allowed to give evidence while veiled because the garment stems from a sincere, deeply felt religious conviction that lies at the core of Canada's Charter of Rights and Freedoms.
Pitted against that is the competing principle, articulated last month by Jack Pinkofsky, attorney for one of the two accused, that open testimony, including a complainant's appearance, is a pillar of a fair criminal justice system and should supersede religious beliefs.
That too is a core Charter principle, the preliminary hearing heard. "Seeing the demeanour of the witness is a matter of critical importance not only at the trial but also at the preliminary inquiry," Mr. Pinkovsky told Judge Weisman. "My cross-examination is determined by my assessment of the demeanour of the witness."
As well, the defence noted the woman has an Ontario driver's licence bearing her photograph, unveiled, which led Judge Weisman to conclude that her convictions about baring her face were perhaps not as strong as she made out.
But whether deployed for or against the woman's bid to stay veiled, Charter arguments have no place at a preliminary inquiry, Judge Marrocco ruled, alluding to a 1986 Supreme Court of Canada decision. Judge Weisman, he said, "had no jurisdiction to hear and determine whether a Charter right had been infringed."
Mr. Butt had hoped his client's right to stay veiled would be resolved by Judge Marrocco's ruling, which it was not.
Mr. Butt today said that while he was cautiously pleased with the outcome, the hearings ordered by Judge Marrocco to determine the admissibility of evidence given by a veiled witness have raised fresh questions that may be the basis of an appeal.
"Because of the complicated nature of the two hearings he has proposed, a procedure that would be very new and is something the judge has devised for this case in particular, we'll be looking at whether that should be reviewed by a higher court," Mr. Butt said.
The hearings would entail calling evidence about a woman's religious beliefs and practices, and about the impact a veil might or might not have in a criminal case of this nature.
Judge Marrocco agreed that, "We cannot have a group within our society which is invisible to the criminal justice system due to its religious beliefs."
Nor did he dispute that Judge Weisman has the jurisdiction to rule on the issue — providing it is first thoroughly examined.
Moreover, Judge Marrocco wrote, should Judge Weisman conclude the woman wore her veil for reasons other than genuine religious conviction, he could instruct her to remove it.
The problem, Judge Marrocco concluded, is that there was no such scrutiny.
And as a result, "the failure to explore the limits and exceptions of the applicant's professed religious belief may have resulted in the preliminary inquiry judge mischaracterizing the applicant's evidence as an assertion that wearing the veil was a matter of comfort (rather than religious belief)."
In Canada, the case is believed to be without precedent.
But something similar surfaced in New Zealand in 2005.
An Afghan-born defendant, Abdul Razamjoo, was charged with car-insurance fraud and the wife of a friend was called as a witness by the prosecution.
The wife, however, was reluctant to testify without wearing her head-to-toe burqa, which conceals the face entirely.
In the event a compromise was reached, to which Judge Marrocco referred in his ruling.
The New Zealand trial judge ordered the wife to give evidence with her face uncovered, but in such a way that only the judge, lawyers and court staff could see it.
For everybody else in the court, including the defendant, her face remained concealed.
In a keenly anticipated ruling addressing what appears to be the first case of its kind in Canada, Mr. Justice Frank Marrocco of Ontario Superior Court overturned a decision by provincial court Judge Norris Weisman.
Presiding over a preliminary inquiry for the two defendants, Judge Weisman last year concurred with their position that the woman should be required to testify with her face in full view, and he instructed her to remove her veil.
However, Judge Marrocco's ruling does not necessarily clear the way for the woman, a Canadian-born mother in her early 30s, to testify from behind her veil. Instead, he ordered that the preliminary inquiry - on hold since the issue surfaced - convene two hearings. One will be videotaped to determine whether the woman's testimony would be admissible as court evidence under those circumstances.
He also granted intervenor status to the Ontario Human Rights Commission, which backs the contention of the woman and her lawyer David Butt that she should be allowed to give evidence while veiled because the garment stems from a sincere, deeply felt religious conviction that lies at the core of Canada's Charter of Rights and Freedoms.
Pitted against that is the competing principle, articulated last month by Jack Pinkofsky, attorney for one of the two accused, that open testimony, including a complainant's appearance, is a pillar of a fair criminal justice system and should supersede religious beliefs.
That too is a core Charter principle, the preliminary hearing heard. "Seeing the demeanour of the witness is a matter of critical importance not only at the trial but also at the preliminary inquiry," Mr. Pinkovsky told Judge Weisman. "My cross-examination is determined by my assessment of the demeanour of the witness."
As well, the defence noted the woman has an Ontario driver's licence bearing her photograph, unveiled, which led Judge Weisman to conclude that her convictions about baring her face were perhaps not as strong as she made out.
But whether deployed for or against the woman's bid to stay veiled, Charter arguments have no place at a preliminary inquiry, Judge Marrocco ruled, alluding to a 1986 Supreme Court of Canada decision. Judge Weisman, he said, "had no jurisdiction to hear and determine whether a Charter right had been infringed."
Mr. Butt had hoped his client's right to stay veiled would be resolved by Judge Marrocco's ruling, which it was not.
Mr. Butt today said that while he was cautiously pleased with the outcome, the hearings ordered by Judge Marrocco to determine the admissibility of evidence given by a veiled witness have raised fresh questions that may be the basis of an appeal.
"Because of the complicated nature of the two hearings he has proposed, a procedure that would be very new and is something the judge has devised for this case in particular, we'll be looking at whether that should be reviewed by a higher court," Mr. Butt said.
The hearings would entail calling evidence about a woman's religious beliefs and practices, and about the impact a veil might or might not have in a criminal case of this nature.
Judge Marrocco agreed that, "We cannot have a group within our society which is invisible to the criminal justice system due to its religious beliefs."
Nor did he dispute that Judge Weisman has the jurisdiction to rule on the issue — providing it is first thoroughly examined.
Moreover, Judge Marrocco wrote, should Judge Weisman conclude the woman wore her veil for reasons other than genuine religious conviction, he could instruct her to remove it.
The problem, Judge Marrocco concluded, is that there was no such scrutiny.
And as a result, "the failure to explore the limits and exceptions of the applicant's professed religious belief may have resulted in the preliminary inquiry judge mischaracterizing the applicant's evidence as an assertion that wearing the veil was a matter of comfort (rather than religious belief)."
In Canada, the case is believed to be without precedent.
But something similar surfaced in New Zealand in 2005.
An Afghan-born defendant, Abdul Razamjoo, was charged with car-insurance fraud and the wife of a friend was called as a witness by the prosecution.
The wife, however, was reluctant to testify without wearing her head-to-toe burqa, which conceals the face entirely.
In the event a compromise was reached, to which Judge Marrocco referred in his ruling.
The New Zealand trial judge ordered the wife to give evidence with her face uncovered, but in such a way that only the judge, lawyers and court staff could see it.
For everybody else in the court, including the defendant, her face remained concealed.
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