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Veils of ignorance

How the Supreme Court of Canada came to render Muslim women outlaws (sometimes) – and what it should have done instead

by Gareth Morley

19_Aulia_Halimatussadiah_flickrWhile visiting London in the summer of 1857, the Baron Carl de Gleichen, a man of complex nationality and advanced views, was set upon by denizens of the Victorian underworld and robbed. His assailants were caught and brought before the Marlborough Street Police Court. However, because the baron would not say he believed in a future state after death in which he would be “rewarded or punished according to his deserts,” they were set free. At English common law, the baron could not take an oath if he did not think a supernatural force would punish him for breaking it,1 and since he was the only witness, there was therefore no evidence with which to convict.

In 1992, an Ontario high school student – known to us as “N.S.” – told a trusted teacher that she had been repeatedly raped by her cousin and uncle from the age of six. Her family did not want to take any action and the police did not lay charges. It is hard to imagine N.S. had the self-confidence generations of privilege and freethinking had bred into the baron. Fifteen years later, though, she tried again. A Crown prosecutor was sufficiently persuaded of the plausibility of her evidence to allow charges to proceed. By this time, N.S. had developed the religious conviction that she must wear a niqab, a veil that covers her entire face other than her eyes, when in the presence of men outside her direct family.

Although they attended the same mosque as N.S., the accused men asked for a court order that N.S. remove the niqab while testifying. They argued that only by seeing her face could the judge or jury tell whether she was lying. As a result of a complex decision released by a divided Supreme Court of Canada in 2012, we do not know whether N.S. will be compelled to choose between obeying her religious convictions and testifying against her alleged assailants.2 On the basis of the Supreme Court decision, an Ontario Court judge has decided that N.S. must remove her veil to testify; she plans to appeal. In any case, it is clear that some Muslim women will not be allowed to testify in Canadian courts if they will not show their faces.

Religious belief and the competence of witnesses

Google remembers Baron de Gleichen today because his treatment by the English criminal justice system outraged John Stuart Mill:

This refusal of redress took place in virtue of the legal doctrine, that no person can be allowed to give evidence in a court of justice, who does not profess belief in a God (any god is sufficient) and in a future state; which is equivalent to declaring such persons to be outlaws, excluded from the protection of the tribunals; who may not only be robbed or assaulted with impunity, if no one but themselves, or persons of similar opinions, be present, but any one else may be robbed or assaulted with impunity, if the proof of the fact depends on their evidence … Under pretence that atheists must be liars, [this rule] admits the testimony of all atheists who are willing to lie, and rejects only those who brave the obloquy of publicly confessing a detested creed rather than affirm a falsehood.3

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About the Author

Gareth Morley
Gareth Morley is a litigator with the British Columbia Ministry of Attorney General. (All opinions expressed are his alone, and do not reflect the views of the Ministry of Attorney General.)




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