Judicial Decisions on Niqab: How Far Is Too Far?

The views expressed are those of the author and do not necessarily reflect the views of ASPA as an organization.

By Sunday Olukoju
February 24, 2015

Introduction

The West generally, and Canada in particular, could be described as the epitome of freedom, acceptance and openness. There is a strong tradition of separation of power and the practice of the rule of law. In certain cases, the judiciary checks the excesses of the executive branch, and at other times, it could appear to be too powerful.

The case of a niqab is one good example that is currently raising dust. It started with a woman who wanted “to testify in court while wearing a niqab – a veil-type cloth that covers all of her face, except her eyes,” but vehemently opposed by the two accused “male relatives in a sexual assault case in Ontario.” This has become “a legal matter that pits religious rights against the right of defendants.”

According to the CBC News of Dec. 8, 2011, the case went to the Supreme Court of Canada because a “preliminary inquiry judge ordered that she remove her niqab before testifying, but an Ontario Superior Court judge later quashed that order.” In what appears to be a macabre dance, the “Ontario Court of Appeal subsequently overturned the Superior Court’s order, set up a legal test for determining if the woman can wear her niqab, and sent the matter back to the preliminary hearing judge.” While this issue was still ongoing, the Harper government, through Immigration Minister Kenney placed a ban on face coverings such as niqabs for people swearing their oath of citizenship, according to the CBC News of Dec. 12, 2011.

On Feb. 6, 2015, Justice Keith Boswell declared the policy to remove face covering before taking oath of citizenship unlawful. In a swift reaction to this ruling, the CBC News reported Feb. 12, 2015 that Prime Minister Harper promised to appeal the ruling on the basis that Canada is a society that is “transparent, open and where people are equal.”

Questions to Ponder

There are few questions to ponder over in moving this discussion forward:

• What was the original intention of the originators of the Charter of Rights and Freedom?
• How far is too far for judges to go?
• What kind of injury would this decision cause the newcomers, the original settlers and the country’s democratic principles?
• Is this issue solely based on religious reason, or on other reasons – like cultural, political or familial?
• Is the wearing of niqab against Canadian values of transparency, openness and equality?
• Would it impact the administration of justice negatively, as argued by defendants who claimed that niqab will obstruct the facial expressions of such people when undergoing cross-examination?

Issues to Address

The charter of rights and freedom should protect every citizen regardless of race, religion, ethnicity, gender, sexual orientation, beliefs systems and or state of health. However, some issues must be addressed:

1. Would the law be seen as fair to the accused if denied the privilege of seeing the facial expression and demeanor of the accuser wearing a niqab?
2. There is an opinion that banning the niqab in court could lead to fewer Muslim women reporting crime or agreeing to testify and that this would be a huge disservice to justice in Canada. Could this be the intention of this policy?
3. Frank Addario, a lawyer representing the Criminal Lawyers’ Association also said this “could lead to distasteful requests like requesting a male judge or a judge of a certain religion” to handle certain cases. Could this lead to confusion and mistrust in the administration of justice?
4. Given the number of complaints from MPs and citizenship court judges that it’s hard to tell whether people with their faces covered are actually reciting the oath of citizenship, can one easily dismiss this claim or concern?
5. Why should niqab-wearing women not enjoy religious freedom which is enshrined in the charter, so long as they are not harming someone by their actions”?
6. If it is mandatory that “all those taking the oath do so openly,” because it is a “deep principle that goes to the heart of our [Canadian] values,” why should some be exempted?

Conclusion

Prime Minister Harper identified some principles that are fundamental to democracy: transparency, openness and equality. Promising to appeal the lower court’s decision, Harper believes that most Canadians will see it as “offensive” that someone would hide their identity at the very moment where they are committing to join the Canadian family.” While the removal of niqab while taking the oath of citizenship could be seen as temporarily abandoning her Sunni Muslim, this also throws up the question of allegiance. Is one’s allegiance to one’s religion superior to one’s allegiance to Canada as a new citizen?

In settling for a middle ground, niqab-wearing women should be allowed to remove their face-covering veil during citizenship test and oath of citizenship in semi-private rooms with two or more female citizenship officials. However, this should not be the norm as the originators of the charter of rights and freedom would also want fairness, justice and equity promoted and defended.

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Author: Sunday Akin Olukoju, Ph.D. is the president of Canadian Center for Global Studies, a nonprofit organization and also teaches at Athabasca University in Alberta, Canada. Olukoju can be reached at [email protected].

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