Home CommentaryOpinions Right to a fair trial vs. freedom of religion

Right to a fair trial vs. freedom of religion

by Brian Hutchinson January 8, 2013
Right to a fair trial vs. freedom of religion

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On Thursday Dec. 20, 2012, the Supreme Court of Canada determined that Muslim women can be asked to remove their religious niqabs or veils to testify in court if deemed necessary by the judge. As a result, the controversial issue will continue to pop up in Canadian courtrooms and be handled on a case-by-case basis. In other words, there was no ruling at all. The decision seems all-encompassing and politically correct.

“The decision illustrates the tension and changes caused by the rapid evolution of contemporary society and by the growing presence in Canada of new cultures, religions, traditions and social practices,” said dissenting judges Louis LeBel and Marshall Rothstein.

Personally, I believe despite one’s religious faith, the niqab can be removed briefly while testifying because the alternative allows Muslim women the opportunity to mask other facets of communication. The court is a controlled environment and the reasoning behind my opinion is that religion is sacred for those practicing, but laws must be sanctified by all. The courtroom should not cater to individual needs; it has structure because that arrangement has been tested and proven to work.

In this particular case, a man is being accused of molesting a Muslim woman, and he’s demanded that the victim remove her veil while testifying against him. Needless to say, this has stirred up quite some controversy, leading to the ultimate decision from the Supreme Court. Two of Canada’s most important rights are in a head to head clash; the right to a fair trial, and freedom of religion. The Supreme Court judges seemed to struggle with the decision as well, the decision being split 4-2-1.

As Justice Louis LeBel suggests, a ban of the niqab in court during testimonies conveys “openness of the trial process” and “would also be consistent with the tradition that justice is public and open to all in our democratic society.”

However, conventionally, Supreme Court cases set precedents for other trials and outline boundaries in order to solve critical issues. Not only does this decision seem economically unsound (there will be an endless amount of appeals and resources will be exhausted trying to solve these issues case by case), but the ambiguous nature of this ‘equilibrium approach’ will be damaging in the court of law.

Our justice system allows one to take the stand and reveal information, but in doing so one must be open and willing to be analyzed thoroughly in the process. Facial expressions, tone and deliverance are important when interpreting the message given by a witness.

Justice Rosalie Abella, a supporter of Muslim women wearing the niqab in court, said she believes that there are other instances in which demeanour is difficult to assess, like for those with speech impediments or facial paralysis. She says, “witnesses who wear niqabs should not be treated differently.”

Although I respect her analogy, wearing the niqab is not the same. The impediments, regardless of their level of difficulty to assess, are analyzed nonetheless. If a woman wears the niqab it is impossible to measure facial expression. Furthermore, it is a religious choice, rather than a physiological reality.

For Muslim women, interpretation of their testimony should not be limited to their eyes and words behind the veil. Examining facial expressions during a testimony is an extremely important facet of our justice system, and although freedom of religion is one of the most important rights in our society, the right to a fair trial is a stronghold in Canadian society and should not be tampered with in any way.

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