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Niqab ruling unfair

Jessica Squires

January 5, 2013

In mid-December, the Supreme Court of Canada ruled that, in some cases, women who wear niqab could be required to remove it in order to testify in court. At first glance, the ruling looks like a reasonable compromise; in fact, some Muslim groups have spoken in favour of the ruling.
But the context of the case must be taken into consideration. N.S., whose identity remains anonymous because her case involves sexual assault, wanted to wear her niqab when testifying against her assaulters, an uncle and a cousin. The case ended up in court.
Removing her religious freedom in this situation has the double effect of revealing her face in a way even more impactful—exactly because of the sexual assault charges. The ruling suggests a judge must determine if the niqab is being worn for true religious reasons, and must establish the wearer’s sincerity. In a system in which judges are often men, and in a case in which the assaulters are male, it is highly problematic to assess the choice to wear niqab in the sole context of sincerity of belief.
The court should have supported dissenting judge Rosalie Abella’s opinion (scroll to paragraphs 80-110), which holds that a niqab is only one of many situations in which factors other than demeanour must be taken into account in hearing a witness. Abella mentions translation, speech impediments or paralysis as examples.
Predictably, the court’s ruling exposes the hypocrisy of a system that denies Muslim men the right to face their accusers (in Security Certificate and anti-terrorism proceedings), but forces Muslim women to reveal their faces to people who assaulted her.
The ruling is also consistent with the kind of discrimination that has been described as a “fair compromise” in Quebec’s ill-fated Bill 94. In that case, it was claimed that a teacher’s ability to judge how well a woman could speak French was impeded by a niqab—suggesting that teachers universally must see their students’ mouths and faces in order to judge how they sound. Does this mean that blind people would be incapable of teaching French as a second language?
The reality is that Islamophobia has played a role in this ruling, no matter how much it is portrayed as a compromise, and no matter how many women practice their faith by wearing niqab.

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