ipolitics.ca by Natasha Bakht and Jordan Palmer 31 July 2014

They say justice delayed is justice denied. No one knows that better than ‘NS’, a Muslim woman forced to remove her niqab (full-face veil) in order to testify against two relatives she alleges sexually assaulted her as a child.

She has never deviated from her allegations. The case, initiated in Toronto in 2008, ended last week when the Crown prosecutor withdrew the case, citing “no realistic possibility of conviction.”

NS is understandably distraught that the matter will never reach a verdict. Six years of stress for her and the accused men — not to mention the cost to the taxpayer — and nothing to show for it. The accused are innocent until proven guilty and the Crown must act as an impartial servant of justice — but the treatment NS received highlights grave flaws in our justice system.

First, this case took an inordinate amount of time merely to determine whether NS could testify at the preliminary hearing wearing her veil, as mandated by her religious beliefs. After rulings by two provincial judges, two superior court judges, three court of appeal judges, and seven Supreme Court of Canada judges, the result for women like NS is … inconclusive. Niqabs are neither automatically accepted nor banned in Canadian courts, and judges may still take whatever measures they see fit.

Both judges who had to apply this muddy law denied NS the ability to follow her religious beliefs while testifying. Most of the judges in this case clung tightly to the belief that seeing the face is an important tool for credibility assessment. That belief flies in the face of much social science research saying the precise opposite: No one can reliably tell if someone is lying simply by looking at a facial expression.

Second, the withdrawal of charges at this late stage — after NS testified without her niqab at the preliminary hearing and the judge committed the case to trial — undermines the principle of public justice. In its decision to drop the case, the Crown cited “new information” — and refused to say what it was. NS and the accused are already protected by publication bans and cannot be named. If a Crown prosecutor is going to wield such awesome discretionary power to dismiss the case, should we as citizens not know more about what shaped his decision, especially as there is no recourse for NS? Courts are open to the public for a reason.

But these issues pale in comparison to the bigger problem. The anti-niqab aspects of the case likely have discouraged other niqab-wearing Canadian women from seeking justice in cases of sexual assault. Let’s remember that sexual assault is one of the most underreported crimes in this country — and when it is reported, it’s also the most likely to be tossed out by police based on the belief that it is ‘unfounded’.

The about-face by the Crown — made even more stinging by defence lawyers who sneered that the Crown’s decision supported their claim that NS’s allegations were “fabricated” — reminds sexual assault victims of how precarious their place in the legal system is. Sex assault cases that end in convictions tend to involve women and situations that are “believeable”—in other words white women who are assaulted by a stranger; Black and Aboriginal women fare poorly in such prosecutions. NS is Muslim and she wears the niqab, so she doesn’t fit the typical ‘victim’ stereotype, and is less likely to believed.

To chill the rights of sexual assault victims is to discourage them from coming forward. To discourage reporting is to allow impunity for sex crimes, a huge step backward for our legal system and society.

Natasha Bakht is an associate professor of law at the University of Ottawa. Jordan Palmer is a PhD candidate at the University of Ottawa’s faculty of law.