While this spring has multiplied laws and regulations prohibiting manifest to uncovered face, the supreme court has just insert into our law the general rule: a person invoking a “sincere” religious belief may conceal his face during a criminal trial.
The rapprochement between the two contexts (event and tribunal) is specious, we say. Rest that that judgment about n. s., Ontario young wearing the niqab, a full veil, has something really disturbing, including because it legitimate a symbol degrading to women.
No surprise that Quebec feminists are divided, and that the Court also is torn. Four justices in the majority, a (Ms. Abella) only for his part in defending the niqab in any occasion and two at the other end of the spectrum. The majority attempted to spare the goat and cabbage, set a middle course between “two extremes”, as stated by the Chief Justice Beverly McLachlin.
His compromise has exceptions, of course. The highest court, fond of ‘tests’ and criteria, set two “conditions” to be met by a judge who would claim the unveiling of a witness at a trial. The judge should first demonstrate that there is “a serious risk that the trial is unfair” If the face remains veiled. Then, the “beneficial effects of the obligation to remove the niqab” are “more important than its harmful effects. Then, it will have to assess the “sincerity” of religious belief and the effect of the niqab on the fairness of the trial. The judge must show that the conflict between the two rights is inevitable.
In other words, there is the general rule – Yes to the niqab — and exceptions. A significant burden is placed on the shoulders of the judge who may wish to advocate these same exceptions. Lebel and Rothstein JJ dissenting judges would have preferred reverse logic. They have called for “a clear prohibition to wear the niqab in all stages of the criminal trial. Witnesses who would have feared for their safety in unveiling could be otherwise protected. The courts have the expertise in this area, argue the dissidents. The strongest of these is that the trial is an “Act of communication with the general public”. However, shunning neither before a pleonasm, they say: “the wearing of the niqab does not promote acts of communication. It restricted them. “Worse, add,”he cut the witness certain aspects of communication acts [...]. The niqab subtracts the witness to a complete interaction with the parties, their lawyers, the judge and, if applicable, the jurors. »
Observers said they were reassured: he has had no fracture rock vs Quebec among the “Supreme” in this case. a Quebec, Marie Deschamps j., ends up with the majority. Populations, however, may end up with a division that will remind the kirpan case. Firstly, a majority in Quebec who would have liked a stronger secularism, a reaffirmation of the principle of equality between men and women. On the other hand, a majority in the rock, which will accommodate sophisticated of the Court decision.
For the Government of Quebec, this ruling made it clear that any Charter of secularism, commitment of the Parti Québécois, the future Québec Coalition shared in substance (see commitment 90), will be deemed unconstitutional. The liberal party, had defended the number 94, buried, Bill that would have prohibited any exchange of public service with a covered face.
In short, if Quebec wants to do so, it will be obliged to invoke the notwithstanding clause. In our opinion, should not prevent to do so. This clause exists. A narrow majority of supreme court judges has a monopoly or the interpretation of rights or democracy.