Permitting alleged victims or any witness to wear a veil while testifying would fundamentally change core principles in our justice system, an Ontario Superior Court judge was told yesterday.
“Justice must be seen to be done. It cannot be masked or veiled,” Jack Pinkofsky said. “The face of justice cannot be faceless,” the veteran defence lawyer added.
Superior Court Justice Frank Marrocco has been asked to decide whether an alleged victim in a sexual-assault case in Toronto will be permitted to testify while wearing her niqab. The Muslim veil covers all of her face except her eyes.
The provincial court judge presiding over the preliminary hearing of the two defendants ruled last fall that the woman’s religious beliefs were not that strong and ordered her to remove the veil. She refused and was granted the right to appeal the decision to the Superior Court.
While it may be harder to assess the demeanour of a witness in a niqab, the impact on the defence “is not that significant,” said the woman’s lawyer, David Butt. “If you have got the eyes, you have got the picture,” he suggested.
The Criminal Code permits witnesses such as alleged sexual-assault victims or children to testify by video or behind a one-way screen. In both situations, the defence lawyer and accused can see the witness. Mr. Butt explained that this would not be acceptable for his client because men could see her without the veil.
The legal issue for Judge Marrocco is not about the Charter of Rights and religious freedom, but a question of “natural justice,” said Mr. Pinkofsky, whose firm is representing one of the accused.
“The submissions I heard today suggested we should be glad that Pierre Elliott Trudeau crafted the Charter, because we never had anything before the Charter. That is not correct. This has been vested in the common law for centuries. It is the rule of law. We don’t search for the half-truth,” Mr. Pinkofsky said.
He spoke of the “right of confrontation” of an accused person to see his accuser, which dates back to Roman law and is enshrined in the U. S. Constitution. It is not enough to hear what a witness says to be able to properly assess credibility and receive a fair trial, Mr. Pinkofsky said.
“If you went to any man or woman on the street and suggested they would fully appreciate what someone is saying just by listening and not by seeing, they would guffaw,” Mr. Pinkofsky said. “Demeanour is part of the very fabric of what we call evidence, and it is not to be taken away from us without a terrible struggle.”
The Ontario Ministry of the Attorney-General is taking the position that the woman should be allowed to wear the niqab at the preliminary hearing, because the judge has limited legal powers to assess credibility when determining if the accused should go to trial. Crown attorney Laurie Gonet explained that the province has not taken an official position on the broader issue of whether this should be allowed in an trial.