Friday, April 19, 2013

Veils in Court

I find this story interesting and one that might be important to comment on:

First test of Supreme Court's new face-veil rules imminent - Canada - CBC News:

The issue is one that I find a bit odd, to be honest, in the sense that I do not understand why some people oppose accommodating women who wear veil for religious reasons. I understand that some of the opposition to veils is driven by bigotry and some by ignorance. But exactly why this is even a matter of debate is something that confuses me -- unless there are far more ignorant and bigoted people out there than I think -- because, frankly, it does not seem like much of an issue. 

Why is not not much of an issue: what do I care whether or not a person wears a veil? Seriously ... I'm asking: why should I care? I am not trying to be flippant here. The bigger point is this: if the action another person takes is of no trouble or consequence to me, what right do I have to say something about it?  This is, I think, a basic tenant of liberal democracy, is it not? If my neighbour wears a Montreal Canadiens jersey to bed ... what trouble is that to me? I might not like the Canadians but ... so what? Surely my neighbour has the right to wear his jersey around his house or out in the street or on the bus or to class, should he so desire.  

Bear with me because I am trying to make a point and not just sound like I am ranting. The point is actually twofold:

1. In a free and democratic society, surely how another person chooses to dress is not a matter of my concern. It is a matter of individual concern, as is, I think, their rationale for dressing a certain way. In a liberal democratic society, the choice of clothing defaults to the individual as much as possible (I do recognize that there are exceptions such as dress codes at some places of employment that might be required for safety or health reasons).

2. Surely, this is a principle that we want to defend (as opposed to question). Surely, we do not want the state in the regulation of people's dress business. Surely, allowing for those important exceptions such as police officers who are on the job, we don't want the government telling us how to dress. Surely, in fact, that is a sign of totalitarianism on many science fictions shows! 

Now, allowing that this issue might be more complicated then I am making it seem, I want to direct attention to my key point: the argument that I am making in defense of veils has nothing to do with religion. This is the problem I often have with many of these discussions. They are often framed as the "religious rights of newcomers" versus ... well .... I don't know what but ... something. A lot of people make that point -- this is about religious rights -- but, by and large, it is not. An individual's rationale for how they dress can be religious. I've met a many people in my life who dress a certain way for religious reasons. But, I've met many many many more people who dress the way they do because of their personal taste. Both sides in this debate get this wrong: those who defend veils and those who oppose them. To say again ... this is not a matter of religion but rather a question of whether or not we want the government telling us how to dress. I strongly suspect most people do not. 

But, some people might say, there are instances where a woman's face needs to be seen. Perhaps. Let us not dismiss that out of hand but ... how many? The argument that she needed to remove her veil when testifying so that they confused could have a fair trial is bumpkis. According to the story I linked above: "he lawyers for the accused say they cannot get a fair trial unless they, and the court, can see her facial expressions as she testifies." What utter crap. Anyone who is making up their minds in a legal  case on the basis of someone's facial expression is an idiot and should not be involved in the trial. I know what I am speaking of: my wife is a crown prosecutor and I call you that neither she nor the police officers with which she works rely on something as easy to manipulate as a facial expression (trained experts might be able to tell the difference but how many of you reading this blog have training in this. The guy on _Lie to Me_ had a Ph D, remember). My wife relies on evidence. This can create problems. Sometimes if there is not enough evidence, she will elect not to prosecute a case even if she believes that the accused in guilty. That is the nature of our system and a discussion for another day. The point being that she does not look at someone and say "ah ... your facial expression is X so we will prosecute you." The judge does not look at a witness and say "your facial expression was Y so I will disregard your testimony." A judge might disregard testimony because it was contradictory, because it was not believable (say contradicted by facts in evidence), because the witness was a known liar, because the witness changed their story. But, they do not disregard testimony because of facial expressions. Don't believe me ... go look it up. These judgments are actually written down. You can get a lot of them online or, if you live in a larger place that has a law library, in law reports. You will hunt in vane, I promise you, for a judge who writes in his or her reason for judgement that they made a decision because of a facial expression. 

But, someone might now be saying, we know facial expressions influence people so surely it must influence judges. Do we know that? In extreme cases, sure. But we also know that a whole bunch of factors influence people's perceptions from hair colour to lack of sleep. Yet, we do not make them reasons for judgement in legal proceedings. No matter how tired a judge is, he or she must judge on the basis of evidence and  the law, not because they want to get out and take a nap. The fact that you or I am influenced by something in our daily life does not mean that it is a good reasons to introduce that influence as a legal principle or ... more importantly, that we cannot elide that influence -- if, say, a member of a jury -- and make a reasoned judgement on the basis of evidence. It does not always happen. Juries make mistakes; that is why we maintain due process and appeals. That is why one should not engage in a rush to judgement. But, think of all the trials held in Canada every day and think of how many decisions are actually overturned. I might like hamburgers but I will not acquit someone of a crime because he or she liked hamburgers too. 

My point, of course, is that there the argument that this woman needed to remove her veil so that the accused could have a fair trial is simply not true. I don't fault the lawyer for making the argument. His or her job is to make the best argument for their client that they can within the boundaries of the law. Lawyers will try all kinds of things. The silly thing her is not that a defense lawyer made up some way to try to help his clients. The silly thing is that others have taken his or her argument seriously. 

According to the CBC article, the Supreme Court sets out a test with regard to trials and whether or not a woman will have to remove her veil when offering testimony. The article specifies the test as follows:

  • Does she have a sincere belief in her religion?
  • Does wearing a veil create a serious risk to trial fairness?
  • Is there any other way to accommodate her?
  • If no, does what the court called the "salutary" effects of ordering her to remove her niqab outweigh the "deleterious" effects of doing that?

This strikes me as a reasonable test. Point 1 ... sure, if a person is engaged in a shame ... then why not have them remove their veil. Wearing it is not an exercise in any right or freedom but, in fact, makes a mockery of those who wear veils for serious and deeply felt religious reasons.  

Point 2 is the point I just made. I might be able to think up a counter example to the one I gave above but I don't want to prolong this blog. The vast, vast, vast majority of the time there is no issue of fairness at stake in a woman wearing a veil. 

Point 3 and if there were ... what can we do to accommodate her concerns. This might be something that someone does not like: "why should we accommodate her? Why should she not be like us?" Because we live in a democratic society. Democratic societies always look to accommodate individual differences where they can. Most people, in fact, as for accommodations in one or another all the time. Person X needs to get off work early to go to the dentist. Person Y needs to get off early to volunteer for his kids school field trip. I asked for accommodation a month ago. I was asked to do something at work (perhaps a bit more then a a month ago) over the weekend. I and others were given a task on Friday which we were asked to have completed by Monday. I protested to my boss stating that I worked 9 to 5. Saturday was family day and I did not see why I should have to give that up. I'm Christian and so for religious reasons Sunday was out. My boss did not complain but instead said "you're right. We'll get that changed to later in the week." He might have thought I was a cry baby. I don't know but he earned my respect by responding in a fair and reasoned and even way looking to accommodate differences while getting work done. So, before we are too quick to condemn accommodation ... think about how many times you have asked someone for a favour. That is accommodation. You are, in effect, saying "treat me differently" and there is nothing wrong with that. 

The last point is a balance argument: if forcing the removal of a veil serves no good purpose  ... why do it. 

So, to sum up, the SCC has set out a reasonable test. If we pause and think this is not an issue that really deserves the time and effort that has been put into it. There really is no good reason most of the time to compel a person to not wear a veil so .... why would we? 

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