Court ruling fires British debate on Muslim veils

[The Minsky Moment]

So BB - let's say a court lets the witness testify in the niqab, using the reasoning of the minority.

Should defense counsel be allowed to argue to the jury that in assessing the credibility that witness' testimony, the jury should consider that they didn't have a chance to view her demeanor, as opposed to other witnesses.?

[Barrister]

So BB - let's say a court lets the witness testify in the niqab, using the reasoning of the minority.

Should defense counsel be allowed to argue to the jury that in assessing the credibility that witness' testimony, the jury should consider that they didn't have a chance to view her demeanor, as opposed to other witnesses.?

I would say yes, together with the already existing warning about the questionable usefulness of demeanour evidence to begin with.

Unlike the UK case (which as Yi pointed out is weird) these kinds of cases usually come up when the person wearing the niqab has been victimized.  So try and empower the victim.  Tell her "you have the right to wear the Niqab.  It's up to you.  But if you do take it off it the jury might find you more credible'.

[The Brain]

Is it about religious freedom or cultural freedom? The credibility of a person who wears a mask because the magic sky fairy told her to is fairly low. The credibility of a person who wears a mask because she wants to is higher.

[Zanza]

First of all there is no hierarchy of rights.  Due process is not more, or less, important that religious freedom.

The judge in the ruling seems to establish a hierarchy of rights and our constitutional judges also seem to often weigh conflicting rights and make decisions on which right trumps which.

[grumbler]

I know it is wrong, but I can't help having my opinion colored by the recency of her conversion/donning of the niqab.

I don't think it's wrong at all.  It's difficult as all hell to do, but judges have some responsibility to determine just how honestly the subject believes in.

Except that, if the judge is right, then no amount of belief would justify her wearing the niqab during testimony.  But I am with Garbo that the religious conversion all seemed very convenient, and I am glad she was shot down.

[Barrister]

First of all there is no hierarchy of rights.  Due process is not more, or less, important that religious freedom.

The judge in the ruling seems to establish a hierarchy of rights and our constitutional judges also seem to often weigh conflicting rights and make decisions on which right trumps which.

Hmm... interesting.  I hadn't actually read the UK decision, and skipped right to the case I knew well - R v NS.

However it seems that the judge in this case actually cites R v NS with approval, but makes the following observation:

Valuable assistance is to be found in the judgment of the Supreme Court of
Canada in R. v. NS, 2012 SCC 72, [2012] 3 S.C.R. 726, and below, I gratefully adopt
some of the propositions laid down in that case.  But the decision must be approached
5 with caution with respect to the issue now before me, for two reasons.  First, the case
concerned the wearing of a niqaab, not by a defendant, but by a prosecution witness,
which as I have indicated above, may raise different and challenging issues.  Second,
the right to freedom of conscience and religion under s.2(a) of the Canadian Charter,
on which the witness in NS relied in claiming that she was entitled to wear the niqaab
while giving evidence, appears to be a primary constitutional right in Canada.  As
such, it appears to be entitled, under Canadian law, to far greater weight in the balance
of conflicting interests than the qualified right of manifestation  of religious belief
under art. 9 of the Convention, on which reliance is placed in this case.  Indeed, under
Canadian law, it may be equal in status to the right to a fair trial.

So he seems to imply that in the UK, the manifestation of religious belief is NOT equal in status to the right to a fair trial.

But I still think trying to create a hierarchy of rights is a terrible idea, because as soon as you say one right is more important than another, then you have very thoroughly denigrated that lesser right.  Then, any violation of that right, no matter how severe, can be justified by pointing to even trivial implications for the more important right.

[crazy canuck]

So he seems to imply that in the UK, the manifestation of religious belief is NOT equal in status to the right to a fair trial.

But I still think trying to create a hierarchy of rights is a terrible idea, because as soon as you say one right is more important than another, then you have very thoroughly denigrated that lesser right.  Then, any violation of that right, no matter how severe, can be justified by pointing to even trivial implications for the more important right.

No, all he was saying is that the right the Canadian court was considering is a Charter right and that Charter rights are supreme.  In the UK he was considering a right that is not enshrined with the same kinds of constitutional protections.  His analysis on that point was correct.

[Barrister]

I know it is wrong, but I can't help having my opinion colored by the recency of her conversion/donning of the niqab.

I don't think it's wrong at all.  It's difficult as all hell to do, but judges have some responsibility to determine just how honestly the subject believes in.

Except that, if the judge is right, then no amount of belief would justify her wearing the niqab during testimony.  But I am with Garbo that the religious conversion all seemed very convenient, and I am glad she was shot down.

This judge says that, despite the very recency of the conversion, he declined to make any inquiry as to the authenticity of her belief.  Which I think went to the ruling he ultimately wanted to make.

Hmm... just as I was taken with the dissent in NS, the judge here was taken with the concurring judgment of LeBel, which says Niqabs should be completely banned in courtrooms.

[Barrister]

So he seems to imply that in the UK, the manifestation of religious belief is NOT equal in status to the right to a fair trial.

But I still think trying to create a hierarchy of rights is a terrible idea, because as soon as you say one right is more important than another, then you have very thoroughly denigrated that lesser right.  Then, any violation of that right, no matter how severe, can be justified by pointing to even trivial implications for the more important right.

No, all he was saying is that the right the Canadian court was considering is a Charter right and that Charter rights are supreme.  In the UK he was considering a right that is not enshrined with the same kinds of constitutional protections.  His analysis on that point was correct.

Except that, given the UK's unwritten constitution, the right to a fair trial has precisely the same level of protection.

[crazy canuck]

So he seems to imply that in the UK, the manifestation of religious belief is NOT equal in status to the right to a fair trial.

But I still think trying to create a hierarchy of rights is a terrible idea, because as soon as you say one right is more important than another, then you have very thoroughly denigrated that lesser right.  Then, any violation of that right, no matter how severe, can be justified by pointing to even trivial implications for the more important right.

No, all he was saying is that the right the Canadian court was considering is a Charter right and that Charter rights are supreme.  In the UK he was considering a right that is not enshrined with the same kinds of constitutional protections.  His analysis on that point was correct.

Except that, given the UK's unwritten constitution, the right to a fair trial has precisely the same level of protection.

You are missing the point.  The Religious protection under the Charter is not the same.

[Barrister]

I will give the judge this - he raises one interesting point that I had not considered (but unfortunately, he is not able to answer).

How, exactly, do full on shari'a courts, following islamic law, deal with women wearing niqabs?  The judge then does some web searches which might indicate they do, in fact, ask the women to remove the niqab.

[Zanza]

But I still think trying to create a hierarchy of rights is a terrible idea, because as soon as you say one right is more important than another, then you have very thoroughly denigrated that lesser right.  Then, any violation of that right, no matter how severe, can be justified by pointing to even trivial implications for the more important right.

From what I can tell, our constitutional judges never establish an absolute hierarchy that is valid in all contexts, but they often put more weight on one or the other right when two conflict in a given, case-specific context. From my understanding that's what constitutional judges are for. And proportionality obviously always plays a role, so a trivial implication for one right does never invalidate the other. The idea is of course to always protect both rights as far as possible.

[Barrister]

But I still think trying to create a hierarchy of rights is a terrible idea, because as soon as you say one right is more important than another, then you have very thoroughly denigrated that lesser right.  Then, any violation of that right, no matter how severe, can be justified by pointing to even trivial implications for the more important right.

From what I can tell, our constitutional judges never establish an absolute hierarchy that is valid in all contexts, but they often put more weight on one or the other right when two conflict in a given, case-specific context. From my understanding that's what constitutional judges are for. And proportionality obviously always plays a role, so a trivial implication for one right does never invalidate the other. The idea is of course to always protect both rights as far as possible.

And I, of course, completely agree with that approach.  When rights come into conflict, as they inevitably do, you want to protect all rights as much as possible.

[Ed Anger]

I'm wearing a Batman mask.

[Jacob]

I'm wearing a Batman mask.

How is your sex-life relevant to this discussion?