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Is a Toronto woman’s right to testify in a niqab an unreasonable accomodation?

A case involving a Toronto woman’s right to testify in a niqab is now headed for the Supreme Court. Maybe it’s time to acknowledge that some accommodations are just plain unreasonable

Veiled Threat

(Image: Jillian Tamaki)

Naiyra Fatah smiles when she recalls the year she first started wearing a burka, the Islamic garment that’s the sartorial equivalent of a tent. She was 13, and she loved cracking up her stepsister, then 15, as they walked to Lady McLaughlin Girls High School in Lahore.

It wasn’t easy clowning around when neither sister could see the other’s face. “So I would suck the fabric in through my mouth,” recalls Fatah, who is now 84. “My sister would always laugh so hard she would drop to the sidewalk.” Seeing my puzzled look, the elderly woman tosses a filmy floral scarf over her head and demonstrates. The effect is hilarious: a flowery ghost with a mouth that resembles the wrong end of the alimentary canal.

We’re sitting side by side on a brown leather couch in Fatah’s Scarborough living room. On this rainy morning, she’s wearing a gauzy flower-print turquoise tunic known as a kameez, over baggy turquoise pleated pants called shalwar. The matching scarf—the one she just sucked into her mouth—is known as a dupatta and is draped over her shoulder.

I had sought Fatah out because I was curious to know what it’s like to wear a burka. I’m even more curious as to why she took hers off, 70 years ago and counting. Islamic veils—especially the burka and the niqab, both of which cover a woman’s face—continue to stir debate in Canada and abroad, especially when it comes to accessing government services and institutions. In six months, the Supreme Court will consider the case of an alleged sexual assault victim in Toronto (known as N.S.) who wants to wear her niqab while she’s in the witness box. It’s a case that pits Charter rights against each other: religious freedom and the privacy and security of a sexual assault complainant against gender equality and the rights of defendants in criminal trials to face their accusers. There is the potential for a far-reaching precedent that could change our legal system.

In Quebec, the veil has become a flashpoint. The provincial government has introduced a bill (now under study at the National Assembly) requiring that people “show their face during the delivery of [government] services.” This past spring, France became the first country in Europe to ban face veils in all public places. Belgium’s lower house of parliament has approved legislation banning “clothing that hides the face”; it awaits a vote in the upper house. Last year, in the Italian city of Novara, a Tunisian woman who was waiting in line at the post office was fined 500 euros under a 1975 anti-terrorism law prohibiting any clothing that hides a person’s face inside public buildings, schools or hospitals.

In the Middle East, Syria banned face-covering veils on university campuses last July; the ban was lifted in April to appease Muslim conservatives. And the Turkish government has long banned head scarves of any type for public sector workers, including teachers, lawyers and parliamentarians. To obtain an official document such as a driver’s licence, passport or university ID, a woman has to be photographed showing her hair and neck.

Meanwhile, here in the multi-ethnic mosaic that is Toronto, we tacitly accept the veil in the name of religious freedom. But where’s the freedom in a cultural practice that demands women cover their faces? Consider the misogyny of these garments: they have no mouth. A woman who’s wearing one can’t eat or drink. Talking would be muffled. The message: don’t speak. In a liberal democracy, we should always rein in so-called religious practices when they infringe on other human rights.

Fatah was born outside Lahore in 1926, the youngest of six children. She was two years old when her father, a lawyer, died of cholera. Her brothers, who were much older, supported the family. As a little girl, she wore a shalwar kameez. She remembers her mother pinning the dupatta around her neck to keep it from falling off when she played. But when she turned 13 and her stepsister turned 15, the neighbours complained. “They told my mother and my eldest brother, ‘Your sisters are getting mature. They’re not wearing a burka and we don’t like it.’”

From then on, the sisters wore burkas to and from school, hanging them on a rack just inside the school entrance. Her sister’s was dark brown; hers was light brown. There were two styles to choose from: the “shuttlecock” and the “letterbox,” each with a mesh-covered slit for the eyes. The “shuttlecock” version was just as it sounds—a cone-shaped garment that hangs from the head and falls to the ankles. Fatah and her sister chose the other style, the “letterbox,” because it had sleeves. But inside it was dark. “You can’t read. You can’t see what’s to your side. I felt like a trapped animal. I couldn’t breathe. I hated the burka.”

When she was 15 and in Grade 9, Fatah was betrothed to a distant cousin more than twice her age. It wasn’t until they were married and had moved to Bombay that her husband brought up her burka. “He said to me, ‘Take it off. The people we mix with don’t wear burkas.’ ” Her husband cut it with scissors and threw it in the garbage. I ask how that made her feel. She looks at me like it’s the stupidest question she’s ever heard. “I was very happy,” she says. “I could breathe.” That this was one patriarchal decision trumping another didn’t matter to Fatah. Either way, the choice was her husband’s to make.

N.S., the woman who wants to wear her niqab in the witness box, was born in Toronto. She began wearing a veil in 2003, when she was in her 20s. The court case—she has accused two men of sexual assault, a male relative and a family friend—has been stuck at the preliminary inquiry stage since 2008. The judge, after weighing N.S.’s desire to testify in her niqab against the defendants’ right to face their accuser, ordered her to remove the garment. N.S. and her lawyer, David Butt, appealed. Both the Superior Court and the Court of Appeal sent it back to the trial judge, with instructions that he reconsider testimony concerning the genuineness of N.S.’s religious beliefs.

Butt says if witnesses are forced to remove their veils there will be consequences, such as a drop in the reporting of sexual assaults. He adds that the Supreme Court will likely not comment on the validity of a religious practice—whether a face veil or a ceremonial dagger or a crucifix. Nor does the court care how long you’ve held your religious beliefs; it only asks that they be sincere. Then it will balance that belief against other Charter rights.

In my view, there is something wrong with a system that relies on a judge’s ability to assess the “genuineness” of someone’s religious beliefs—especially when his determination risks placing a higher value on a practice that is sexist and oppressive.

Fatah hadn’t heard about the case until I mentioned it. I ask if she thinks N.S. should remove her veil. “She should face her accused,” she says flatly. It occurs to me that Fatah and N.S. were subjected to the same cultural imperative to cover up—despite being separated by decades and continents. The irony is that Fatah was liberated from her burka around 70 years ago in India, while N.S. is “free” to wear her niqab here in Toronto.