كندا: تسوية قضائية حول ارتداء النقاب

أعلنت محكمة "أونتريو" للاستئناف أن اعتبار ارتداء النقاب أثناء المحاكمات يخضع لظروف كل قضية بمفردها، وأن الهيئات القضائية لن تمنع من ارتدائه كما أنها لن تسمح به بصورة مطلقة.

وأكدت المحكمة أن المرأة المسلمة من حقها ارتداء النقاب كواجب ديني أثناء أداء الشهادة كما أن القاضي من حقه إلزام المرأة بخلع نقابها إذا ما احتاجت القضية لمواجهة بين الأطراف تعتمد على رؤية الوجه طبقًا للمعمول به في المحاكم الكندية.

الخبر من مصدره الأصلي:

A made-in-Canada ruling on the Muslim veil

It is a typically Canadian solution.

The Ontario Court of Appeal won’t ban Muslim witnesses from wearing a face veil. Nor will the highest court in the province grant them an automatic right to do so.

Instead, in their highly anticipated decision, the appeal court has ruled right down the middle, saying “each case must turn on its own facts”.

As long as it doesn’t prejudice a fair trial, the court ruled, Muslim women should have the religious right to wear their niqab when testifying.

But if a judge is convinced by the accused that he can’t properly defend himself if she’s testifying against him behind a veil, the witness must remove her niqab and allow the face-to-face confrontation that is the norm in Canadian courts.

“The criminal justice system as it presently operates, and as it has operated for centuries, places considerable value on the ability of lawyers and the trier of fact to see the full face of the witness as the witness testifies,” wrote Justice David Doherty in the ruling released Wednesday morning on behalf of the three-judge panel.

“There is no getting around the reality that in some cases, particularly those involving trial by jury where a witness’s credibility is central to the outcome, a judge will have a difficult decision to make”.

It was not a clear-cut victory for any side, but one cautiously applauded by all.

“It’s a real step forward,” said David Butt, lawyer for N.S., the Toronto woman who was ordered to remove her niqab at a preliminary hearing.

“This walks a middle ground that balances two very important, competing rights”.

N.S. came forward in 2007 and accused her uncle and cousin of sexually abusing her as a child. When the case went to a preliminary hearing in 2008, she said she wanted to testify while wearing her niqab.

When the judge ruled against her, she took her case to the Ontario Court of Appeal in June.

In their 54-page decision, the three-judge appeal panel ruled that there needs to be a “case by case assessment” and for the first time set out guidelines for judges in these previously “uncharted waters”.

For N.S., the appeal court overturned her niqab ban and said she must be given a proper hearing to show why her religion requires her to cover all but her eyes.

The defence must also be allowed to call evidence on the

issue before the judge decides if she can testify wearing her veil or whether accommodations can be made for her testimony — such as an all female court.

“The court did not decide the crux issue of whether the niqab comes off or stays on,” said N.S.’s lawyer.

“On the other hand, the court has given us a very firm set of factors to guide us”.

The Criminal Lawyers’ Association had argued before that a witness can’t be properly cross-examined if their face is concealed but was satisfied with the ruling.

“It is a paradigmatic, Canadian decision insofar as it strikes a very workable compromise rather than making a choice between two important competing values,” noted association president Paul Burstein. “Time will tell”.

Tarek Fatah, founder of the Muslim Canadian Congress, was relieved the court of appeal did not grant an automatic right to give testimony behind the veil, which he insists is a political, not a religious, symbol.

But he was troubled the appeal court seemed to bend over backwards to accommodate women wearing a face covering many in the west see as backward and misogynistic.

“They do not think that Muslim women are women per se, but some kind of exotic species that they have to nurture in the laboratory that’s called Canada,” Fatah complained.

For its part, the appeal court wisely shied away from making a definitive ruling on a piece of cloth that continues to divide.

“The wearing of a niqab in public places is controversial in many countries including Canada,” Doherty wrote.

“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”.