A Toronto sexual assault complainant known as N.S. had no inkling last year that she would ignite a nationwide debate by asking to testify wearing a niqab.

Reaction was immediate. Debate raged in the news media and the Internet, and the defendants – her cousin and uncle – argued that the complainant’s truthfulness could not be gauged if her face was hidden.

On Tuesday, the Ontario Court of Appeal becomes the highest court yet to face the thorny question of whether a defendant has an absolute right to face his accuser.

 

“ If one were to try to conceive of the most effective way to humiliate and intimidate a Muslim woman from coming forward with an allegation of sexual assault, what better way than the court order that was requested in this case? ”— Susan M. Chapman, lawyer

Some legal intervenors in the appeal argue that veils provide a convenient shield for lying witnesses. Others firmly reject the notion that facial expressions provide a reliable guide to honesty. And at least one group maintains that the act of removing an alleged rape victim’s veil is laden with violent, sexual overtones.

The group, the Women’s Legal Education and Action Fund, also contends that disallowing veils will drive Muslim women from the justice system.

“At its core, this case is about access to justice – particularly for Muslim women who allege sexual abuse,” said Susan M. Chapman, a lawyer for LEAF. “It is about stripping away the rights of Muslim women so that they may not seek the protection of the criminal law for sexual crimes committed against them.”

Ms. Chapman said the case adheres to a time-worn theme of sexual assault defendants attempting to embarrass and discourage complainants.

“If one were to try to conceive of the most effective way to humiliate and intimidate a Muslim woman from coming forward with an allegation of sexual assault, what better way than the court order that was requested in this case?” she said. “It demands that she undress in body and spirit.”

At a preliminary inquiry last year, Provincial Court Judge Norris Weisman ordered the 32-year-old woman to remove her niqab so that defence counsel could assess her claims to have been molested from 1982 to 1987. The woman resisted on the basis that her religion prevents her from exposing her face to non-family members.

Judge Weisman expressed skepticism about the sincerity of her beliefs, noting that her driver’s licence included a photograph of her face.

But Ms. Chapman and co-counsel Joanna Birenbaum argue that judges have no right to assess an individual’s faith.

“In the current political climate of fear, distrust and heightened scrutiny of veiled Muslim women, the real task is to prevent false assumptions being made about women who wear the niqab,” the LEAF lawyers said in a written brief.

In another brief, the Canadian Civil Liberties Association warns that denying Muslim women the right to testify while veiled could harm the search for truth.

“This is because a woman who always wears a niqab is likely to experience significant discomfort, anxiety and stress if forced to remove her niqab when testifying, and is therefore less likely to come forward and give evidence…,” it said.

David Butt, a lawyer representing N.S., raised the spectre of racism. He said in a brief to the court that many of those who oppose the use of veils are “Islamophobes.”

Mr. Butt condemned Judge Weisman’s conclusions about N.S. as paternalistic. “Judicial approval or disapproval of [her] religious practices is unwelcome and counts for nothing,” he said.

Other legal intervenors in the case warn that allowing N.S. to testify from behind a veil could set a precedent for similar claims from more obscure religious sects.

The Muslim Canadian Congress adopted a tough position against a blanket rule that permits veils. It said it is foolhardy to assume that any woman choosing to wear a veil does so wholly for religious reasons. The motives of women wishing to testify from behind a veil ought to be closely examined before a defendant’s right to face his accuser is lightly thrown aside, it said.

The brief from the congress also disputes how often a veil is freely chosen by an independent woman. “The covered female face is a reminder to the wearer that she is not free, and to the observer that she is a possession,” it said.

Criminal Lawyers Association counsel Frank Addario and Emma Phillips argued that, while erroneous conclusions based on a witness’s demeanour have figured in many wrongful convictions, a cross-examiner nonetheless needs to observe subtle facial expressions and body language.