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Woman (not NS) stands posing in front of the camera wearing a niqab. For Illustrative purposes only. (Photo by mhrezaa on Unsplash)

Regina. v. NS

In 2007 a woman known as NS claimed that she was sexually assaulted by two men in her family during her childhood. During the preliminary inquiry, NS expressed her wish to testify wearing a niqab (face covering) for religious reasons. The men accused of the crime argued that not being able to see her full face interfered with their right to full answer and defence. The accused stated they felt that not being able to see NS’ full face would make it more difficult to determine if she was being truthful when she gave her testimony.

After hearing arguments from both parties, the judge found NS’s religious beliefs were not strong enough to interfere with the accused’s fair trial rights and ordered her to remove her niqab. NS challenged this decision and the issue went all the way to the Supreme Court of Canada.

The majority of the Supreme Court judges stated that there must be a just and proportionate balance between freedom of religion and trial fairness. They held that a woman in a criminal proceeding would be required to remove the niqab to prevent a serious risk to trial fairness, if it had been determined that there were no other reasonable alternatives that would prevent the risk. In their view, the benefits of requiring a woman to remove the niqab outweighed the negative effects of having her remove it. The Supreme Court of Canada rejected a blanket ruling on the niqab and held that these cases should be decided on an individual basis.

The charges against the two men were withdrawn when NS refused to testify with an uncovered face.

Global National - Supreme Court Rules on Niqab

Global News, "Supreme Court rules on niqab," YouTube. Added December 21, 2012

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Image: Dashminder Sedhev’s parents have been vindicated in their challenge to a private school’s ban on the turbans Sikhs wear. The boy, who is now 8, currently attends a public school. (Colin McConnell, 1988, Toronto Star Photo Archives)

Dashminder Sehdev v. Bayview Glen Junior Schools Ltd

On August 23, 1985, Hersharn Kaur Sehdev brought her son Dashminder for an enrollment interview at Bayview Glen School. Three days later, the interviewer called to say that Dashminder was academically qualified for admission but wearing a turban was inconsistent with the school’s strict uniform policy. Although wearing a turban is required by the Sikh religion, Dashminder was ultimately refused admission.

The Sehdevs, in their Human Rights Tribunal of Ontario hearing, alleged unlawful discrimination on the basis of creed, sex and ancestry. The judge decided that the primary issue was whether there was, and continued to be, discrimination based on creed, stating that sex and ancestry were not relevant to the case.

The judge ruled that Bayview Glen’s uniform policy constituted indirect discrimination, effectively excluding Sikhs. As a private organization, its Board of Directors could expressly enact and publish a policy that limited access to certain religious groups to the school. However, it could not inadvertently and insidiously discriminate through a uniform policy. Furthermore, a slight liberalization of the uniform policy would not in any way compromise the school’s objectives. Bayview Glen was thus ordered to cease and desist in administering its uniform policy so as to refuse admission to students on its basis, and was directed to extend equal treatment to all current and future students.

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