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Facial covering/courts-elections-etc. (merged)

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HavokFour

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Wearing of Muslim veil to be decided on case-by-case basis: Ontario court

TORONTO — The Ontario Court of Appeal has declined to decide whether or not a woman can wear a niqab while testifying in court.

Instead, the three-judge panel set out guidelines for lower courts to follow on a case-by-case basis in balancing religious freedoms against the defendant's right to a fair trial when a witness wants to wear a Muslim veil.

"The wearing of a niqab in public places is controversial in many countries including Canada," wrote Justice David Doherty. "The controversy raises important public policy concerns that have generated heated debate. Those difficult and important questions are not the focus of this proceeding and cannot and should not be resolved in this forum," wrote Doherty in a decision released Wednesday morning.

Read more...
 
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An interesting development.

From the same article linked to above:
The Court of Appeal stressed that any inquiry into religious beliefs must be limited to whether it is "sincerely held" by the witness. "The court will not enter into theological debates," wrote Doherty.

If the beliefs are found to be sincere, a judge must then determine if wearing the niqab will violate the fair trial rights of the defendant, including the right to see the face of an accuser in court.

"If the judge were to conclude, in the specific circumstances of a given case, that allowing the witness to wear her niqab did not interfere with her cross-examination, or interfered only to a minimal extent, the accused's right to make full answer and defence would not be engaged," the three-judge panel stated.

The ruling was issued nearly two years after the preliminary hearing of two Toronto men charged with sexual assault, was stalled over whether their alleged victim, known only as N.S., could wear a niqab in court.

The 32-year-old woman is alleging that the defendants, who are her uncle and a former family friend, abused her when she was a child.

The provincial court judge presiding over the preliminary hearing ordered the woman to remove her niqab. Her religious sincerity was questioned by Judge Norris Weisman because she was uncovered in a driver's licence photo, which could be seen by men.

In its decision, the Court of Appeal ruled that Weisman placed too much emphasis on the photo and asked him to conduct a new inquiry when the preliminary hearing resumes.

I assume that one cannot wear a niqab for a driver's license photo?



 

ModlrMike

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I have to disagree with the court. The right to confront one's accuser is not malleable.

There is also a countervailing principle in that we need to make sure that any defendant is the correctly accused. One would hope that "religious" garb would not impede the police or Crown in the exercise of their office, nor contribute to the perversion of justice.

After all, "they who walk among us" have no ethical dilemmae in concealing their identities with a burqua or naquib.
 

krustyrl

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Maybe it's "my belief" in MY country that both accused AND victim have their identity in full view in a case like this.          :2c:
 

canada94

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Here's my view on this specific ruling;

The specific trial that sparked the debate on the Veil lead to these ruling's, and the final ruling states "If wearing the veil effects the course of the case it must be taken off".

So lets pretend this was already LAW, she would have had to take it off regardless because it effects the case!?

This ruling/ court was a total waste of money and time. Church and State are two different things. Wearing the veil is also not MANDATORY in Islamic law, it is a choice to wear or not to wear.

Mike
 

The Bread Guy

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Bump with the latest from The Supremes (links to Canadian Press story):
The Supreme Court of Canada has ruled that a witness can — in certain circumstances — wear a religious veil known as a niqab while testifying in court.

In a split decision, the court affirmed both an accused person’s right to a fair trial and the right to religious freedom.

The controversial issue, which has divided the Muslim community, has reared its head in recent years, leading to a new law in Quebec for public sector workers and new federal immigration rules that ban face coverings while taking the oath of citizenship.

In this latest case, a Muslim woman sought to wear a niqab while testifying against two men she claims sexually assaulted her when she was a child ....

SCOC decision in R. v. N.S., 2012 SCC 72 attached
 

Edward Campbell

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Prof Emmett Macfarlane of of the University of Waterloo, a scholar who specializes in the Supreme Court of Canada, has written an instant analysis of this decision - focusing on why it's probably not the last word - in this article which is reproduced under the Fair Dealing provisions of the Copyright Act from Maclean's:

http://www2.macleans.ca/2012/12/20/supreme-court-splits-in-messy-decision-on-face-veils/
Supreme Court splits in messy decision on face veils
Balancing rules are akin to parking a tank on one side of a seesaw, writes Emmett Macfarlane

by Emmett Macfarlane on Thursday, December 20, 2012

Ask observers to sum up Beverley McLachlin’s reign as chief justice of the Supreme Court of Canada and you’ll hear a lot about consensus building. Her modus operandi in difficult Charter of Rights cases has usually consisted of avoiding one-sided proclamations of principle in favour of meting out compromise and getting her colleagues to join her on a moderate, often minimalist, judicial path.

Sometimes the result is praiseworthy, as it can result in the Court speaking with one authoritative voice and setting out some constitutional ground rules while still throwing difficult issues back into the democratic arena for further deliberation. But unanimity is not always possible. Sometimes the consensual, compromise approach can result in murky, confused decisions. Sometimes the Court is confronted with irreconcilable rights conflicts. Sometimes even intricate, multi-step legal tests aren’t enough to overcome a clash of values and principles.

Today’s majority decision on whether a Muslim sexual assault complainant must remove her niqab (face covering) when testifying in court is one of those times. Either the complainant’s genuine religious beliefs are compromised, or the accused’s right to a fair trial might be infringed.

The tension between these two constitutional guarantees split the Court into three camps, with a four-judge majority declaring that, where there is no serious risk to trial fairness, a witness may wear a niqab. Two judges, in a decision written by Justice LeBel, argue that witnesses should never be permitted to wear a niqab while testifying, while the lone dissenter, Justice Abella, makes the case that the risks posed to trial fairness are overblown.

Although adopting nearly polar opposite positions on which constitutional rights ought to win the day, the LeBel and Abella judgments both serve to underscore the extent to which the majority’s attempt to develop “balancing rules” — conditions for when the niqab may be worn – are unworkable.

How do we determine whether there’s a serious risk to trial fairness? One important factor, the majority says, is whether the testimony is contested, a notion that would appear to instantly preclude the vast majority of sexual assault cases.

As a result, the majority’s “balancing rules” are akin to parking a tank on one side of a seesaw. Testimony in criminal trials is inherently contestable; that’s the very idea behind the principle of cross-examination at the core of the defendant’s rights in this case.

The other major element of the majority’s balancing rules is to assess whether the benefits of forcing the complainant to remove her niqab outweigh the negative consequences of doing so. The majority would have us believe that this is something that could be assessed on a case-by-case basis. The reasons of LeBel and Abella make clear why that is an unconvincing proposition.

According to LeBel, the integrity of the justice system depends on effective communication of witnesses. “Wearing a niqab, on the other hand, does not facilitate acts of communication. Rather, it restricts them. It removes the witness from the scope of certain elements of those acts on the basis of the assertion of a religious belief in circumstances in which the sincerity and strength of the belief are difficult to assess or even to question.”

While respectful of the religious rights at stake, LeBel believes that privileging religious freedom in this context would be inconsistent with the public nature of courts and common law tradition. Worse, it may result in “reading the most basic rights of the accused out of the criminal law and of the Charter.” For that reason, he argues, no exceptions should be allowed.

Justice Abella, alone in dissent, is unconvinced by this sentiment: “I concede without reservation that seeing more of a witness’ facial expressions is better than seeing less. What I am not willing to concede, however, is that seeing less is so impairing of a judge’s or an accused’s ability to assess the credibility of a witness, that the complainant will have to choose between her religious rights and her ability to bear witness against an alleged aggressor.”

The McLachlin and LeBel judgments’ assumption – and indeed McLachlin herself uses the word “assumption” to describe the justice system’s belief about the importance of seeing a witness’ face (while dismissing social science evidence presented in the case) — that the face veil poses a great obstacle to assessing witness credibility begins to fall apart when we consider a myriad of analogies.

Witnesses who require translators, who have suffered disfigurement or facial paralysis, who are blind or deaf, who are particularly beautiful or ugly, very old or very young — all of these factors can have tremendous influence on our perception of someone’s truthfulness. All of these serve as obstacles to our limited ability to determine the veracity of what someone else is saying. In some ways, a face veil could just as easily improve such assessment, as the focus will be more on what is being said than on how one looks saying it.

A more fundamental concern, however, is that by forcing sexual assault complainants to choose between sincerely held religious beliefs and testifying against their attackers, the Court risks more victims refusing to come forward. Faith in our justice system is a two-way street; victims deserve confidence that the system will treat them fairly, too.

You or I may believe the niqab is an offensive anachronism, predicated on absurd patriarchal notions. But that’s not the point. The point is the niqab is central to the religious convictions of the individual, to their sense of self and their own dignity. It is precisely why the Court has rejected the idea that it would ever analyze the relative value or sensibility of religious practices in its approach to Charter rights, and instead only focus on the sincerity of the beliefs in question.

So long as the decision to wear the niqab is made freely, it ought to be respected from a rights perspective. And in weighing so heavily the risks to a fair trial over not just the latitude given to religious freedom, but also the deleterious and societal effects of providing insufficient protection for them, the majority has handed trial courts a messy confluence of rules likely to do more harm than good.

Emmett Macfarlane is an assistant professor of political science at the University of Waterloo. You can follow him on Twitter @EmmMacfarlane


I think that Chief Justice Beverly McLachlin did about as well as anyone could expect in finding some sort of compromise between Arbella and LeBel; my guess is that most witnesses of any substance in most criminal trials will be required to remover their veils and testify, albeit usually in greater than normal privacy (which will mean little to a truly devout person). While I accept Macfarlane's argument about veils vs. say facial paralysis, deformity, etc, I agree with LeBel et al that the assumption that seeing a facial expression is necessary to fairness trumps, in all cases, religious restrictions.
 

George Wallace

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To me, it seems to allow the wearing of the niqab and veils will create the problem where the person is not 'truly' identified, whether they are a witness or defendant.  Anyone could be under those coverings, not necessarily the person as identified to the court.  It is/becomes a masquerade.  Who really is under that cloth?
 

Strike

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George Wallace said:
To me, it seems to allow the wearing of the niqab and veils will create the problem where the person is not 'truly' identified, whether they are a witness or defendant.  Anyone could be under those coverings, not necessarily the person as identified to the court.  It is/becomes a masquerade.  Who really is under that cloth?

George, it would be a matter of a female staff member checking the person against their ID prior to testifying.  It's the person being veiled while testifying that is the problem.
 
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jollyjacktar

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The veil is a cultural thing not a religious requirement. 
 

brihard

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jollyjacktar said:
The veil is a cultural thing not a religious requirement.

You will get zero mileage with that argument. the court has decided that it is not in a position to adjudicate on what is and what is not a legitimate religious requirement. That is ultra vires the jurisdiction of a court of law. It is sufficient that a person of religious faith proclaims the earnest belief that something is a religious requirement in order for it to be considered to be so. Besides, that is all that is necessary to determine the effect on the person in question of being forced to balance their earnestly believed religious requirement against the desire to pursue justice formally.

Historically there has seldom been much success when secular authorities try to tell people that they are wrong about what their religion does and does not require. In a case like this one must look at comaprative harms; the harm of a witness' face not beign visible against the harm of people of a certain faith feeling that they cannot come forward with allegations that will require their testimony. At the end of the day this will simply play into whether there is or is not any 'reasonable doubt' upon which a judge or jury must acquit. I'd rather the case come to court in the first place, and then the issue of the credibility of the witness be dealt with. The odds are stacked against sexual assault victims enough as is.
 

Edward Campbell

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jollyjacktar said:
The veil is a cultural thing not a religious requirement.


That's true enough, as far as I have been told by people who should know, but if a person truly believes that something is "ordained by god himself (or herself) then who is a judge to argue?
 
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jollyjacktar

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Brihard said:
You will get zero mileage with that argument. the court has decided that it is not in a position to adjudicate on what is and what is not a legitimate religious requirement.

It's not an argument.  It's a fact, plain and simple.
 

Bruce Monkhouse

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E.R. Campbell said:
That's true enough, as far as I have been told by people who should know, but if a person truly believes that something is "ordained by god himself (or herself) then who is a judge to argue?

Google Wally Tucker and the Church Of The Universe. ;D
 

brihard

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jollyjacktar said:
It's not an argument.  It's a fact, plain and simple.

Religions are by their very nature self defining. You can argue it til you're blue in the face, but it is in accordance neither with the decisions of our courts on the matter - drawing from better experts than you or I - nor the practitioners of the religions themselves. Let's not pretend that scripture is the sole authority for religious norms; they have their 'case law' too coming from their own respective clerics within their chosen sects.

More to the point was the latter part of my post- that what you or I believe regarding religious requirements is immaterial compared with that the practitioners of that religion believe to be the case. It is their belief and the impact of judicial policy thereon that will determine the efficacy of our criminal justice system in addressing the needs of any given religious community who may find their religious tenets coming into conflict with what have in the past been unquestioned norms in our justice system.

If a woman is raped, and beleived that she must wear the Niqab, and because of this does not feel that she can testify in court, and consequently the rapist is not brought to justice, that is a fundamental problem that goes well deeper than how you or I may choose from the outside looking in to determine what a particular religion does or does not mandate.
 

George Wallace

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Strike said:
George, it would be a matter of a female staff member checking the person against their ID prior to testifying.  It's the person being veiled while testifying that is the problem.

How about the right of the defendant, or any other member of the court or involved in the court proceedings, being able to positively identify the person under the 'disguise' ( disguise; as they are masked from identification)?

This is once again a problem that has arisen in the past in a wide range of areas such as Drivers Licences, airline security, etc.
 

The Bread Guy

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This just out:  the feds are dropping this case ....
The Honourable John McCallum, Minister of Immigration, Refugees and Citizenship, and the Honourable Jody Wilson-Raybould, Minister of Justice and Attorney General of Canada today issued the following statement:

    “On November 16, 2015, the Attorney General of Canada notified the Supreme Court of Canada that it has discontinued its application for leave to appeal in the case of Minister of Citizenship and Immigration v. Ishaq. The Federal Court of Canada found that the policy requiring women who wear the niqab to unveil themselves to take the Oath of Citizenship is unlawful on administrative law grounds, and the Federal Court of Appeal upheld this ruling. The government respects the decision of both courts and will not seek further appeal to the Supreme Court of Canada.

    “Canada’s diversity is among its greatest strengths, and today we have ensured that successful citizenship candidates continue to be included in the Canadian family. We are a strong and united country because of, not in spite of, our differences.”
More here via Google News.

Maybe we'll soon here about dropping this court challenge soon, too, no?  :pop:
 

George Wallace

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milnews.ca said:
This just out:  the feds are dropping this case ....More here via Google News.

Maybe we'll soon here about dropping this court challenge soon, too, no?  :pop:

So?  What are your impressions of this?

Fatima Elomar: Wife of IS terrorist Mohamed Elomar pleads guilty
November 16, 2015 2:15am
Sarah Crawford and Matt BamfordThe Daily Telegraph

ISLAMIC State terrorist Mohamed Elomar sent his wife a shopping list of items he needed in Syria including hiking boots, hunting pants and battery chargers, telling her that when she arrived with her four children, “the kids r gonna luv it”.

Fatima Elomar, 31, pleaded guilty in Downing District Court to helping her death cult husband, who is believed to have since been killed, to fight for Islamic State.

A 29-page fact sheet tendered to court revealed Fatima Elomar mostly used the Tango app to send free text messages to her husband between January and May 2014 in which he encouraged her to get the children’s passports in order so she could join him in the Islamic State stronghold of Raqqa in Syria.

The text exchange reveals Elomar received a bad bullet wound in March last year which kept him bedridden and on crutches for a lengthy period of time.

On March 23, Fatima Elomar received a Tango image from Elomar of a leg with a bullet or shrapnel wound to the knee with a bandage wrapped around the shin.

Two days later Fatima Elomar begged him to come home to receive proper treatment

In the news video, Fatima Elomar is seen exiting the court in a full burka.  I am sure that that visual effect will have quite an affect on the opinions of many who watch it.

LINK.

The video has the reporter stating that she recieved a five year prison sentence. 
 
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