The Supreme Court of Canada [official website] ruled [judgment] Thursday that trial court judges may determine on a case-by-case basis whether a Muslim woman should be required to remove her niqab [BBC backgrounder] while testifying in court. The split-decision upholds the ruling [JURIST report] of the Court of Appeal for Ontario [official website]. The Supreme Court sought to strike a balance between an individual's right to freedom of religion with the right to a fair trial by permitting a jury to evaluate a witness' creditability under questioning. The court gave a variety of factors to be weighed by a trial judge:
The judge should consider the importance of the religious practice to the witness, the degree of state interference with that practice, and the actual situation in the courtroom. ... The judge should also consider broader societal harms, such as discouraging niqab-wearing women from reporting offences and participating in the justice system, ... [and] the salutary effects of requiring the witness to remove the niqab. ... When assessing potential harm to the accused's fair trial interest, the judge should consider whether the witness's evidence is peripheral or central to the case, the extent to which effective cross-examination and credibility assessment of the witness are central to the case, and the nature of the proceedings. Where the liberty of the accused is at stake, the witness's evidence central and her credibility vital, the possibility of a wrongful conviction must weigh heavily in the balance.The trial began in 2007 after the woman told police that her uncle and cousin had repeatedly sexually assaulted her when she was between the ages of six and ten years old. The trial court required the victim to remove her veil when testifying against her uncle and cousin.
The wearing of traditional religious clothing in court rooms and other public places has been highly contested in the United States [JURIST report] and around the world. In September the Swiss Parliament [official website, in french] voted against [JURIST report] a bill which would ban burqas [JURIST news archive] and other face coverings in public places. In January the Netherlands announced that a ban on burqas would go forward [JURIST report] later this year. Proponents of the Netherlands ban said the purpose was to stop people from being able to commit crimes and remain undetected by concealing their identities and covering their faces. Belgium officially banned [JURIST report] burqas in July 2011. France's ban on burqas took effect [JURIST report] in April 2011. Some commentators have suggested that the rationales behind the European burqa bans are weak [JURIST op-ed] and that the true purpose of the bills is societal discomfort.