Thursday, March 05, 2009

Zerby On The Niqab Broad

I haven't done much thinking re the case of the lady who wants to wear a Niqab while testifying in a sexual assault trial. Antonia Zerbisias has, and since the legal arguments on the matter have been put off until the 13th of this month, her Feb. 11 post still seems relevant:

I have sent the decision -- which I have in PDF and so it's not postable here -- around to friends who work for the Crown, who are defence lawyers and who sit on the bench.

Every single one of them agrees (not for attribution) that Ontario Court Justice Norris Weisman's decision will probably not stand.


On the one hand, although demeanour alone cannot be taken into account, the demeanour of a witness can be used in conjunction with the trier of fact's assessment of all the evidence and in the full context of the trial. This is especially the situation in sexual assault cases where the main issue is who is more credible: the Complainant or the Accused.

On the other hand, the complainant is asserting her freedom of religion charter rights to wear the niqab. In addition courts have said that witnesses (whether they are children or adults) can testify behind a screen or to wear a disguise where it is in the best interest of justice and that this does not offend an accused person's Charter right to a fair trial.

So there you have it.


Robert McClelland said...

Here's the relevant section of the criminal code.

3) Remote or Screened Testimony

At present, section 486(2.1) allows the court, in the trial of most sexual offences, to order that a witness who is under 18, or who may have difficulty communicating evidence by reason of a mental or physical disability, may testify from outside the courtroom or behind a screen, if the judge or justice considers it “necessary to obtain a full and candid account of the acts complained of.” New section 486.2(1) extends the courts’ authority to make such an order for the benefit of such witnesses during any proceedings and will require the court to make such an order, where requested, unless the judge or justice “is of the opinion that the order would interfere with the proper administration of justice.” Furthermore, new section 486.2(2) allows such an order for the benefit of any witness, if the judge or justice considers it “necessary to obtain a full and candid account from the witness.” Once again, the judge or justice would make that determination having regard to the age of the witness, the presence or absence of mental or physical disability, the nature of the offence, the nature of any relationship between the witness and the accused, and any other circumstances considered relevant.

Jacob said...

The screen prevents the WITNESS from seeing the defendant, not the other way around.

Zerbisias wrong about something? Crazy I know.