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Accommodating religious beliefs in our courtrooms

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Although it is rare for the Commission to intervene in a criminal case, it will do so when human rights issues arise that are of greater public interest. This is why the OHRC applied to intervene at the Superior Court of Ontario, which was hearing the judicial review application of a woman who was ordered to remove her niqab when testifying at a preliminary hearing in a sexual assault case. A niqab is a veil for covering the hair and face except for the eyes that is worn by some Muslim women.

This is the first time this issue has arisen in a criminal case in Ontario, and the decision made will be an important legal precedent for the nature and scope of accommodation based on religious beliefs.

This case involves a possible conflict between the right of religious freedom and the defendants’ rights under the Charter of Rights and Freedoms to “full answer and defence” of the charges against them. The Commission felt the lower court did not follow a proper process for considering the religious rights of the witness.

The Superior Court granted the Commission’s request to intervene, overturned the preliminary inquiry judge’s order that the witness remove her niqab, and provided instructions to the preliminary court judge for reconsidering the niqab issue. The Commission will continue to monitor this case as it continues in the summer of 2009.

This is the same emphasis on appropriate accommodation processes and measures that the OHRC has successfully argued in other cases, including Syndicat Northcrest v. Amselem [2004] and Multani v. Commission Scolaire Marguerite-Bourgeoys [2006].

In Amselem, orthodox Jewish residents of a Montreal condominium wanted to build a succah, or religious hut, on their balconies during the annual nine-day religious festival of Succot. Other condominium owners claimed that this religious belief conflicted with their right to peaceful enjoyment and free disposition of property under the Quebec Charter of Human Rights and Freedoms. The Supreme Court of Canada did not agree, and ruled in favour of the Jewish residents.

In Multani, a Sikh youth sincerely believed that he was required to carry his kirpan, or religious dagger, at all times, including at school, albeit in a discreet and restricted fashion. The Supreme Court of Canada found that this religious belief did not unduly conflict with the school’s safety concerns about weapons on school property.

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