Posted: Sat Dec 22, 2012 8:28 am Post subject: David Frum: The Supreme Court’s niqab ruling is a supremely
David Frum: The Supreme Court’s niqab ruling is a supremely ambiguous decision
If it’s your job to clean the room, you shouldn’t leave a bigger mess than you started with.
But that alas is exactly what the Supreme Court of Canada has done with its decision in the niqab case, more formally known as R. v. N.S.
The reason to have a Supreme Court is to lay down rules of law that lower courts can follow. When the high court answers a yes-or-no question as, “you go figure it out,” it abdicates its responsibility and wastes everybody’s time.
In the niqab case, the Supreme Court faced a painful problem. How should courts reconcile the following three conflicting principles?
1. The Canadian legal tradition requires an accuser to face the accused in open court. The word “face” is literal. Courts are often called upon to assess credibility. Human beings determine the credibility, not only by the words said, but the body language and facial expressions that accompany those words.
2. Canada also accords wide leeway to religious belief. Some versions of Islam prescribe that women are required to cover their faces in public places, including court rooms. While other Islamic authorities dispute this belief, it is not the business of the courts of Canada to decide what is and what is not appropriately Islamic.
3. Canadians are generally mistrustful of rules that subordinate or demean women. Most of us would agree that veiling does just that. Veiling takes for granted that women are sexual objects first and foremost, and assigns to women all the onus and burden of preventing sexual misconduct.
Tough problems. So what’s the answer?
The answer from the court amounts to an order to lower courts to … keep guessing. The high court will tell them when they are getting warmer, and when they are getting colder. Sometimes niqab in court will be OK. Sometimes niqab will not be OK. Which is which will depend on the answers to a series of intricate and even unanswerable questions:
1. Is the witness who is requesting to be niqabbed sincere in her religious belief?
2. Will the niqab create a serious risk to trial fairness?
3. Might the conflict between trial fairness and religious belief be resolved some other way than by niqab removal?
And then — my favourite — Question 4: “Do the salutary effects of requiring the witness to remove the niqab outweigh the deleterious effects of doing so?”
I like question 4 because it turns out to contain within itself an additional series of a half-dozen questions, each of them as murky and ultimately unknowable as the first three listed above.
In the words of Chief Justice Beverly McLachlin: “The judge should consider whether the witness’s evidence is peripheral or central to the case, the extent to which effective cross-examination and credibility assessment of the witness are central to the case, and the nature of the proceedings.”
In pretending to answer the question, the Chief Justice merely restates the question. This isn’t law. It’s a Jorge Luis Borges short story about the unknowability of the human condition.
Think for a minute about the implications of McLachlin’s first test. Is it seriously suggested that every request to wear a niqab in court should begin with an investigation of the sincerity of the requester’s religious faith? How can we know? How can we be sure?
True, the witness was seen eating pork last month. But that was last month! Didn’t the angel Gabriel appear to Muhammad “unexpectedly,” in the words of the hadith? Why can’t conversion come to any of us just as suddenly? Go prove that it didn’t.
When lower courts begin applying this tangle of conditional rules to actual cases before them, they are likely to arrive at answers that higher courts will regard as “wrong.” The answers will be appealed, reversed, then appealed again, and maybe reversed again. Any request to wear niqab could potentially sidetrack even the most open-and-shut case into a spiral of preliminary procedural appeals. That will open some fascinating possibilities for any accused who might benefit from delay.
Society needs rules to function; the clearer the better. Multi-part balancing tests aren’t “rules.” They are invitations to social conflict. Canada needed a “yes” or “no” from its Supreme Court. A decisive “no” to niqab would have been preferable, but even a “yes” would have been tolerable, if undesirable. Instead, the Supreme Court of Canada failed to do its job and earn its pay.
These are the folks who made aboringinal Canadians a 'race' apart ... leaving a legal mess that might take a century to untangle.
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David Frum: The Supreme Court’s niqab ruling is a supremely