The leaves are falling, as they do every October, but LEAF, the women’s Legal Education and Action Fund, seems impervious, or at least resistant, to changes of season. This week the sisterhood is celebrating whatever role it played as intervener in (a) acculturating the quaint custom of wrapping up women like sausages and (b) legitimizing the idea of defendants having to face masked accusers in Canadian courts.
From now on, at least until a higher court decrees otherwise, shariah will gain a symbolic foothold in Canada’s justice system. Trial judges will determine case by case if a witness can testify wearing a niqab. The door had been opened by blue-ribbon feminists; the mullahs just walked through. Ironically, in Ontario the burqa isn’t the Taliban’s fashion statement but feminism’s.
What do we lose? Oh, bagatelle; a few principles. Blessed by judicial hypocrisy, we’ve reduced the ability of lawyers to cross-examine, juries to arrive at informed conclusions and defendants to make full answer and defence. Look at what we’ve gained, though: We’ve accommodated a liaison between modern matriarchy and medieval theocracy.
Talk about strange bedfellows. It certainly illustrates the kinship of the single-minded.
Still, I’m not as dismayed by the Ontario Court of Appeal’s decision in R. v. N.S. as many friends in the media. True, taking away from men in legal disputes with sausage-ladies every defendant’s right to test demeanour evidence in court is pretty bad, but it could have been worse. Someone could have argued that to avoid unfairness to non-Muslim complainants, or the non-religious, all accused should be deprived of the benefit of demeanour-evidence.