Toronto, Canada - The Ontario Human Rights Commission is arguing that a provincial court judge failed to recognize the religious freedoms of a Muslim woman when he ordered her to testify at a sexual assault trial without a veil known as a niqab.
The government agency is asking for special permission to be allowed to intervene at a Superior Court proceeding hearing an appeal of the lower court decision because of its 45 years of "expertise" in the area of human rights.
"The commission can offer the court assistance and expertise in the area of accommodation particularly in relation to discrimination based on creed or religious belief," states an affidavit by Barbara Hall, chief commissioner of the human rights body.
The Superior Court hearing is scheduled to begin this morning in Toronto.
The hearing stems from a ruling last fall by provincial court Justice Norris Weisman.
He ruled that the woman must remove the veil that covers everything but her eyes while testifying at the preliminary hearing of two men accused of sexually assaulting her.
Lawyers representing the two men argued they should be permitted to see the demeanour of the woman while she testified, as part of their right to a fair trial. The defence suggested that demeanour would help determine the credibility of the woman.
The prosecution responded that the woman ought to be permitted to wear an article of "religious dress" if that was her preference.
While he observed that it was an "admittedly difficult decision," Judge Weisman noted that the witness had a photo taken for her driver's licence without a niqab. The photo was taken by a female employee, but "numerous males in modern society" might see the non-veiled picture.
"I find that the complainant's religious belief is not that strong," concluded Judge Weisman, who ruled that the woman should have to testify without her niqab.
The woman appealed the ruling to the Superior Court and last week the Human Rights Commission filed documents seeking to be allowed to participate in the hearing.
"The court had a duty to accommodate her religious beliefs and failed, procedurally and substantively to do so," the commission argues. Ordering the removal of the niqab was a "drastic measure" that was not necessary to balance the rights of the defendants, the human rights agency suggests.
The Superior Court hearing this morning before Justice Frank Marrocco will only determine whether the woman may wear the niqab at the sexual assault trial of the two accused, although it could be used as a precedent in other cases.
It is unusual for an outside party such as a government agency to be permitted to intervene in a criminal trial.
The commission says it can assist the court in interpreting the Ontario Human Rights Code and help explain issues of human rights.
"The commission's intention, if it were allowed to intervene, would be to articulate the current state of the law in respect of the duty to accommodate religious beliefs and practices and to explain how Mr. Justice Weisman's ruling is inconsistent with the current state of the law," the government agency argues.