Timothy Appleby, Globe and Mail (Toronto), March 2, 2009
Legal arguments in a sexual-assault case that turns on two competing human-rights principles–religious freedom versus defendants’ right to face their accusers in open court–will be aired next week, a Superior Court judge ruled Monday.
At issue is an application by the Ontario Human Rights Commission for intervenor status in the proceedings against two men accused of sexually attacking a Muslim woman who wants to testify while wearing her niqab, a veil that conceals most of a person’s face, leaving only the eyes visible.
The preliminary hearing for the two accused has been on hold since last year, when Mr. Justice Norris Weisman of the Ontario Court ordered the complainant to remove her niqab.
Now, the human rights commission is contending that the judge made a legal error, and is seeking status to make that argument in court, a unusual twist in a criminal proceeding.
Similar tussles have taken place elsewhere in the world, including Britain and New Zealand, but in Canada this appears to be the first case of its kind.
“There’s case law (suggesting) that you don’t necessarily need to see the witness’s face in order to properly assess credibility.”
The woman’s lawyer, David Butt, acknowledged that the two principles are in conflict.
As routinely happens where sexual assault is alleged, her identity is shielded by a court order. So too is the evidence that has surfaced so far in the preliminary hearing, including the identities of the two defendants.