RSS FeedNiqab, Sex Assault, And The Court: An Examination Of R v NS
In a unanimous decision in October 2010, the Ontario Court of Appeal affirmed that a sexual assault complainant may wear a niqab, a Muslim facial veil, while testifying. The Muslim Canadian Congress had intervened on behalf of the two accused men who had requested the order that the complainant remove her niqab. Upon the judgement’s release, Tarek Fatah, founder of the MCC, argued that the decision made “a fool of the Canadian judicial system and values of gender equality”. In fact, the court had paid careful attention to balancing the witness’s freedom of religion and the accused’s right to make full answer and defence. To date, Fatah is perhaps the only person to so openly argue that allowing a sexual assault complainant to testify in front of her alleged attackers in the clothes in which she feels safest is a denial of gender equality. For some context, it is worth noting that Fatah has long been a vociferous advocate of a total ban of the niqab in Canada. His response to attempts in Quebec to ban the niqab was to proclaim, “I welcome the rescue of all Muslim-Canadian women.” The wholesale paternalism of his language is revealing: to the extent that Fatah wishes to counter gender inequities, his position has persistently emerged from a patriarchal perspective that infantalises Muslim women by denying their agency in making sartorial and religious choices for themselves, even such highly contested choices as the one to wear niqab.
To be sure, generalised public discomfort around the niqab did inform most mainstream debate about the decision. However, in this paper I want to shift the discussion away from the Huntington-esque clash-of-civilisations characterisation advocated by Fatah to a more considered analysis of both the specific reasonings and the broader implications of the judgement. I argue here that the judgement actually signals a substantive attempt by the OCA to address some of the systemic inequities that entrench the pervasiveness of gendered violence in society.
FACTS AND HISTORY
The facts of the case are distressing, but not atypical for sexual assault cases. The complainant, N.S., alleged that between the ages of six and 11 she had been repeatedly sexually assaulted by her uncle and her cousin, the accused. In 1992, when she was 16, N.S. disclosed the assaults to a teacher, but the accused were not charged until 2007.
In 2004, as part of her practice of Islam, N.S. began wearing the hijab, a headscarf, and niqab, a veil that covers her face, whenever in the presence of males who are not her direct relatives. At the preliminary inquiry in 2008, after electing trial by judge and jury, both accused men sought an order that would require N.S. to remove her niqab before testifying. The preliminary inquiry judge ruled in favour of the accused. Read more
Considering the Constitutionality of Bill 94
May 18 is the national day of action against Bill 94, the proposed legislation in Quebec, which if approved, would deny essential government services, public employment, educational opportunities, and health care to Muslim women who wear niqab (face veil). A rally has been arranged in Toronto to take place at 1PM at 20 Queen Street W. Other actions, such as contacting MPs, are also urged for that day.
In her essay, Bill 94: Quebec’s Niqab Ban and Sex Equality, Beverley Baines, professor of Law and the head of the Gender Studies Department at Queen’s University, considers the Bill within Constitutional a framework that should, by now, be familiar to all the former first-years who’ll have written very similar case scenarios during their final exams lo these two weeks ago:
If Bill 94 becomes law, a constitutional challenge would begin with the two preliminary issues that are raised in any Charter challenge. First, does the Charter apply to the impugned action? Here the answer is yes because the impugned action is a statute and the Charter applies to legislation. Second, does the party bringing the Charter challenge have standing to proceed, that is, does the party have an interest that is harmed by the law? Again the answer is yes because the party bringing this hypothetical Charter challenge is a woman who has been or is about to be excluded from providing or receiving a government service in Quebec because her face is covered by the niqab. With these preliminaries satisfied, the next steps are to ask: (i) have one or more Charter rights been violated? And if so, (ii) can Quebec justify violating these Charter rights? What follows are two possible Charter scenarios, the first more conventional than the second.
She concludes:
Women seeking to challenge the niqab ban should invoke their right to sex equality to emphasize their belief in the consistency between this right and their reasons for wearing the niqab. Their challenge would force Quebec to fall back on its second or institutional justification – reasons of security, communication, identification – to justify denying reasonable accommodation. If Quebec has any evidence to sustain these reasons, why should it not be produced, contested and evaluated? The failure to manifest transparency suggests this evidence may not be as conclusive as Quebec asserts. Moreover, Quebec needs to explain why other more minimally rights-impairing processes would not be sufficiently responsive to its institutional concerns. Finally, Quebec should articulate how its institutional reasons could possibly trump sex equality, given everything this province claimed about the priority that should be given to sex equality during the drafting of s. 50.1? Does sex equality matter only when Quebec claims to be its primary exponent?
Why Québéc Cannot and Should not Ban the Niqab
An article jointly written by David Shulman and Lawrence Gridin
Last week the government of Québéc announced that it would restrict female Muslims from covering their faces with the niqab. This article is about the fundamental freedoms that we enjoy as Canadians and human beings, and the power of the government to encroach upon those freedoms.
The legislation proposed in Québéc will prevent a woman wearing a niqab from being able to access public services, including consulting doctors at a hospital or attending classes at university. It also prevents all government employees from wearing a niqab, including those employees who have no contact with the public. More details can be found here.
Prime Minister Harper and Liberal Leader Michael Ignatieff have announced that they support the ban, and a large (if not overwhelming) majority of Canadians agree with them.
A Primer on Freedom
Let’s begin our discussion with a review of the Ann Coulter affair, which bears some analogues to the Québéc niqab issue.
We cannot think of another person whom we personally disagree with more on virtually every dimension than Ms. Coutler. We have difficulty thinking of anyone else who spews out as much vile hate, ignorance and prejudice as Ms. Coulter. We’re bothered by the fact that there is any demand — outside of perhaps morbid curiosity — for her wares at all.
Here are three pieces, taken from Ms. Coulter’s repertoire, that support our opinion:
“They’re [Democrats] always accusing us of repressing their speech. I say let’s do it. Let’s repress them. Frankly, I’m not a big fan of the First Amendment.”
- University of Florida speech, October 20, 2005.
“I have to say I’m all for public flogging. One type of criminal that a public humiliation might work particularly well with are the juvenile delinquents, a lot of whom consider it a badge of honor to be sent to juvenile detention. And it might not be such a cool thing in the ‘hood’ to be flogged publicly.”
- MSNBC, March 22, 1997.
“I think [women] should be armed but should not vote…women have no capacity to understand how money is earned. They have a lot of ideas on how to spend it…it’s always more money on education, more money on child care, more money on day care.”
- Politically Incorrect, February 26, 2001.
Despite our profound disagreement with her views, we would fight vigorously to protect Ms. Coulter’s right to express them. The right to freedom of expression is guaranteed by our Charter of Rights and Freedoms. We would proudly defend her right to freedom of expression in any court with every ounce of our ability and integrity, just as vigorously as we would defend our own right to criticize and disagree with her views.
Why?
Muslim Group Seeks to Ban Woollen Socks
special contribution by Faraz Siddiqui
Toronto, Oct 28th: In what seems to be a rising fad, a Canadian Muslim organization has asked the federal government to ban woollen socks from public spaces.
According to a statement released yesterday by the Islamic Taskforce Against Oppression (ITAO, also known as the Taskforce Against Islamic Oppression), “mosques are full of the oppressive smell of woollen-clad feet, and the situation is expected to worsen with the arrival of snow.”
The authors of the petition argue that there is no religious basis of wearing wool. Tay Rick of Phaeta, ON who chaired the taskforce said, “The Koran does not say ‘Thou shalt wear wool to prayers.’ In fact, the practice of wearing socks made of wool is rooted in Arab culture.”
Woollen socks first became popular in the deserts of Arabia where there was no rain, snow, or—importantly—cotton. It is no surprise then, that wool is worn mostly by Canadians of Middle Eastern origins.
The cause has found support even outside Canada. This Friday, ITAO is launching an international Save the Sheep campaign, featuring Ban Di Wool, executive director of of Sockless Dojos, a non-profit organization based in Japan.
“Research shows that smelly feet further marginalizes those members of society that are already prejudiced against due to their poor hygiene and ultra-conservative sense of fashion,” Di Wool said. “The discrimination needs to be stopped.”
However, critics argue that foot hygiene and education can prevent pungent mosques, but Mr. Rick doesn’t agree. “Education? Why educate when we can eliminate.” Others believe the petition is just a publicity stunt by ITAO, who have recently had little work to do.
Moreover, a recent human rights group survey shows that 1 in 5 Canadians are allergic to cotton, the natural alternative to wool. Mohamed, a generic respondent for providing such quotes was worried. “I hope they don’t ban woollen underwear. Cotton undies give me rashes on my [buttocks],” he said. “What about my comfort?”
However, Mohamed confessed he will not be wearing wool when crossing a border or getting a passport picture taken. “I always have long delays and am asked to remove my shoes. Come on, my name is Mohamed!” His friend Ahmed agreed. “The foul smell might irritate Customs officers. My right to wear woollen socks end where your nose starts,” he said.
In other news: Terrorist caught trying to steal one sock out of all your laundry baskets
(It’s satire folks, we do that here occasionally, so you can stop freaking out – see the “Humour” tag)
Sarkozy Wants to Ban the “Burqa”
French President Nicolas Sarkozy stated this past week that he is interested in banning the “burqa,”
The burqa is not a religious sign, it’s a sign of subservience, a sign of debasement — I want to say it solemnly. It will not be welcome on the territory of the French Republic.
But Sarkozy is not really talking about the burqa, he’s referring to the niqab. His nomenclature is borrowed from his selected exposure via media to the Afghan chadri, which is almost never worn outside of Afghanistan or neighbouring countries. It may seem like semantics, and some neo-cons have argued banning both.
Ignorance over terminology is not the only issue here. It’s premised on the assumption that it’s involuntary, and not a bona fide religious requirement.
There are certainly disagreements among Muslims about the use of face-coverings, and certainly those that believe it is mandatory.
The assumption that these garbs are forcibly imposed on women by men living in France reflects its own type of paternalism about the empowerment and ability of minority women.
If there are cases where women are being forced, it would not be upheld under any human rights standards. But for women who are being forced, is not the most likely outcome that they would now be forced to stay inside: leading to further disempowerment?
For women who are choosing to dress in this way, Sarkozy’s ban would have a difficult time justifying necessity or protection of rights and freedoms under Article 9 of the European Convention on Human Rights,
- Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.
- Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or the protection of the rights and freedoms of others.
If his ban was to proceed, it would likely receive a challenge to the European Court of Human Rights (ECtHR). If brought by women wearing a niqab out of their own volition and a belief that it is part of their religion, any such uniform ban is unlikely to succeed.
What’s Behind the Veil of Justice?
An abridged version of this piece was published today in the Toronto Star. Reproduced here for interest with permission of the author, all rights reserved.
Veils and justice
February 04, 2009
Faisal Kutty
Here they go again. Muslims just don’t give up trying to change our values and roll back hard fought rights of equality and justice. Though this time, we may have nipped it in the bud early – but should we?
Ontario Court Justice Norris Weisman‘s “admittedly difficult decision” to force a complainant to testify without her niqab, or face covering, in a sexual assault case has unleashed a torrent of discussion and debate. Again, the usual suspects with too little knowledge, appreciation or understanding of the complexities of the issue have jumped into the fray.
The ruling once again brings to the fore questions surrounding the limits of accommodation in a liberal multicultural society. But this time, in a novel twist, the clash pits a person’s religious right with the right of a defendant in a criminal trial to due process and procedural fairness; namely that of being able to face his or her accuser in open court. Obviously, both are important rights in a liberal democracy.
The niqab – which a small fraction of orthodox Muslim women use to cover their faces, and not to be confused with the hijab or head covering – is attacked by some as a symbol of oppression. By others as a badge of political Islam. By others as a public-relations nightmare for their “moderate” or more palatable versions of Islam. By others as something that should be compromised in the two-way dance of accommodation. And still by others as not compulsory or even totally unnecessary from a strict Islamic legal point of view.
