Niqab may be worn during testimony, court says

Ontario Court of Appeal recognizes importance of access to justice for niqab-wearing women.

Toronto (15 October 2010) – The decision by the Ontario Court of Appeal (in the case of R. v. N.S.) sends a strong signal that sexual assault complainants will be permitted to wear their niqabs while testifying, subject to limited exceptions and the strictures of the complainant's religious beliefs, according to the Women's Legal Education and Action Fund (LEAF).

"This is a significant decision affirming the importance of fair trials and access to justice for Muslim women and all sexual assault complainants" notes LEAF director of litigation, Joanna Birenbaum.

The judgment specifically recognizes the "powerful" nature of the complainant's rights to wear her niqab while testifying and the unique "hardships" and "particularly vulnerable position" suffered by women who report sexual assault.

The Court also recognizes that Muslims are a "minority that many believe is unfairly maligned and stereotyped in contemporary Canada" and that a failure to adequately consider the complainant's rights could "legitimize that negative stereotyping."

"It is also important that the court confirmed the unreliability of demeanour evidence in general and in the specific circumstance of sexual assault," says LEAF co-counsel Susan Chapman. "The court went so far as to hold that allowing the complainant to wear her niqab could advance the truth seeking function of the criminal trial".

The court noted that a complainant who normally wears the niqab and is required to unveil cannot be expected to "be herself" on the stand.

The court held that the ultimate decision of whether to permit a witness to testify wearing a niqab must be determined on a case by case basis. A bald assertion of a right to demeanour evidence is unlikely ever to be sufficient, particularly at the preliminary inquiry stage.

LEAF asked the court to consider the demand that a sexual assault victim remove her niqab in the context of the long history of sexual assault complainants being harassed, re-victimized, humiliated and intimidated, especially at the preliminary inquiry. Such tactics have long been used to shut down prosecutions or prevent women from reporting sexual assault in the first place.

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