In its decision released today the Court ruled that a niqab-wearing sexual assault complainant may be permitted to wear her veil while being cross-examined by defence counsel. The Clinic, a counselling, legal and language interpretation agency based in Toronto, was one of three interveners that made oral submissions at the hearing of the appeal before the Supreme Court on December 8, 2011. The Clinic was the only women’s organization invited to make oral submissions as an intervener in the case and argued that compelling the removal of a complainant’s niqab would be a disincentive to the reporting of sexual assaults and impede access to justice for an already marginalized group.
“The Court in this case had a crucial role in defining the rights of women who have experienced sexual assault,” stated Amanda Dale, the Clinic’s Executive Director. “We wholeheartedly believe that requiring a Muslim woman to remove her niqab while testifying in the context of a sexual assault inquiry would be an unjustified and unjustifiable invasion of her personhood and privacy. This possibility will also exacerbate the barriers to access to justice that are already faced by women who have experienced sexual violence. ”
The majority of the Court found that the access to justice consideration is ”especially weighty in a sexual assault case such as this one” and that “he judge should also consider the broader societal harms of requiring a witness to remove the niqab in order to testify.” Justice Abella stated in her dissenting opinion that “the harmful effects of requiring a witness to remove her niqab, with the likely result that she will likely not testify, bring charges in the first place…is a significantly more harmful consequence than not being able to see a witness’ whole face”. “We believe that Justice Abella’s dissent captures the core concerns about the justice system held by many of our clients and we hope that her dissent will serve to guide courts and judges that are faced with these issues in future cases,” Dale concluded.
The Barbra Schlifer Commemorative Clinic was opened in memory of Barbra Teena Schlifer, a young lawyer who was brutally sexually assaulted and murdered on April 11, 1980, the day of her call to the Bar of Ontario. Her death sent shock waves across the country. Barbra’s friends, who were to be her law partners, along with many others, established the Clinic in her honour to commemorate her life and to make the difference that Barbra hoped to make as a lawyer.
The Barbra Schlifer Clinic offers legal help, counselling and language interpretation to women who have experienced violence. In 2011/12, the Clinic assisted over 4,000 women to build lives free from violence. Since its inception, it has assisted more than 50,000 women.
The Barbra Schlifer Commemorative Clinic was represented pro bono by Rahool Agarwal, Michael Kotrly and Vasuda Sinha of Norton Rose Canada LLP, and Brydie Bethell of Simcoe Chambers.