Niqabs in Canadian courtrooms? Sometimes...maybe...says Supreme Court

Woman in Niqab - courtesy of The Guardian

The Supreme Court of Canada has issued an important and controversial ruling tackling the issue of the right a witness to wear a niqab (with a face covering, showing only the eyes of the wearer) in a criminal trial.  In the case of R v. N.S., seven judges participated in the decision.  The Court issued three different sets of reasons.  The majority decision, supported by four of the seven judges, held that a woman may be asked to remove a niqab in certain specified circumstances, but may be able to wear it otherwise.   Two of the judges would have ordered that women testifying in court must always remove their niqabs.  One judge would have permitted the wearing of a niqab in almost all cases other than where identity is at issue.

The majority decision is written by Canada's Chief Justice McLachlin.  The decision is balanced and thoughtful.  It tries to weigh two competing interests - religious tolerance and the right to a fair and open trial in a criminal proceeding.  It sets out rules for adjudicating cases in which these two sets of rights come into play.

Canada's Supreme Court has developed a strong tradition of emphasizing the acceptance and accomodation of religious minorities. Its decisions have recognized that accommodating minority religious belief and practice is integral to Canadian values as a welcoming multicultural country with a diverse population. 

However, these rights are not unlimited.  Chief Justice McLachlin discusses the importance in Canada of a fair and open trial for the accused and the need to be vigilant in protecting against the possibility of an unfair trial.  This right to a fair trial comes into a direct clash with freedom of religious practice in this case and the Court must find a way to address this challenge.  All seven judges recognize the need to resolve this clash.

The majority runs into difficulties in trying to apply these principles and balance the two rights without coming down clearly on one side or the other.  In this case, the witness was the alleged victim of sexual assaults. She was to be a key witness in the trial.  There is little doubt that two competing rights are fully engaged.  Yet, the majority decides that the case should be sent back to the trial judge to determine whether the witness was "sincere" about her religious belief of the need to wear the niqab.  The majority also suggests that the trial judge should consider how important it is to the accused that the accused be able to see the face of the witness during disputed evidence.  Chief Justice McLachlin sets out a test for dealing with these matters.  But ultimately, any reasonable application of the majority's test, based on everything the Chief Justice writes elsewhere in her decision, will lead to the removal of the niqab in most cases involving a criminal trial.  While the court's attempted sensitivity is admirable, the decision muddles the matter and creates some extra layers of judicial uncertainty where the results will be predictable most of the time based on the principles set out by the Court. 

Two of the Supreme Court's judges, Justices LeBel J. and Rothstein J. issued a dissenting set of reasons in which they would have adapted a clear rule that a niqab can never be worn in a court room.  Their decision suggests that any manifestation of religious practice is unwelcome if it clashes with "Canadian values" and seems to depart markedly from the more sensitive accomodation-oriented wording that is found in the majority decision and that has characterized other Supreme Court decisions in freedom of religion cases.  For these judges, the rights of the accused always trump freedom of religion.  They would not have allowed a woman to wear a niqab in a court, even where the evidence to be given is uncontroversial, irrespective of the consquences for the woman and her religious beliefs.

Justice Abella issued a lone dissenting opinion.   Her decision would have permitted women to wear niqabs in Canadian court rooms in all cases other than where identity is at issue.  Like the majority decision, Justice Abella's  decision considers this to be a case of a clash between two sets of competing rights.  However, Justice Abella is not convinced that a witness must always show her full face for there to be a fair trial.  She cites the examples of the use of interpreters, child evidence behind screens and other recognized exceptions.  Moreover, she is concerned about the possibility that women who have been assaulted will not come forward to testify because they would face the requirement to violate their religious practices.  As a result, she would have departed from the majority and would have required women to remove niqabs only
where identity is at issue.

The case addresses an issue that is extremely important for every democratic, multicultural country.  How should courts reconcile competing constitutional rights?  Do the rights of the accused always trump the right to religious freedom?  Is there a way to try to accomodate these competing rights?  The Court did not even consider the notion of whether equality rights also come into play.  That is another issue that courts worldwide will face with increasing regularity.

While the decision of Canada's Supreme Court is a valiant and well-meaning effort, it fails to set out clear guidelines.  If the court intended to ban the niqab in most cases, other than where the evidence is "uncontested" it should have said that clearly and ended the matter.  This seems to be the way that this decision will be interpreted most of the time.

In this case however, the Court chose to send the matter back to the trial judge to examine the witness's sincerity.  As Justice Abella concludes, this is probably unnecessary.  In most cases, sincerity will not be in issue.  However, it should be largely irrelevant and near impossible to discern.  The Court needs to set out guidelines for when a witness can or cannot wear a niqab in a criminal trial, assuming sincerity and assuming that the evidence is contested.  I suspect this type of case will wind up back at the Supreme Court in a reasonably short period of time and the Court will be required to issue a more definitive decision.

 

Delectable Lie: A Liberal Repudiation of Multiculturalism by Salim Mansur - Review

Is multiculturalism in a liberal democratic country a flawed policy? Salim Mansur makes that argument in his recent book Delectable Lie: A Liberal Repudiation of Multiculturalism. The book is thought provoking and contains a considered review of the works of many different writers and thinkers in a broad range of disciplines, including, primarily, philosophers and political scientists. Ultimately, however, the attack fails unless you accept Mansur’s definition of multiculturalism. Otherwise, Mansur’s book can be read as sounding the warning bell about a number of different issues that justifiably need to be addressed. But if the reader does not accept Mansur’s initial all-encompassing definition of multiculturalism, the rest of Mansur’s argument falls short.

Mansur begins with a definition of multiculturalism as the idea that “all cultures are equal and deserving of equal treatment in a liberal democracy.” With this definition, he asserts that multicultural societies, by definition, accept that any practice, by any cultural group, should be protected and promoted. He further claims that multiculturalism “assaults liberal democracy” by recognizing group identity and by causing the country to adapt to the requirements and values of other cultural groups. If this is what multiculturalism really meant, then perhaps Mansur might be right. But I do not believe that most inhabitants of multicultural countries really believe that this is a correct summary of a multicultural mission statement.

Mansur’s primary argument is that individual freedom is the primary hallmark of a truly free society and that any imposition of equality rights cuts into true “freedom.” Perhaps tellingly, he starts with the idea that “all men are created equal.” So who is really free under that vision of freedom? Men only? White men only? Struggling to get around this problem, he posits a “correction” to this liberal theory and notes that both the emancipation of women and the elimination of slavery and black/white discrimination were “corrections” to the principle of liberty that was defined originally but had otherwise fallen somewhat short.

In providing a list of truly free countries in the world today, Mansur includes the U.S., Canada, Australia, New Zealand, countries of Western Europe and Israel. What makes these countries so free? On the one hand, Mansur is correct that they value fundamental freedoms including freedom of speech, religion, a free judiciary and other freedoms. On the other hand, these countries also aim to protect and promote equality, including equality of opportunity, regardless of skin colour, gender, religious or cultural heritage, background or other characteristics. In some ways, it can be argued that these countries are truly “free” because they are multicultural. Anyone, regardless of his or her religious or cultural background, gender, colour or other personal characteristics, whether shared with a group or not, can participate equally in a truly free society.

Interestingly, Mansur includes a quote from the late former Prime Minister of Canada, Pierre Trudeau citing one of the purposes of multiculturalism:

“to assist members of all cultural groups to overcame barriers to full participation in Canadian society”

This does not really seem that objectionable. Yet Mansur argues that the recognition of the importance of any group or collective rights is “flawed.” Does that mean that all minority religious practices should be banned? Mansur does not propose this, though it might be the logical conclusion to his line of argument.

As the book develops, Mansur turns his attention to those who would take advantage of multiculturalism and use it to destroy a multicultural society. He argues that “host countries in the West readily provide welfare to those, such as radical Muslim priests and Islamists who brazenly ridicule and preach hatred for liberal democracy and the culture of freedom that separates the West from the cultures of the East and, in particular, the world of Islam.” This is certainly an issue that all of the “free” countries listed by Mansur must grapple with, especially those with significant immigrant populations. However, it is not answered by the idea that free countries should simply eliminate their tolerance of different minority practices. Countries like Canada can and do draw lines, even where the placement of the line is contentious.

Mansur discusses the paramount nature of free speech in a democratic country with references to various writers from Mills to Rawls. In discussing some of the threats to free speech and the abuses of it, Mansur writes about the “insidious threats” that freedom of speech faces. Specifically he refers to the 2007 U.N. resolution to combat the “defamation of religion” and prohibit “blasphemy.” Or the Danish cartoon incidents. Or the fatwas over Salman Rushdie’s The Satanic Verses. He also cites the trial of Geert Wilder for his documentary Fitna, the human rights commissions’ battles involving Ezra Levant and the use of human rights legislation and mechanisms by the Canadian Islamic Congress to attack Mark Steyn’s writing.

These are all frightening examples of the use of free speech or limitations on free speech by those who would limit many other freedoms. But this is not a general problem of multiculturalism, which strives to accept a range of diverse cultural practices within a liberal democracy. These are extreme threats. To fight these threats does not mean that countries must abandon multiculturalism.

Canadian courts, including the Supreme Court of Canada, have issued decisions in a number of areas that support multiculturalism. To name a few, Canadian courts have permitted observant Jews to put up Sukkoth (temporary huts) during the festival of Sukkoth in condominium units that prohibit balcony structures; they have permitted Sikhs to wear turbans as police officers; they have upheld the right of seventh day Adventists and other Sabbath observers not to work on their Sabbath. There are many other examples. All of these decisions would likely be viewed by Mansur as promoting and supporting multiculturalism. Yet, they are aimed at ensuring that Canadians from different backgrounds can participate fully in society. There is nothing “insidious” about that.

Mansur’s real target is fundamentalist Islam, not multiculturalism, though he disguises it. He attacks the “root cause” apologists for 9/11 such as Noam Chomsky and Linda McQuaig, who he argues “shift responsibility for the Islamist terrorists to the socio-economics of capitalist-imperialism.” He cites Muslim authors who call for Jihad and rail against certain western values like gender equality. He attacks Sharia law and the possibility of any western countries incorporating components of Sharia law into their systems and the dangers that might present. “Espousing acceptance of other cultures, irrespective of how such acceptance diminishes liberal democracy’s unique set of values” will destroy liberal democracies, he argues. Mansur is certainly correct that many tenets of Islam, as he describes it, such as gender inequality, Jihad, and discriminatory treatment of non-Muslims clash with liberal democratic values. But that does not lead to the conclusion that free countries should simply become intolerant of Muslims or of all Muslim practices.

Along the way, Mansur denounces dual citizens, liberal academics who blame the west for the state of the less developed non-European countries and any restrictions on free speech. But he backtracks slightly at the end of his book, arguing that there is no basis for ethnocentric prejudice by the majority population and no need to reject the cultural norms of their minorities. However, if any such practices collide with the core values of a liberal democracy then that aspect needs to be reformed or rejected accordingly. Mansur does not explain what he would do about the practices or beliefs of the Catholic Church, many Christian fundamentalist groups or others who would not accept his self-defined “core values of a liberal democracy.”

Ultimately, while Mansur demonstrates convincingly that free countries must carefully consider where they draw the line over which cultural practices to accept and which to prohibit, he fails to prove that countries should simply adopt intolerance of multiculturalism as the only appropriate means of remaining free.