In ALG Blog

The vexing question of whether to accommodate the religious beliefs of witnesses will not go away. This week a woman who seeks to testify while wearing her niqab was back in court. For the fifth time, she argued she has the right to accuse two men of sexual assault while wearing a niqab. The defendants resisted, citing their right to see the face and “demeanour” of their accuser. The judge ordered the witness to remover her veil.

He was implementing a decision of the Supreme Court which ordered judges to balance religious freedom against the danger of wrongful convictions. As I have argued elsewhere there are good arguments on both sides.

One aspect of the problem is that allowing witnesses to remodel the courtroom to fit their beliefs is the slipperiest of slippery slopes. If we protect one person’s religious beliefs that reflect her personal modesty, how could we refuse the next witness whose beliefs reflect their personal bigotry? If an individual believes it is a sin to be questioned, prosecuted or judged by a woman or a gay man should we accommodate them? Most would say no, but why? If we protect one belief under the Charter why not the other? Are the courts going to pick and choose which beliefs are reasonable and which are distasteful?

The accused does not have the luxury of tailoring his experience in court to suit his religious beliefs. If he said his participation in his trial was conditional on having his beliefs accommodated, most people would shrug and carry on. Why should we be more accommodating of the witness who (unlike the accused) has some control over her level of participation in this system? Why not accommodate everyone to increase their comfort in the courtroom?

N.S. removes her veil when she obtains her drivers’ licence, crosses the border or is pulled over for speeding. Would we not be better served by a rule that says a secular court system should enjoy equal treatment?

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