An Ontario judge has ruled that a woman must remove her face-covering veil to testify against the men she is accusing of sexual assault.

The judge says the woman’s niqab “masks her demeanor and blocks both effective cross-examination by counsel for the accused and assessment of her credibility by the trier of fact.

The 37-year-old woman, known only as N.S., alleges two men sexually assaulted her over five years, starting when she was six years old.

The question of whether she should be allowed to testify in the case while wearing her niqab went all the way up to the Supreme Court of Canada, which issued a split decision but set out a test for judges to decide in individual cases.

At the oral argument before the Supreme Court there was no mistaking the impatience  of  Justice Morris Fish’s voice when he demanded the name of a single lawyer who would willingly cross-examine a witness whose face was concealed by a veil.

“Some blind lawyers that I know,” responded David Butt, counsel to the sexual assault complainant seeking to testify from behind an Islamic niqab.
The Supreme Court Justices clashed repeatedly with lawyers who sought to rank one right ahead of the other – particularly Mr. Butt.

“Well, how about seeing lawyers?” Judge Fish insisted. “Your response quite explicitly and dramatically answers the question.”

The judges questioned not only the fairness of allowing the defendant, N.S., to hide her facial expressions during cross-examination, but whether two diametrically opposed rights can ever be reconciled.  The opinion of the Canadian Supreme Court can be found here.