Shannon Kari, National Post Published: Saturday, May 02, 2009
Getty Images FilesThe Criminal Code powers include the right of the judge to order the woman to remove her veil while testifying, a Canadian judge says.
An Ontario Superior Court judge has ruled there is no blanket right of a Muslim woman to wear a veil while testifying in court.
Justice Frank Marrocco did not issue a broad finding under the Charter of Rights, however, and instead suggested this should be decided by judges on an individual basis in court proceedings.
The Superior Court judge released his ruling yesterday after hearing arguments this spring in a high-profile case about the clash between religious freedoms and the fair trial rights of a criminal defendant.
"The Canadian approach may be a compromise," wrote Judge Marrocco.
"A trial judge will have to consider other societal interests in addition to freedom of religion and the right to cross-examine. There is the practical problem of making sure that control of the proceedings remains with counsel and the trial judge and does not shift to the witness," he observed.
Judge Marrocco presided over the appeal of a 32-yearold alleged sexual assault victim in Toronto, who was ordered to remove her veil while testifying at the preliminary hearing of the two defendants.
Provincial court Judge Norris Weisman found that the woman's religious beliefs were not strong and ruled last fall that she must remove the niqab, which covers everything but her eyes.
Instead, the woman appealed the decision to the Superior Court. Judge Marrocco heard submissions from lawyers representing the Crown, one of the accused, the woman and the Ontario Human Rights Commission.
The Superior Court judge concluded that Judge Weisman has the power under the Criminal Code to determine how a witness might testify. There are protections such as testifying behind a screen, which was not acceptable to the woman, because she could be seen by the accused.
The Criminal Code powers include the right of the judge to order the woman to remove her veil while testifying, said Judge Marrocco.
But the process conducted by the provincial court judge was not sufficiently thorough and he has been ordered to conduct a new hearing on the issue.
The woman will be permitted to wear her niqab during a "hearing within a hearing" when the preliminary inquiry resumes in August, explained Judge Marrocco. She will be asked to testify under oath and explain her religious beliefs as well as answer questions from the defence about the sexual assault allegations, which date back to when she was a child. It will then be up to Judge Weisman to determine "whether cross-examination has taken place," as it is defined under the Criminal Code and whether testimony with a veil on is admissible evidence in a Canadian court, said Judge Marrocco.
If Judge Weisman determines that the statements given while wearing the niqab is not proper evidence, he may order the woman to testify again without the veil. If she refuses, the charges could be dropped against the two men.
Lawyers for the woman and one of the accused men indicated on Friday that they may seek to appeal the ruling of Judge Marrocco after reviewing the decision.
Getty Images FilesThe Criminal Code powers include the right of the judge to order the woman to remove her veil while testifying, a Canadian judge says.
An Ontario Superior Court judge has ruled there is no blanket right of a Muslim woman to wear a veil while testifying in court.
Justice Frank Marrocco did not issue a broad finding under the Charter of Rights, however, and instead suggested this should be decided by judges on an individual basis in court proceedings.
The Superior Court judge released his ruling yesterday after hearing arguments this spring in a high-profile case about the clash between religious freedoms and the fair trial rights of a criminal defendant.
"The Canadian approach may be a compromise," wrote Judge Marrocco.
"A trial judge will have to consider other societal interests in addition to freedom of religion and the right to cross-examine. There is the practical problem of making sure that control of the proceedings remains with counsel and the trial judge and does not shift to the witness," he observed.
Judge Marrocco presided over the appeal of a 32-yearold alleged sexual assault victim in Toronto, who was ordered to remove her veil while testifying at the preliminary hearing of the two defendants.
Provincial court Judge Norris Weisman found that the woman's religious beliefs were not strong and ruled last fall that she must remove the niqab, which covers everything but her eyes.
Instead, the woman appealed the decision to the Superior Court. Judge Marrocco heard submissions from lawyers representing the Crown, one of the accused, the woman and the Ontario Human Rights Commission.
The Superior Court judge concluded that Judge Weisman has the power under the Criminal Code to determine how a witness might testify. There are protections such as testifying behind a screen, which was not acceptable to the woman, because she could be seen by the accused.
The Criminal Code powers include the right of the judge to order the woman to remove her veil while testifying, said Judge Marrocco.
But the process conducted by the provincial court judge was not sufficiently thorough and he has been ordered to conduct a new hearing on the issue.
The woman will be permitted to wear her niqab during a "hearing within a hearing" when the preliminary inquiry resumes in August, explained Judge Marrocco. She will be asked to testify under oath and explain her religious beliefs as well as answer questions from the defence about the sexual assault allegations, which date back to when she was a child. It will then be up to Judge Weisman to determine "whether cross-examination has taken place," as it is defined under the Criminal Code and whether testimony with a veil on is admissible evidence in a Canadian court, said Judge Marrocco.
If Judge Weisman determines that the statements given while wearing the niqab is not proper evidence, he may order the woman to testify again without the veil. If she refuses, the charges could be dropped against the two men.
Lawyers for the woman and one of the accused men indicated on Friday that they may seek to appeal the ruling of Judge Marrocco after reviewing the decision.
No comments:
Post a Comment