// Order to take off niqab pits law against religion (Toronto/GTA)
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« on: Mar 03, 2009 08:17 AM »


Order to take off niqab pits law against religion  

TheStar.com - GTA - Order to take off niqab pits law against religion

Woman to appeal ruling forcing her to unveil face in sexual assault trial

February 02, 2009

Betsy Powell
COURTS BUREAU

A judge has ordered a Toronto woman to testify without her niqab at a sexual assault trial – raising the thorny issue of whether Muslim women should be allowed to appear as witnesses wearing a veil that covers everything but the eyes.

The issue is a collision of two rights, pitting religious freedom against the right of a defendant to face an accuser in open court.

The case could be precedent setting because it doesn't appear there is any Canadian case law addressing the question of Muslim women in the courtroom. In Canada, home to about 580,000 Muslims, the case will be closely watched, amid fears about Muslim women coming forward in criminal cases.

In October, Ontario Court Justice Norris Weisman reached his "admittedly difficult decision" to force the complainant to testify with her face bared after finding her "religious belief is not that strong ... and that it is, as she says, a matter of comfort," he wrote in his ruling.

Lawyer David Butt is representing the woman and next month in Superior Court will argue that the Oct. 16 ruling should be overturned.

"For complainants in sexual assault cases, courtroom testimony is extremely difficult and often traumatic," he said last week. "During such times of great anxiety the courts should respect religious rights and practices that bring comfort and sustenance, particularly when they do not undermine the fairness of the proceedings."

When the complainant indicated last fall she wanted to wear her veil while testifying at the preliminary hearing, defence counsel told the judge that assessing her demeanour was of "critical importance" when tailoring questioning.

Weisman asked the woman to explain her objections.

"It's a respect issue, one of modesty and one of ... in Islam, we call honour," she replied. "It's also about the religious reason is to not show your face to men that you are able to marry. ... I would feel a lot more comfortable if I didn't have to, you know, reveal my face."

The woman also said only her family sees her without the veil.

Butt, who was granted standing at the hearing last fall, argued the judge must consider the Charter which protects religious freedom when making his decision. Butt argued the accused can hear her voice and inflection, see the expression in her eyes and body language.

In his judgment, Weisman wrote "at the 11th hour we learned ... she has a driver's licence with her unveiled facial impression upon it." She told court she took comfort the picture was taken by a female and there was a screen between her and potential male onlookers.

But Weisman wrote the "driver's licence can be required to be produced by all sorts of males," such as police officers and border guards.

"In investigating just how important a belief this was, it came down to her candid admissions that it was a matter of her being `more comfortable' and to me that really is not strong enough to fetter the accused's rights to make full answer and defence," the judge added.

Thanks to a publication ban and the nature of the charges, the names of the complainant and the two accused cannot be published.

Debate about Muslim women and head coverings has surfaced in recent years over girls wearing the hijab to play sports and whether voters must show their faces.

While Justice Weisman was asked to rule at the outset of the preliminary hearing, which is now on hold, the matter was put over and arguments in Superior Court are now scheduled for March 2. Defence lawyer Hilary Dudding will appear on behalf of one of the accused men. She declined to comment.

A relative of the woman said it's distressing the judge has exceeded his "jurisdiction and ventured into the interpretation of religious laws concerning the veil, not to mention the fact that ... (she) has observed the veil for many years in accordance with her" beliefs.

"This is primarily an issue of protection the court offers to victims of sexual assault – especially those from minority communities, who experience the added stigma of bringing these deeply personal issues into open court."

Alia Hogben, executive director of the Canadian Council of Muslim Women, said, in court "the laws of the country should be acceptable," and although it is important that "sensitivity be shown ... showing the face is acceptable."

In the United Kingdom, a panel of judges drafted guidelines in 2007 that said Muslim women should be permitted to wear the niqab, as long as it does not interfere with the administration of justice, according to the Equal Treatment Advisory Committee of Britain's Judicial Studies Board. "Such decisions, however, should be made on a case-by-case basis," the committee said.

Forcing a woman to choose between taking part in a court case or removing her veil could affect her sense of dignity, exclude and marginalize her, the guidelines said.

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« Reply #1 on: Mar 03, 2009 08:34 AM »

Follow up to:

Madinat al-Muslimeen > Beyond City Life > Ummah News & Society Center > World News > Topic: Order to take off niqab pits law against religion


TheStar.com - GTA

http://www.thestar.com/article/581295

The Take: On niqab and the law

DAVE THOMPSON/AP FILE PHOTO

The niqab, a face veil that covers everything but a woman's eyes, has become an issue in voting during elections and in courtrooms.

Oh, the niqab – that veil that covers everything but a woman's eyes – how you are held up to be everything to everyone at all times.

February 03, 2009
Iain Marlow

Note: This article contains incorrect information from one of the sources indicating that Canadians who vote by mail are not required to show identification. In fact, according to Elections Canada, Canadians who wish to vote by mail must first register and their registration must be accompanied by a photocopy of proof of identity as prescribed by the Chief Electoral Officer.

Like the  hijab , its more liberal cousin, the  niqab  arouses controversy at every turn in modern democratic states – especially when it jars cherished institutions such as Parliament, the courts, or schools.

In Toronto, in a case currently before the courts, a judge has ordered a woman testifying in a sexual assault case to do so without her niqab.

She protested, saying it was an issue of modesty and comfort – of Islam.

But Ontario Court Justice Norris Weisman ruled that it was more an issue of comfort than religious freedom, and that she must show her face.

THE REALIST

Saira Zuberi
Toronto-based minority rights activist

"This is one of those contentious things, because most people don't actually believe it's a requirement and there are those who actually believe that they have to do it.

"It's like the case in the election (with voters having to unveil).

"It really ends up being a little bit of a tempest in a teacup. You've got this tiny percentage of people that it applies to; it's minuscule. You're talking about Muslim women voters who happen to also wear niqab who would actually refuse to identify themselves. This tiny percentage.

"And they're not actually contravening the law, because there are thousands of people who vote by mail, who are not required to show ID.

"It just ends up being a lightning rod for those people who get angry because, `Oh, we're making too many concessions for all these people ...' You know?

"I don't think it's a huge number of people who are asking for this."


THE PRAGMATIST

Shahina Siddiqui
President of the Islamic Social Services Association

"There's a law of necessity in Islam, where you can relax what your understanding of the requirements are." If there are reasons of security or law, exceptions can be made, "and that's why they (unveil) for driver's licence, for passports and for crossing borders."

"I've travelled with women who wear niqab and at airports they do remove it. And some will say, `Oh, can I do it in front of a woman attendant?' And some don't bother with that either ... It can be done, even in Muslim countries. When they're required to, they do it."

Since the case on trial was a sexual assault, "For her, it's her security blanket ... I would say the judge should take that into account. And I don't know if she's an immigrant or a new refugee ... As a social worker I always try to look at all the variables.

"I mean, it is a religious obligation, but in this case it's also an added question of how secure she feels. But generally speaking, exceptions can be made. The issue is, is this that case?"

THE ETHICIST

Alia Hogben
Executive director of the Canadian Council of Muslim Women

"It is not a religious requirement to cover your face. That's put very simply. Some women do this because they think it's more modest.

"It's about modesty for both women and men – don't flaunt yourself, dress modestly, etc.

"But the emphasis seems to have shifted, to focus on women rather than men. And a lot of women are interpreting it, or are having it interpreted for them, that modesty means covering yourself. That's a personal choice a Muslim woman makes. It is not a religious directive.

"The judge sounds like he carefully considered it all and felt that it was important that her face be seen in court.

"When there's been some sensitivity ... they have done (testimony) in other rooms, particularly for children, instead of having to face the whole court....

"If this woman is frightened ... then that's another question ... And that should be addressed, absolutely. But covering her face in an open court is not necessary."

OTHER CASES

In the U.K., one magistrate stormed out of a Manchester court when faced with a veiled defendant and another judge adjourned because he said he could not hear a veiled Muslim lawyer's muffled voice.

Soon after, in 2007, a judges' advisory panel said judges should use discretion, and could choose other options – such as a live link or clearing the public gallery – instead of forcing a woman to unveil.

In Canada, without any veiled Muslim woman contesting election regulations, the niqab became an issue in 2007 among politicians, election officials and the media.

It surfaced again briefly in the election of 2008, when Canada's chief electoral officer said a veiled voter would have to swear a special oath if she didn't remove her veil.

Your heart will not truly open until you understand Surah 21 : Verse 92  (Al-Anbiya: The Prophets)

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« Reply #2 on: Mar 03, 2009 08:48 AM »

Follow up to:

Madinat al-Muslimeen > Beyond City Life > Ummah News & Society Center > World News > Topic: The Take: On niqab and the law

Madinat al-Muslimeen > Beyond City Life > Ummah News & Society Center > World News > Topic: Order to take off niqab pits law against religion


TheStar.com - GTA

To allow niqab a small concession

http://www.thestar.com/article/581985

The niqab, a face veil that covers everything but a woman's eyes, has become an issue in voting during elections and in courtrooms.

February 04, 2009

Rosie DiManno

There is no absolute right, in Canadian law, for a defendant and a witness to look upon one another during trial or even a preliminary hearing.

Whether one of them is wearing a niqab – a full face veil that leaves only the eyes of a woman uncovered – seems never to have been addressed by courts in this country or considered within applicable legislation.

It is a provocative issue, engendering reactions more visceral and emotional than narrowly legal or sensible. As the Star's Betsy Powell reported this week, a Toronto sexual assault case is now headed for Superior Court after the preliminary hearing judge ruled against the alleged victim's petition to testify wearing a niqab.

The judge, Ontario Court Justice Norris Weisman, determined he had the jurisdictional authority to make that ruling under the Canada Evidence Act, because it involves the manner in which the woman is to give testimony, the fundamental right of a defendant to make "full answer and defence" and the "traditional right" of an accused to face the accuser. This last, however, is "not a basic tenet of our legal system,'' not enshrined in jurisprudence.

As a Charter issue, the freedom of religion argument belongs in another venue, thus the appeal to Superior Court.

The Criminal Code was amended in 2005 for the specific purpose of making it easier – less distressing – for an alleged victim to testify against the accused in certain circumstances. These modifications were aimed primarily at children, permitting them to give evidence behind a screen or other shielding device, or from a different room, by closed circuit TV.

These accommodations are "presumed necessary" for witnesses younger than 18, but a judge can make the order in any case if convinced it's essential to obtain a full and candid account, where there's a high risk to the witness or a high level of fear.

Adult witnesses can be shielded in cases of a physical or mental disability, when they have been victims of criminal harassment, where a terrorism offence or the involvement of a criminal organization (i.e. Mafia) is alleged or any other circumstance where a judge determines a full and candid account would not otherwise be possible. Screens have been used in sexual assault trials.

Note that the shield accommodation is usually provided so the witness need not look at the accused. In most cases, except where identity is protected, the defendant can see the witness, if only on a monitor. Lawyers can see the witness. The judge can see the witness.

In the case that hit the headlines this week, the complainant doesn't want anybody to see her face, as an adherence of her Muslim faith. While the Qu'ran does not require adult women to cover their faces completely, many pious females do so, if not usually in Canada.

This woman, summoned to the stand by Weisman – but not under oath – said her objection was "very strong," the issue one of respect, modesty and honour. Further: "It's to conceal the beauty of a woman and ... we are in a courtroom full of men ..."

Weisman ruled against the niqab request after concluding the woman – who's worn a face veil for five years – was not as fiercely vigilant about the veil as originally indicated; that she had, for example, removed it for her driver's licence photo.

The judge was attempting a delicate balancing act between competing rights. His reasoning deftly averted the core issue by assessing piety. Yet, either this woman has the right to cover her face or she doesn't. How strongly she feels about it, whatever accommodations she's made in the past, shouldn't be a deciding factor.

Lawyers for the two men accused claim they have the right to study the witness's face during cross-examination, to scrutinize her demeanour and tailor their questions accordingly.

But higher courts in recent years have increasingly cautioned judges and juries against placing undue emphasis on a witness's demeanour. Looks can be deceiving: Some honest witnesses come across as untrustworthy; some liars as polished and credible. The testimony is the evidence, not the person's outward appearance.

The law is a living thing. For all the weight of precedence, Criminal Code provisions continue to evolve.

We know how difficult it is for women to testify in sexual assault cases, hence the existing protections. We also know how much more challenging it is for women in certain patriarchal cultures to pursue rape charges, so often are they blamed for the crime – in some countries, brutally punished for their victimhood.

This might be Canada but those cultural realities exist here too, in some segments of the population. We should be making it easier, not harder, for these victims of sexual assault to seek justice. Allowing women to hang on to their niqab in court strikes me as a small and compassionate concession.

Rosie DiManno usually appears Monday, Wednesday, Friday and Saturday.

Your heart will not truly open until you understand Surah 21 : Verse 92  (Al-Anbiya: The Prophets)

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« Reply #3 on: Mar 03, 2009 04:14 PM »

as salaamu alaykum,

from what I remember from my limited study of fiqh, the scholars who say niqab is an obligation do give a few instances in which it is permissible to show the face, one of them being testimony in front of a qadi.  this is an instance in which it would be great if we had an authoritative fiqh council to refer to (to answer the questions, would this be a similar situation to that? in which case, would it be permissible for her to do so?  what should our community's response and actions be to such occurences? etc).

I also like this sisters response from the other thread on this article, pointing out the other issues that may be involved in the case:

THE PRAGMATIST

Shahina Siddiqui
President of the Islamic Social Services Association

"There's a law of necessity in Islam, where you can relax what your understanding of the requirements are." If there are reasons of security or law, exceptions can be made, "and that's why they (unveil) for driver's licence, for passports and for crossing borders."

"I've travelled with women who wear niqab and at airports they do remove it. And some will say, `Oh, can I do it in front of a woman attendant?' And some don't bother with that either ... It can be done, even in Muslim countries. When they're required to, they do it."

Since the case on trial was a sexual assault, "For her, it's her security blanket ... I would say the judge should take that into account. And I don't know if she's an immigrant or a new refugee ... As a social worker I always try to look at all the variables.

"I mean, it is a religious obligation, but in this case it's also an added question of how secure she feels. But generally speaking, exceptions can be made. The issue is, is this that case?"

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« Reply #4 on: Mar 03, 2009 04:25 PM »

as salaamu alaykum,

This really underscores the need we as a Muslim community in the west have for an authoritatitve fiqh/legal council, who can help shed light on these issues from a fiqhi perspective and guide our actions/response as a community.  From my limited study of fiqh, I believe that the scholars who say niqab is an obligation give a number of exceptions to its obligation in particular circumstances, one of them being at the time of testimony in front of a qadi.  Would this case take the same ruling because it is also a court of law?  Since it seems the sister herself does not consider it a strict obligation, would it be better for her to remove it in this instance (considering probable harms and benefits?)  I also think Sr. Shahina Siddiqui's comments from the other thread need to be considered as well, about the personal/psychological circumstances of the sister.

wAllahu a'lam,

wasalaam,
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« Reply #5 on: Mar 03, 2009 05:02 PM »

(Note - Tarek Fatah is the most destructive Canadian Muslim - he's only speaks to agitate the community and he spins everything that Muslims in Canada does into a Saudi / Wahabbi conspiracy - however the Canadian media has crowned him as the speaker of all Muslims)
 

There is no requirement in Islam to cover one's face -- the niqab is the epitome of male control over Muslim women
 
By Tarek Fatah,
Citizen Special
February 5, 2009

http://www.Canada.com/Life/Lifting+veil+niqab/1254516/story.html 

 
Much of the Muslim world has moved toward gender equality, but some still argue that covering a woman's face is an issue of faith.
Photograph by: Phil Noble, Reuters, Citizen Special


Barely a week goes by when my religion, Islam, does not face a fresh round of scrutiny. If it is not a suicide bomber blowing himself up in an Iraqi mosque screaming "Allah O Akbar," it is news that an imam in Malaysia has declared the practice of Yoga sinful. If it is not a Toronto imam defending suicide bombing on TVO, a Muslim woman writes a column in a Canadian daily, advocating the introduction of Shariah law in Canada.

But the one topic that rears its head in almost predictable cycles is the subject of a Muslim woman's supposed Islamic attire. Whether it is swimming pools or polling booths there is no escape from the repeated controversies surrounding the face mask, better known as the niqab, or the burqa.

The latest incarnation of the niqab controversy surfaced this week when a Toronto judge ordered a Muslim woman to take off her niqab when she testified in a case of sexual assault.

The woman invoked Islam as the reason why she wanted to give testimony while wearing a face mask. She told the judge, "It's a respect issue, one of modesty," adding Islam considers her niqab as her "honour."

Her explanations were rejected by the judge who determined that the woman's "religious belief" was not that strong and that in his opinion the woman was asking to wear the niqab as "a matter of comfort."

But all of these arguments are premised on the acceptance of the myth that a face mask for women is Islamic religious attire.

Humbug.

There is no requirement in Islam for Muslim women to cover their faces. The niqab is the epitome of male control over women. It is a product of Saudi Arabia and its distortion of Islam to suit its Wahabbi agenda, which is creeping into Canada.

If there is any doubt that the niqab is not required by Islam, take at look at the holiest place for Muslims -- the grand mosque in Mecca, the Ka'aba. For over 1,400 years Muslim men and women have prayed in what we believe is the House of God and for all these centuries women have been explicitly forbidden from covering their faces.

For the better part of the 20th century, Muslim reformists, from Egypt to India, campaigned against this terrible tribal custom imposed by Wahabbi Islam. My mother's generation threw off their burqas when Muslim countries gained their independence after the Second World War. Millions of women encouraged by their husbands, fathers and sons, shed this oppressive attire as the first step in embracing gender equality.

But while the rest of the world moves toward the goal of gender equality, right here, under our very noses, Islamists are pushing back the clock, convincing educated Muslim women they are sexual objects and a source of sin.

It will be difficult to pinpoint what went wrong, but most of Canada's growth in niqabi women can be traced to one development in 2004, when a radical Pakistani female scholar by the name of Farhat Hashmi came to Canada on a visitor's visa, to establish the Al-Huda Islamic Institute for women.

Maclean's magazine reported in July 2006 that she had "established a school where she lectures to mostly young, middle-class women from mainstream Muslim families, not only from across the country but also from the U.S. and as far away as Australia."

In October 2005, the Globe and Mail ran a story on Dr. Hashmi quoting a 20-year-old Muslim woman as saying, "I agree with Dr. Hashmi that women should stay at home and look after their families." This student was so impressed with Dr. Hashmi's sermons that she convinced 10 of her friends to enrol in the course that involved wearing the niqab, leaving the work force and embracing polygamy.

In the Globe piece, 18-year-old Sadaf Mahmood defended polygamy and the burqa saying: "There are more women than men in this world. Who will take care of these women? It is better for a man to do things legally by taking a second wife, rather than having an affair."

While the rest of Canada sleeps, the Islamist agenda, funded by the Saudis and inspired by the Iranians, continues to make its presence felt. The vast majority of Muslims look on in shock, unable to understand why this country would tolerate the oppression of women in the name of religion and multiculturalism.

The woman who was denied her burqa in court is a victim. She is merely a puppet in the hands of those who wish to keep women in their place. First she suffered the trauma of the alleged sexual assault, which was then compounded by the controversy about her niqab. She could have asked the judge to not let her face her alleged attackers, and that would have been a fair request.

But when she invoked Islam and said hiding her face would be an act of religiosity, she became a voice not for justice, but for those who wish to sneak Shariah law into our judicial system. This should be stopped.

Tarek Fatah is the author of Chasing a Mirage: The Tragic Illusion of an Islamic State.

Your heart will not truly open until you understand Surah 21 : Verse 92  (Al-Anbiya: The Prophets)

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« Reply #6 on: Mar 03, 2009 05:24 PM »


 TheStar.com - Ontario - Let witness wear veil, rights body to tell court
 
Judge turned down request by Muslim woman earlier in case

March 02, 2009
Betsy Powell
COURTS BUREAU

Ontario courts have a duty to accommodate religious beliefs and that means a woman who wants to testify while wearing her niqab – a veil covering all but her eyes – must be allowed to do so, the Ontario Human Rights Commission says.

It will seek to make that argument today in Ontario Superior Court after a lower court judge ordered the Toronto woman to testify without the veil, which she says she wears for religious reasons.

The commission, which is seeking leave to intervene, argues Mr. Justice Norris Weisman of the Ontario Court erred in law when he ordered the woman, the complainant in a sexual assault trial, to doff her veil.

The commission contends Weisman's ruling should be overturned since "the court had a duty to accommodate ... religious beliefs and failed, both procedurally and substantively, to do so," according to an affidavit filed with Superior Court and signed by Commissioner Barbara Hall.

The woman's identity and any evidence related to the case are protected by a publication ban.

The case, a collision of two rights, pits religious freedom against the right of a defendant to face an accused in open court. It's being watched closely across Canada, home to some 580,000 Muslims.

The woman's lawyer, David Butt, was scheduled to begin arguments today on why the Ontario Court Justice ruling should be overturned by a higher court. Weisman made his ruling at the outset of a preliminary hearing, which is now on hold.

When the complainant indicated last fall she wanted to wear her niqab while testifying, defence counsel told the judge that assessing her demeanour was of "critical importance" when tailoring questioning.

"It's a respect issue, one of modesty and one of ... in Islam we call honour," she replied when Weisman asked her why she wanted to wear the niqab.

After listening to her objections, Weisman found her "religious belief is not that strong."

It seems unlikely arguments directly relating to the veil will go ahead today because of the commission's request to intervene. It's also unclear whether the commission will be granted standing – a rare occurrence in a criminal case.

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« Reply #7 on: Mar 03, 2009 09:53 PM »

wsalam,

i thought to put all the articles on this issue in one thread. seems like a tough situation... as se7en mentioned because we have no ruling body or fiqh council it's really then the state making the decisions on what is islamic or not! very tricky situation especially as this girl was very wishy washy about whether she felt it was 'fard' or not...people make it such a big deal.. what difference does it make if she was covered or not, the judge mentioned nuances.. you would see that with niqab too. maybe she could show her face to the female jurors? i don't know...

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« Reply #8 on: Mar 04, 2009 04:03 PM »

There is a fiqh council, the Fiqh Council of North America (FCNA), that already exists - it's just the communities are so splintered that they can't/wouldn't even trust the FCNA for a simple thing as moon sighting, let alone these critical Islamic social issues.

FCNA web site  is: http://fiqhcouncil.org/Home/tabid/150/Default.aspx

Canadian law in all provinces except Quebec is based on the Common Law system (Quebec Law is based on Napoleonic code), so the ruling of the Judge in this case is simply based on his opinion as there is no legal precedence or case before this where the niqab was forbidden in Canadian Courts. In fact, this is not a rights issue - as the media is trying to put a spin on it. It is legally allowed since 2005, as Rosie DiManno pointed out for victims of these crimes.



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« Reply #9 on: Mar 04, 2009 04:15 PM »

Veil issue 'hijacked' sex assault trial


Defence threatens to have case tossed, citing delay as woman fights to wear niqab while testifying

http://www.thestar.com/News/GTA/article/595494

March 03, 2009
Betsy Powell
COURTS BUREAU

The issue of whether a Muslim woman can wear her niqab while testifying has "hijacked" the sexual assault trial of the two defendants, lawyers involved in the criminal proceedings argue.

Adam Weisberg, who represents one of the accused men, threatened to try to have the charges tossed because of unreasonable delay, and suggested the woman's request to wear the veil should be dismissed immediately.

The issue has landed in the lap of Ontario Superior Court Justice Frank Marrocco, who yesterday decided he will deal with the potentially precedent-setting matter on March 13.

Before agreeing to hear the matter next Friday, Marrocco waded through the history of the case, which began in June 2007 when Toronto police arrested the men and charged them with sexual assault.

Last September, during a preliminary hearing in the Ontario Court of Justice, the woman told Justice Norris Weisman she did not want to remove her niqab when testifying. Defence lawyers for the accused men objected, saying they would be unable to assess "her demeanour."

After hearing her explanation, Weisman ruled he did not find her "religious belief ... that strong" and ordered her to remove the veil when she's in the witness box.

The woman retained a lawyer who filed an application seeking to overturn Weisman's decision. Her identity and any evidence in the case are subject to a publication ban.

Before yesterday's arguments, the Ontario Human Rights Commission took the rare step of trying to intervene in a criminal proceeding, arguing the lower court ruling was "inconsistent" with the law with respect to accommodating religious beliefs.

 

Hanging over the preliminary hearing, set to resume Monday, is the spectre of the charges being dismissed if a judge decides there was unreasonable delay.

The Crown is taking no position on the issue of the niqab, said prosecutor Laurie Gonet. But Gonet echoed Weisberg's concerns and urged Marrocco to resolve the issue quickly.

Morocco will hear arguments on March 13 on three points: whether an Ontario Court justice has the jurisdiction to consider such an issue; whether to grant the Ontario Human Rights Commission standing in the matter; the issue of whether the woman can wear her niqab.

Your heart will not truly open until you understand Surah 21 : Verse 92  (Al-Anbiya: The Prophets)

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« Reply #10 on: Mar 04, 2009 10:02 PM »

Asalamualaikum wrt wb,


All praise be to Allah.


Jazakumallahu khairan brother UBAB for your posts.   As for the woman wearing Niqab in the courtroom, a few issues come to mind:

1.)  She will not only be looking at the judge, but also a room full of people, which include photographers, media personal, baliffs, strangers sitting in the court, lawyers, etc.


2.)  The courts have allowed witnesses to cover up with masks in cases of necessity.


3.)  The need of the court to identify the witness can be done outside the formal bounds of the courtroom.


4.)  While the majority of scholars hold that it is not mandatory to cover the face and hands of a woman in front of stangers, others hold it a requirement. 


If the needs of the court can be met without compromising this religious position, that would be much appreciated.



And Allah knows best.



 

Be merciful to those on earth, and the One in the Heavens will be merciful to you.
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« Reply #11 on: Mar 06, 2009 05:15 PM »

Alleged victim’s rights trampled
Published: March 05, 2009 6:00 PM
Updated: March 06, 2009 7:26 AM


March 8 is the United Nations’ International Day for the Elimination of all Forms of Discrimination Against Women. The fact that we need a special day to remind us of the continuing discrimination against women and that we need to eliminate it gives us pause for reflection.

If you add in factors such as a woman’s religious beliefs, race, ethnicity, disability and sexual orientation, just to name a few characteristics, the issues of discrimination and ways to eliminate it become more complicated.

Take, for example, a recent decision by a Toronto judge that compels a Muslim woman to testify in court without wearing her niqab, a type of veil.

This case is complex because it involves the intersection of gender and religion. The woman in this case asked to wear the veil while testifying against her alleged assailant in a sexual assault case.

Defence counsel contended that her face should be uncovered so that the court could gauge her demeanour on the stand. Her lawyer asserted that discussing a sexual assault can be difficult and traumatic, and that people naturally turn to their faith and religious practices for comfort.

The judge determined in his ruling that the woman’s religious beliefs were not that strong and ordered her not to wear her niqab.

I thought a person’s religious beliefs were their beliefs, strong or not. And I can’t help feel that the alleged victim’s rights have been trumped by the rights of the alleged perpetrator, but I digress.

This is also a case involving sexual assault. In a Justice Canada research report into “The cost of pain and suffering from crime in Canada,” less than a quarter of all sexual assaults are reported to the police. Using data from the General Social Survey conducted in 1999, only one in 10 of those who are sexually assaulted report the crime. We know that women are the majority of the victims in these sexual assaults.

I wonder what impact the case in Montreal will have on observant Muslim women who are sexually assaulted.

On International Women’s Day, I’ll reflect on this woman’s and other women’s experiences with sexual assault and how the legal system treats them.

And yes, we still have a long way to go to eliminate discrimination against women.
 

 
 
 
 

 
Find this article at:
http://www.bclocalnews.com/tri_city_maple_ridge/tricitynews/opinion/40815148.html 

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« Reply #12 on: Mar 16, 2009 03:59 PM »

Niqab case postponed two weeks
 TheStar.com - Canada - Niqab case postponed two weeks
 
March 13, 2009
The Canadian Press

TORONTO – A motion put forward by a woman fighting a court order requiring her to testify without a religious veil will be heard in a few weeks.

Arguments were to be heard in a Toronto court today, but the case was put over to March 25 and 27.

The case is believed to be the first of its kind in Canada. The woman, an alleged sexual assault victim, wanted to wear her niqab during the suspect's trial last fall. The veil, worn by Muslim women, covers the entire face except the eyes.

Observers call it a case that pits religious beliefs against the right of defendants to face their accusers.

Unlike in the U.S., the Canadian Constitution does not guarantee the right of accused people to face their accusers in court, but it's been a practice in Canadian common law.


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« Reply #13 on: May 01, 2009 06:25 PM »

 fez

 thobebro
   UBAB

http://www.theglobeandmail.com/servlet/story/RTGAM.20090501.wniqab0501/BNStory/Front/home

TIMOTHY APPLEBY

Globe and Mail Update

May 1, 2009 at 11:59 AM EDT

TORONTO — A Toronto-area Muslim woman who alleges she was sexually assaulted by two men has won a round in her battle to testify in court while wearing a niqab, a veil that covers all of the face except the eyes.

In a keenly anticipated ruling addressing what appears to be the first case of its kind in Canada, Mr. Justice Frank Marrocco of Ontario Superior Court has overturned a decision by provincial court Judge Norris Weisman.

Presiding over a preliminary inquiry for the two defendants, Judge Weisman last year concurred with their position that the woman should be required to testify with her face in full view, and he instructed her to remove her veil.

However, Judge Marrocco's ruling does not necessarily clear the way for the woman, a Canadian-born mother in her early 30s, to testify from behind her veil. Instead, he ordered that the preliminary inquiry, on hold since the issue surfaced, hold two hearings, one to be videotaped to determine whether the woman's testimony would be admissible as court evidence under those circumstances.

He also granted intervenor status to the Ontario Human Rights Commission, which backs the contention of the woman and her lawyer David Butt that she should be allowed to give evidence while veiled because the garment stems from a sincere, deeply felt religious conviction that lies at the core of Canada's Charter of Rights and Freedoms.

Pitted against that is the competing principle, articulated last month by Jack Pinkofsky, attorney for one of the two accused, that open testimony, including a complainant's appearance, is a pillar of a fair criminal justice system and should supersede religious beliefs.

That too is a core Charter principle, the preliminary hearing heard. “Seeing the demeanour of the witness is a matter of critical importance not only at the trial but also at the preliminary inquiry,” Mr. Pinkovsky told Judge Weisman. “My cross-examination is determined by my assessment of the demeanour of the witness.”

As well, the defence noted the woman has an Ontario driver's licence bearing her photograph, unveiled, which led Judge Weisman to conclude that her convictions about baring her face were perhaps not as strong as she made out.

But whether deployed for or against the woman's bid to stay veiled, Charter arguments have no place at a preliminary inquiry, Judge Marrocco ruled, alluding to a 1986 Supreme Court of Canada decision. Judge Weisman, he said, “had no jurisdiction to hear and determine whether a Charter right had been infringed.”

Mr. Butt had hoped his client's right to stay veiled would be resolved by Judge Marrocco's ruling, which it was not.

Mr. Butt today said that while he was cautiously pleased with the outcome, the hearings ordered by Judge Marrocco to determine the admissibility of evidence given by a veiled witness have raised fresh questions that may be the basis of an appeal.

“Because of the complicated nature of the two hearings he has proposed, a procedure that would be very new and is something the judge has devised for this case in particular, we'll be looking at whether that should be reviewed by a higher court,” Mr. Butt said.

The hearings would entail calling evidence about a woman's religious beliefs and practices, and about the impact a veil might or might not have in a criminal case of this nature.


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« Reply #14 on: May 01, 2009 08:20 PM »

Judge can order veil removed, court rules
 TheStar.com - Crime - Judge can order veil removed, court rules
 
 

The niqab, a face veil that covers everything but a woman's eyes, has become an issue in voting during elections and in courtrooms. But Superior Court judgment also says preliminary hearing judge must hold another hearing into Mulsim woman's objection

May 01, 2009
Betsy Powell
Courts Bureau

A judge at as preliminary hearing has the authority to order a complainant in a sexual assault case to remove her veil while testifying if he or she believes it's not being worn for religious reasons, a just-released court ruling says.

Last fall, Ontario Court Justice Norris Weisman ordered a Muslim woman to testify with her face bared after finding her "religious belief is not that strong . . . and that it is, as she says, a matter of comfort."

The woman asked the Superior Court to overturn the ruling.

Superior Court Justice Frank Marrocco considered the application during a hearing in March and in a 38-page written ruling released today agreed to quash Weisman's decision.

However, Marrocco refused to grant the woman's order permitting her to wear her niqab while testifying once the preliminary hearing resumes.

Instead, Marrocco says Weisman will have to conduct another hearing about the issue since he didn't explore it far enough before making his decision.

"The failure to explore the limits and exceptions of the applicant's professed religious belief may have resulted in the preliminary inquiry judge mischaracterizing the applicant's evidence as an assertion that wearing the veil was a matter of comfort," Marrocco wrote.

However, Marrocco says Weisman, as the preliminary judge, is within his jurisdiction to rule on the matter once a more thorough hearing is held.

"At risk of stating the obvious, if the preliminary inquiry judge is not satisfied by the applicant that she is wearing a veil for a religious or other valid reason, he has the authority ...to order her to remove it, provided he is satisfied that he must make such an order to regulate the preliminary inquiry in a way consistent with the Criminal Code."

Lawyer David Butt, who represented the woman at the preliminary hearing and also argued the issue in front of Marrocco, said his client needs time to review and consider the "complicated" ruling.

"It appears to be saying on the one hand, that the preliminary inquiry judge inappropriately weighed in on Charter issues at a preliminary inquiry. On the other hand, it also appears to be saying that if the judge went a different route he or she could do precisely that at the preliminary inquiry anyway," Butt said today.

"In that sense, there does appear to be two different directions coming out of the judgement and that's something obviously my client will have to look very carefully at in terms of considering how to go forward from here."

The preliminary hearing is set to resume Aug. 19. Butt said his client now has two choices: whether to return to court that day "and in which case this judgement would govern what would unfold from there." She also has the option of appealing Marrocco's decision to the Ontario Court of Appeal.

"Because the judgement is in a new area and it's a very complicated set of reasons that's going to require some thought and careful attention."
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