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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.

  • Rahul Kushwah

    In the name of trying to accomodate all the different groups and to create a mosaic which toronto and largely canada has become, we are promoting religious fundamentalism. Imagine, a person born in Toronto decides to wear a niqab when she turns 20… what does that tell you??? Think about the extent of brainwashing which is still prevalent in certain segments of population within Toronto. It was absolutely correct for the French government to ban niqabs and Canada needs to follow suit before it is too late and we end up becoming a society like Saudi Arabia where women have no rights.

  • AE

    Face the accused.

  • Ken

    This should NOT be allowed.

  • mike

    Take all these people back where they came from! If you want to keep your barbaric traditions than stsy in your country. So I guess if they murder someone than they have the right to not remove there mask right???

  • hunh?

    @mike, what a stupid thing to say. the *bottom line* (not the last line) of your comments may have been to not allow the burka to be worn in such incidents but what a ridiculous and narrow-minded way of putting it.

  • Andie

    The issue of the veil in Islam is so complicated that (as is clearly shown in this article) even people who have experienced Islamic culture and religion their entire lives can’t come to an agreement on the basics. As far as I’m concerned, to ban any woman from wearing a veil is just as bad as forcing her to wear one, because you take away her right to choose for herself. It assumes that she is unable or unwilling to make such a decision herself. As a woman, I find that incredibly insulting. We know cigarettes and booze are bad for us, but we still allow people to buy & use these products because we respect the individual’s right to make decisions about their own well-being. I suggest everyone read Saba Mahmood’s work on the Islamic revival in Cairo, and how banning the veil has only worked to make it more popular. She discusses all of these (and countless other) points far more intelligently & eloquently than I ever could.

  • Jasmine

    To Rahul: What if the girl wants to wear a niqab without anyone brain washing her, then by banning the niqab her freedom of expression is being taken away. What about in other religions like Hinduism where women are taught to worship their husbands and if they don’t they are beaten to death by thier husbands or in laws. There have been cases like this in Canada. There is good and bad in very religion and society, we just have to take the goods and ignore or delete the bads. Toronto and Canada as a whole is known as multicultural because we are known to accomodate people from all society.

  • Rahul Kushwah

    It appears as if Jasmine herself has been wearing niqaab for a long time and is trying to justify it… I am not trying to bash any religion, no need to do that, the facts are out there… No sane individual would want to cover their whole body when it is scorching outside… If they are, then it is either than they have been brainwashed, forced or are mentally unstable… Canadian society should not adjust to ways of someone who enters the country… If someone does not like Canadian way of life then they simply do not need to enter the country… Its funny how this individual brings hinduism up, failing to realize that most of the gods that are worshiped in hinduism are female and in societies such as India one does see women in all walks of life, which is a stark contrast to middle eastern societes where even if a woman wants to step out of the house, she needs a written consent from her husband… a husband can keep as many wives but a wife is prohibited from doing so… sure if thats what ones call just then the individual needs counselling

  • Rahul Kushwah

    I agree with mike that if you want to keep your barbaric traditions alive, go back where you came from, no need to live in Canada

  • Teresa

    I don’t see any problem in anyone wearing a nekab as long as that is exclusively their choice. And in such a country like Canada its hard to believe that anyone is being forced to do so!!!
    I also think that accommodating to show the face when necessary for Id purposes or even if that person is testifying in court etc is totally reasonable. However to judge a person and say that if they are wearing nekab one of the following must apply :” If they are, then it is either than they have been brainwashed, forced or are mentally unstable” is totally stereotypical and being narrow minded which opposes the Canadian values from the start. Before going into inner feelings and motivation about why people are wearing nekab please go back to the basics of understanding “your” Canadian culture and values. Freedom of religion and speech is a key value in the Canadian culture ,multiculturalism is what makes Canada so great if you are not willing to accept that then maybe you should start wondering if you are Canadian to begin with!!! Did you ever ask a lady wearing a veil how she feels ? Why don’t you try to do sooooooo….. It seams to be that you have no understanding in this regards…. Please try to educate yourself about a religion from the right sources not by media not by midwives tales but by the true sources!! We should have tolerance towards each other whether we are wearing a veil or not!! It takes a great deal of courage to wear a veil when you know in your heart that there is a great deal of intolerance out there. A person who chooses to do so must have a strong conviction the least is to respect them in humanity and to educate ourselves before spreading false information which resulted from a impulse of emotions. The world doesn’t function on emotions it functions on facts !! Don’t go ask Babra walters how a muslim lady feels wearing a nekab or a scarf GO ask a MUSLIM WOMAN!!!
    Please don’t make assumptions on a minority !!! A lady wearing a veil is completely sticking to the Canadian Values. Anyone who holds proud to difference has honored Canada because of the great Tolerance Canada has. Removing that from the equation would clearly take much of what Canada’s worth!!!!!!!!

  • Jasmine

    You go Teresa! Beautifully written!

  • Teresa

    Wearing a burka by force goes against its purposes … There is no compulsion in religion…. Even A GREAT PROPHET , Prophet ibrahim could not impose his religion on his father nor Noah his son (peace be upon them) . I think the Canadian government and Canadians in general should be more concerned about people following their true religion instead of trying to ban something someone should have the right to do. banning the nekab will only bring more hatred and revolt in the

  • Teresa

    community .
    helping promote peace through dialogue and tolerance will bring societies together and together we can succeed !!!

  • N.S.

    Yes, it is I, N.S. I would simply like to set the record straight; I am NOT mentally unstable, have NOT been forced to wear my veil and have NOT been brainwashed. I applaud the persons out there who champion a person’s right to live the way they choose to live – considering the veil does not infringe on anyone’s rights. Forcing someone to choose between something that is held near and dear to their heart on account of the public’s misunderstandings about the matter is a slap in the face of the freedoms we enjoy here in Canada. I was born in this great country and believe in respecting other people’s rights. I hope ALL Canadians can muster enough courage and basic human decency to afford this respect to all fellow Canadians. I AM CANADIAN! Please stop remaining ignorant about this matter and as another post says, ask a MUSLIM WOMAN about how she feels about her veil – who knows perhaps you will learn something new and appreciate the woman for who she is and what she chooses. Take care and be safe.

  • Tarek Fatah

    NS, why is it so important for you to repeat time and agin that your were born in Canada. Do you believe those of us who were not born in Canada are of some inferior stock or impeded because of our place of origin?

    To suggest that you made the decision to wear the burka on your own is baloney. Unless you claim you received a revelation from Allah to wear this atrocious contraption, you were influenced by a book or person, dead or alive and that person has got to be a man, cos no no woman has ever been allowed in the history of Islam to write their opinions on Islamic jurisprudence.

    The niqab worn by Canadian-born Muslim women and converts to Islam is more a reflection of their contempt for western civilization than an act of religiosity. Its like showing the rest of us your middle finger.

    My 84-year old aunt, Naiyra Fatah who is interviewed in this article says it best when she said: “I hated the burka”.