In 2009, the Superior Court of Ontario granted the OHRC’s request to intervene in a judicial review application of a woman who was ordered to remove her niqab when testifying at a preliminary hearing in a sexual assault case.
This case involves a possible conflict between the right to religious freedom and a defendant’s right, under the Charter of Rights and Freedoms, to “full answer and defence” of the charges against them. The OHRC argued that the lower court did not follow the proper process for considering the religious rights of the witness, and did not properly assess what “full answer and defence” really means in this case.
When the matter went to the Court of Appeal for Ontario, the OHRC was again granted leave to intervene.
The OHRC believes that women who wear the niqab should not be denied equal participation in society through restrictive decisions and policies. We also believe that forcing people to choose between their religious or cultural identity and access to the justice system is discriminatory and against human rights principles.
In issues involving people from many faiths, we have been concerned that a basic principle of accommodation – providing an alternative – has not been applied.
In another example involving religious head coverings, the OHRC intervened in the case of Stanley v. Toronto Police Service. Ms. Stanley, a Muslim, wears a hijab. In an application to the HRTO she alleged that in 2008, while being questioned by Toronto police officers about the actions of some youth in the neighbourhood, she was handcuffed and her hijab was forcibly removed from her head. While in custody at the police station, she also was viewed by male officers without her religious head covering. Ms. Stanley was later released by police.
The OHRC is currently working to resolve this complaint. This resolution includes having the Toronto Police Service review and revise its Search of Persons Guidelines, to make sure they are consistent with the duty to accommodate religious observances under the Code.