Wednesday 1 May 2013


Wearing  a  niqab  as  a  witness  at  a  trial


The paragraphs that have white backgrounds are merely an anomaly in the printing of this article.


A niqab is a cloth veil (usually black or grey) that some Muslim women wear to cover their faces other than their eyes when they are in public. Its purpose is so that men do not gaze at their faces. These women generally  cover the rest of their bodies also with the same material and colour for the same purpose. When the face and body are covered at the same time, it is called a hijab or simply a full-body dress.


As far as I am concerned, if Muslim women wish to cover their faces and bodies, it is their business but there has to be exceptions. I won’t go into them all but instead; I will deal with the issue as to whether or not they can wear a niqab in a court while they are giving evidence. But first, a brief background of the charges that the accused men in the case I am writing about are facing.


N.S. (the witness and complainant) alleges that when she was a young girl, she was repeatedly sexually assaulted by her uncle, the accused, M—l.S., and her cousin, the accused, M—d.S. In 1992, N.S. revealed the assaults to a teacher who spoke to N.S.’s parents. N.S.’s father did not want to proceed further so the police did not lay charges at that time. However, in 2007, the accused were ultimately charged with various sexual offences against N.S. in two informations (signed complaints) sworn by N.S. The offences allegedly occurred between 1982, when N.S. was six years old, and 1987 when she was 12 years old. In Canada, there is no statute of limitations on offences that are proceeded by way of indictment (felonies). It is not my intention to give an opinion as to the guilt or innocence of these accused as no evidence has been heard yet.

         

N.S. is a Muslim. She wears a full body dress or hijab and a veil or niqab, which covers her entire face except for her eyes. N.S. wears the hijab and niqab when she is in public or in the presence of males who are not close members of her family. N.S. had been wearing the hijab and niqab for about eight years.


On September 10, 2008, the two accused men elected to have their trial by judge and jury. For this reason, there first had to be a preliminary hearing in which the judge alone would decide if there was enough evidence against the accused to justify a full blown trial. At the outset of the preliminary inquiry, both accused sought an order requiring N.S. to remove the niqab covering her face when testifying at the preliminary inquiry.


There is a very valid reason for this request because body language is useful in determining if a witness is lying or telling the truth or even confused about a question being asked.


Facial expressions convey emotion and meaning to the person who is looking at you. Even the slightest change in the position of your eyebrows can change the entire meaning of your body language that is being displayed. Facial expressions are the primary means of conveying social information among humans.


When experiencing anger, the eyes narrow, the eyebrows lift up, forming the classic V-shape. The lips tighten while the face can be seen as prepared for combat. The reasons behind anger include hate, contempt and a desire to inflict hurt as a form of revenge.


If a witness is suffering from anguish, the face alters to crying or rhythmic sobbing, with arched eyebrows, slightly open mouth and turned down lips.


Expressions involving mouth movements is of some assistance in determining if a witness is faking emotions (like being happy, surprised, sad, confused angry) instead of the whole face. For example; when someone smiles naturally their whole face is involved: jaw/cheek movement, eyes and forehead push down. If a witness is lying under oath, the mouth may droop and the eyebrows may arch outwards in a non-aggressive expression.


Disgust is an emotion associated with things that are considered as offensive and undesirable. A witness may tighten her nostrils as if attempting to avoid contact from the accused person and it is an unconscious expression of disgust.


As you can see, a facial expression of a witness plays a very important part in a trial when the witness is giving testimony. If a judge and a jury cannot see the facial expressions of a witness giving testimony, it would be very hard for them to determine if the witness is being honest when relying only on the tone of voice of the witness. 


If for example, a woman who testifies that she was raped has a big smile on her face during her testimony; her accusation will be very suspect. 


In a New Zealand case, a judge said in his ruling; “Although effective cross-examination is generally the outcome of careful preparation and a thorough grasp of the case, the actual process is often partly instinctive. It involves an ongoing evaluation of how the witness is performing and, particularly what are sensitive areas from that witness’s point of view. Tiny signals, quite often in the form of, or involving, facial expressions are received and acted upon almost, sometimes completely, unconsciously by the cross-examiner. Cross-examining counsel do not have the luxury of being able to make judgments as to what to ask and how to ask it against an overview such as a judge enjoys at the conclusion of a case. A distinction needs to be drawn between the significance of demeanour in the context of such an overview and the significance of demeanour to counsel in what is, in many ways, a ‘heat of battle’ situation, in making what needs to be virtually instantaneous decisions in the course of conducting a cross-examination.”


And now I will take you to the N.S case as it was heard in the Ontario Court of Appeal in 2010. The issue was whether or not N.S had to remove her niqab when giving her testimony.


The Crown (prosecutor) argued that as the application raised Charter issues, the preliminary inquiry judge did not have any power to make the order requested, to wit; the removal of the niqab from N.S’s face. The judge however determined that he did have that jurisdiction and decided that he would informally question N.S. about her objection to removing the niqab before deciding whether she would be required to remove it before testifying. Crown counsel suggested that N.S. should have the opportunity to consult with counsel before being questioned. However, the judge elected to proceed immediately with the informal questioning. N.S. wore her niqab while being questioned by the judge. I have reduced some of what she said for simplicity. She said in part;


“My objection is very strong. It’s a respect issue, one of modesty and in Islam, we call it honour. It’s also about the religious reason is to not show your face to men that you are able to marry. It’s to conceal the beauty of a woman and we are in a courtroom full of men and one of the accused is not a direct family member. The other accused is a direct family member and I would feel a lot more comfortable if I didn’t have to reveal my face. Just considering the nature of the case and the nature of the allegations and I think my face is not going to show any signs of—it’s not going to help, it really won’t.” unquote


She says she will feel uncomfortable testifying in court without her niqab covering her face. “Hey, stupid woman. Many people feel uncomfortable testifying in court when their faces aren’t covered. Get a life.”


I will now comment on what she said about her religious reason for continuing to wear her niqab while testifying when she said in part;


It’s also about the religious reason [which] is to not show your face to men that you are able to marry.”


Her lawyer, David Butt said at a later date about his client not being permitted to testify while wearing her niqab; “It risks sending the message that people who have certain religious beliefs are excluded from the justice system.”  What utter gibberish.


Salma Siddiqi who is the president of the Muslim Canadian Congress said, “The fact that the niqab has created a lot of issues, it’s not a religious requirement.” 


Sociologist Mohammad A. Qadeer, professor emeritus at Queen's University, recently wrote in the Globe and Mail, “Concealment of the face is neither religiously necessary nor socially desirable.”


Dr. Yousuf al-Qaradawi, the Qatar-based Islamic scholar, stated in a sermon, “It is not obligatory for Muslim women to wear the niqab.” He went on to tell his congregation, “The majority of Muslim scholars and I do not support the niqab in which women cover their faces.”


Although the Qur'an stresses modesty, it does not specifically require women to keep their heads or faces covered. In fact, the Qu'ran never explicitly uses the term hijab in reference to body veiling in any context. That being so, the wearing of the niqab is not based on any religious dictum emanating from the Qur’an.


Coupling religiosity and piety to face coverings is a twentieth-century phenomenon created by the Wahabbis in Saudi Arabia. Some Islamic schools around the Westernized world (including Canada) are imposing their irrational cult of face coverings on Muslims in the western world. A veil over the face will close the doors to employment of these women in professions where face-to-face human interaction is absolutely essential. It would be inconceivable for a man or a woman in a face mask to be employed in Canada as a police officer, a physician, a nurse, a school teacher, an airline pilot, an armed forces commander, a judge, a lawyer, a bank clerk, or as an office receptionist. Wearing the niqab is demeaning to women and it keeps them close to home rather than exercising their rights to find suitable employment. And suppose she wears a niqab while driving and she has an accident. How can the officer speaking to her be sure that she is the same person who shows him the driver’s licence?


Frank Addario, (a lawyer) said it rather well when he raised this rhetorical question—“If we protect religious beliefs which reflect her personal modesty, how could we refuse the next witness whose views reflect personal bigotry?”


If we let the fools dictate how a trial is to be conducted, then we have to let the bigots and those of questionable beliefs based on custom only, dictate how trials are to be conducted. For example, if this woman is permitted to dictate to the court that she has the constitutional right to hide her face under her niqab because of her erroneous religious belief, then what is to prevent a homophobe from claiming that it is his constitutional right to refuse to serve as a member of a jury because his God told him that it is a sin to participate in a trial where the prosecutor is a gay person?  Will a member of the Ku Klux Klan have a constitutional right to demand that the judge trying him should be replaced because the judge is a black man? What about a sexist pig who files an objection to be tried in a court where the prosecutor is a woman? Just how far will this woman’s stupidity and that of her lawyer go on before reason trumps idiocy?


There is no doubt in my mind whatsoever that the reason why some Muslim women in Westernized countries wear body coverings is because their husbands demand it of them. Their husbands are so insecure in their own faith in their wives chastity that they don’t want their women to be seen in public as beautiful women because other men might entice the women to leave their husbands if their husbands are mean and cruel to them.  It is obviously a nasty custom that benefits the egos of the males in some backward-minded Muslim families where the males rule the females with an iron fist.


Society obviously will find it offensive if they see a witness wearing a niqab when testifying, because society has a strong interest in the visible administration of criminal justice in open courts where witnesses, lawyers, judges and the accused can be seen and identified by the public. A public accusation and a public response to that accusation in a court room that tests the truth of the accusation through the adversarial process; enhances public confidence in the administration of criminal justice. Viewed from this perspective, allowing N.S. to wear a niqab while she testifies could compromise public confidence both in the conduct of the criminal trial and in the eventual verdict and in justice itself.

         

A judge should rule that in all of the circumstances, and despite any resort to available modifications in the process, especially in jury cases, the appropriate instruction to the jury, the witness’s wearing of the niqab would significantly impair the accused’s ability to cross-examine that witness which would result in a denial of the accused’s right to make full answer and defence and subsequently his right to a fair trial.  It is for this reason that the judge should order any Muslim complainant who wishes to testify, to remove the niqab and if that person refuses, then the judge should dismiss the charge or charges against the accused if the only valid evidence is her’s alone. If a woman who is testifying as a witness wears a niqab and she is not the complainant and she refuses to remove her niqab, then her testimony should not be heard.


If a witness argues that wearing her niqab is a legitimate exercise of her so-called religious freedom, then the onus obviously 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. This is exactly what the lawyers representing the uncle and the cousin of this woman did. And that is why, after reviewing the evidence and facts of this case, the Court of Appeal ruled against the woman’s wishes.


Her lawyer then took the matter to the Supreme Court of Canada whose ruling was brief. With a ruling of 4 to 2 (the seventh one didn’t vote) the court ruled that the decisions should be left to the trial judges. The case then went back to the Provincial Court in Toronto and again the woman insisted on testifying while wearing her niqab.


The judge in that court, Judge Norris Weisman wrestled with the implications of making the woman choose between her so-called religious convictions and her desire to seek justice and in the end, he gave greater weight to the potential negative harm the accused men would face by being denied a fair trial.


Now her lawyer wants to appeal again.  As I see it, this matter would then go to the Superior court and perhaps to higher courts again.  This is not unlike a ping pong ball going from one end of the table to the next over and over again ad infinitum.  


Now is the time to stop all this nonsense and her blubbering and that of her lawyer over a non-issue.  If the taxpayers are paying for these appeals via Legal Aid, then Legal Aid should put an end to that freebee. If the woman and her husband are paying for it, I hope it bankrupts them. The higher courts should refuse to hear the appeals. If this happens, then the woman has only two choices—refuse to remove her niqab when testifying or give up her desire for justice for the alleged wrongdoing done to her by her uncle and her cousin.


If she insists that she will wear her niqab, then the judge should dismiss the charges against the men with prejudice. That means that the case cannot be re-opened.


Now I realize that if the charges against the two men are dismissed, then justice has not truly been done and the men (if they are really guilty of those horrible things that she they did to this woman when she was a child) will get off scot free.


In this case I have written about, the accused have certainly been denied a speedy trial as guaranteed by the Canadian Charter of Rights and that by itself is grounds for a dismissal of the charges against the two accused men.


If this silly woman is allowed to testify while her facial expressions are hidden from those who are entitled to see them, then it would set a precedent that would bring possible injustices to the two accused men and other accused persons whose protections against injustices would be thwarted.


And if she is forced to testify without her niqab covering her face, will Allah cause her head to explode? I think not.


Here is my message to this silly and stubborn woman. “If you are seeking justice for yourself or even your motive has a higher objective, then stop this silly nonsense and remove your face-covering and let justice prevail. If on the other hand, the purpose of your objection is to bring a change in how trials are to be conducted based on your erroneous belief that the Qu’ran dictates that you cannot remove your niqab when testifying, then withdraw your complaint against your relatives and go home.”


If all Muslim women who wear a niqab refuse to testify in court without their faces being covered, I realize that they probably won’t file complaints against the men who molested or raped them. If that happens, then they are denying themselves the justice they deserve and the molesters and rapists who molested them will go unpunished and further, they won’t be deterred from repeating their insidious crimes in the future against other victims.

If such women bring this about, then they have failed society because we all have an obligation to bring offenders who commit crimes to justice.


Justice is itself society’s custom of bringing about justice for all so it follows that any serious departure from it, under any circumstances by anyone, no matter how sincere they may be, will lead a reasonable person to suspect that justice really doesn’t exist at all for any of us.   

UPDATE:  In Toronto, Ontario, in November 2014,  two men walked into a jewelry story and stole half a million dollars in jewelry. Both were wearing burkas.  

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