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Creative law : selected papers from The University of British Columbia's 16th annual interdisciplinary… Garbett, Tom; Alam, Mariful; Barr-Klouman, Agnes; Asat, Rayhan; Glover, Kate; Kashefi, Sirus; Kislowicz, Howard; Kiyani, Asad; Knapper, Nate; Long, Michael; Love, Helene; McIntyre, Don; Moffitt, Morgan; Murchison, Melanie Janelle; Plyley, Kate 2011

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Selected Papers from  the University of British Columbia’s  16th Annual Interdisciplinary Legal Studies  Graduate Students’ Conference! ! Creative Law  ! !   Creative Law  Selected Papers from the University of British Columbia’s 16th Annual Interdisciplinary Legal Studies Graduate Students' Conference                           Copyright © 2012 the author/s (for their respective chapters); the Editor (for the introduction and front material); the Organizing Committee 2011 and Asad Kiyani (for the conference programme).  Cover design by Miriam Ashurst with original ‘Creative Law’ graphic by Asad Kiyani.  Programme design by Asad Kiyani.  All rights reserved.  This work may not be translated or copied in whole or in part without the written permission of the author or authors as applicable.  Requests for permission should be addressed to the relevant author at the institution to which they express affiliation.  Views expressed in any chapter of this ebook are those of that chapter’s author/s and do not necessarily reflect the views of the University of British Columbia, the University of British Columbia’s Faculty of Law, other authors with work included in this ebook, or the Editor.  Views given are solely the authors’ opinion and are intended to stimulate academic dialogue.  The papers included in this ebook have received only minimal substantive editing; due to the student-led nature of this initiative, references have not been checked and confirmed in every case.  No responsibility of any kind is taken by the Editor, the University of British Columbia, the University of British Columbia’s Faculty of Law, or other authors with work included in this ebook for incorrect, incomplete, or inadequate referencing. ! ! ! Editor!    Tom Garbett Chair, Creative Law 2011 c/o Faculty of Law, The University of British Columbia Vancouver, BC Canada     Editor’s Note:    The papers included in this ebook have received only minimal substantive editing; due to the student-led nature of this initiative, references have not been checked and confirmed in every case.    Each paper was presented as printed, in summary or in whole, at UBC’s 16th Annual Interdisciplinary Legal Studies Graduate Students Conference held on 13 and 14 May 2011.  No editorial decisions have been made about the selection or content of included papers, which were chosen by conference participants by vote.  The views of the authors are theirs alone.  Copyright in each case remains with the author(s).  This is a working papers edition, with each author free to publish elsewhere.  References in this ebook conform, as far as possible, to the 6th edition of the Canadian Guide to Legal Citation.   The index is indicative only and does not purport to exhaustively catalogue the contents of this book.  An electronic word search is the most effective way of finding pertinent information. Acknowledgements                                                                 !" Acknowledgements     Thanks must go, first, to the 2011 Organizing Committee without whose year-long commitment the conference at which these papers were presented – UBC’s Creative Law, 2011 – could never have been staged: Asad Kiyani, Brendan Naef, Erika Cedillo, Jerry Ji, Joanne Chung, Krish Maharaj, Matt Voell, Mohsen Seddigh, Peipei Wang, Pierre Cloutier de Repentigny, Renee Cochard, Si Hao, and Ying Ji.  Gratitude, also, for contributions from Michael Begg, Don McIntyre, and Michael Cody, past chairs of the conference and ever-ready with much appreciated advice.  Second, thanks must go to Dr. Obijiofor Aginam of the Institute for Sustainability and Peace, United Nations University, Tokyo, who gave the keynote address.  Dr. Aginam, a previous adviser to the WHO, gave a wonderful speech detailing his work in the sphere of global health governance; a pertinent example of the innovative and changing nature of law that the conference intended to study.    Additional thanks are due to the members of UBC’s Law Faculty who gave up time to attend the conference, chair panels and lead discussion.  For giving up their time, despite their many other commitments, a huge vote of appreciation goes to: Professor Douglas Harris; Professor Pitman Potter; Professor Benjamin Richardson; Professor Fiona Kelly; Professor Steve Wexler; Professor Emma Cunliffe; Professor Gordon Christie; Professor Joost Blom; Professor Mary Liston; Professor Sharon Sutherland; Professor Shigenori Matsui; and Professor Michelle LeBaron.  Funding for the conference was provided by way of generous sponsorship from Lawson Lundell LLP, Cochard Johnson, the UBC Graduate Law Students’ Society, the UBC Graduate Students’ Society, the BC Law Foundation, and Sandman Hotel Group. Saving the most important acknowledgement until last, thanks must go to those who came from all over the world to attend the conference, to present papers, and to get involved in ii                                     Acknowledgements   the many and varied discussions and debates.  It would not have been the event it was (or, indeed, have occurred at all) without the participation of:   Mariful Alam (Carleton University, Canada), Efrat Arbel (Harvard Law School, US), Rayhan Asat (Osgoode Hall Law School, York University, Canada), Elaine Babiarz (Stetson University College of Law, US), Craig Bateman (University of British Columbia, Canada), W. Lewis Black (Practitioner, US), Mario Cajas-Sarria (Universidad Icesi Law School, Columbia), Erika Cedillo Corral (University of British Columbia, Canada), Yun-Ru Chen (Harvard Law School, US), Pierre Cloutier de Repentigny (University of British Columbia, Canada), Michael Cody (University of British Columbia, Canada), Courtney Doagoo (University of Ottawa, Canada), Tom Garbett (University of British Columbia, Canada), Jared Giesbrecht (University of Victoria, Canada), Jennifer Glougie (University of British Columbia, Canada), Kate Glover (McGill University, Canada), Sarah Hamill (University of Alberta, Canada), Jonathan Hanvelt (Practitioner, Canada), Si Hao (University of British Columbia, Canada), Adelina Iftene (Queens University, Canada), Linda Ippolito (Osgoode Hall Law School York University, Canada), Muhammad-Basheer Adisa Ismail (University of Hull, UK), Megha Jandhyala (University of Toronto, Canada), Jianfeng (Jerry) Ji (University of British Columbia, Canada), Ying Ji (University of British Columbia, Canada), Azim Jiwa (University of Manitoba, Canada), Elspeth Kaiser-Derrick (University of British Columbia, Canada), Sirus Kashefi (Osgoode Hall Law School, York University, Canada), Howard Kislowicz (University of Toronto, Canada), Asad Kiyani (University of British Columbia, Canada), Nate Knapper (Pepperdine Law School, US), Andrij Kowalsky (Osgoode Hall Law School, York University, Canada), James Kroger (Georgetown University Law Center, US), Michael Long (Osgoode Hall Law School, York University, Canada), Krish Maharaj (University of British Columbia, Canada),  Sarah Marsden (University of British Columbia, Canada), Don McIntyre (University of British Columbia, Canada), Allen Mendenhall (Auburn University, US), Morgan Moffitt (University of British Columbia, Canada), Melanie Janelle Murchsion (Carleton University, Canada), Brendan Naef Acknowledgements                                                                                           iii   (University of British Columbia, Canada), Tal Nitsan (University of British Columbia, Canada), Maziar Peihani (University of British Columbia, Canada), Timothy Petrou (Osgoode Hall Law School, York University, Canada), Kate Plyley (University of Victoria, Canada), Zoe Prebble (University of British Columbia, Canada), Abigail Pressler (Stetson University College of Law, US), Mohsen Seddigh (University of British Columbia, Canada), Robert Tomkowicz (University of Ottawa, Canada), Virginia Torrie (University of Kent, UK), Isa Dora Tytgat (University of British Columbia, Canada), Matthew Voell (University of British Columbia, Canada), Kerstin Walter (University of British Columbia, Canada), Peipei Wang (University of British Columbia, Canada), Helene Wheeler (University of British Columbia, Canada), and Todd Williams (University of Washington, US). !   Contents!     Acknowledgments  ………………………………………………      i  Contributors …………………………………………………….   vi  About the Authors ………………………………………………  viii  Introduction .……………………………………………………     1 Tom Garbett  Creative Critique: Countering Academia and  Social Order through Zines ………………………………     6 Mariful Alam and Agnes Barr-Klouman   Saving Face in Canadian Courtrooms: The Niqab  and Fundamental Freedoms …………………………………   17 Rayhan Asat!  ‘Dance Your Ph.D.’: Is Legal Education Ready? .……….  75 Kate Glover  Kropotkin’s Anarchist Ideas About Criminal Law:  Between Sensualism and Scientism ………………………... 132 Sirus Kashefi  Freedom of Religion and Canada’s Commitments  to Multiculturalism …………………………………………… 245 Howard Kislowicz  Peacemaking for Digital Natives: Toward a  Socially Responsible Approach to the Provision of Interactive Entertainment ……………………………….. 277 Nate Knapper   Rooted in the Sky: Reflections on Law, Morality  and the Environment …………………………………………  306 Michael Long  Is Vancouver ‘Hamsterdam’? Real Life Lessons  from HBO’s The Wire ………………………………………..  342  Helene Love  Moving Beyond the Word of Law: Finding Meanings in Laws, and Laws in Meanings …………………………  376 Don McIntyre  ‘Bringing Us Together’: Bridging Restorative Justice  and Resource Management in Mi’kmaq  Nova Scotia …………………………………………………….  403 Morgan Moffitt  R. v. Krieger and Dworkin’s ‘Right Answer’ Thesis:  A New Precedent? …………………………………………….  420 Melanie Janelle Murchison  To Obey or not to Obey, Who Might be Watching?  The Foucauldian Panoptic Board Game ………………..   451 Kate Plyley  Annex Creative Law 2011: Conference  Programme ……………….  478  Index ……………………………………………………….  488 !     Contributors     Mariful Alam  Faculty of Socio-Legal Studies, York University, 4700 Keele Street,  Toronto, Ontario, M3J 1P3, Canada  Rayhan Asat! Osgoode Hall Law School, Ignat Kaneff Building, York University, 4700 Keele Street,  Toronto, Ontario, M3J 1P3, Canada  Agnes Barr-Klouman  Department of Law, Legal Studies, Carleton University, 1125 Colonel By Drive, Ottawa, K1S 5B6, Canada  Tom Garbett  Faculty of Law, University of British Columbia, 1822 East Mall, Vancouver, V6T 1Z1, Canada  Kate Glover  Faculty of Law, McGill University, Chancellor Day Hall, 3644 rue Peel, Montreal, H3A 1W9, Quebec, Canada  Sirus Kashefi  Osgoode Hall Law School, Ignat Kaneff Building, York University, 4700 Keele Street,  Toronto, Ontario, M3J 1P3, Canada  Howard Kislowicz  Faculty of Law, University of Toronto, 84 Queen's Park, Toronto, Ontario, M5S 2C5, Canada  Nate Knapper  Pepperdine University School of Law, 24255 Pacific Coast Highway, Malibu, CA 90263, USA  Michael John Long  Osgoode Hall Law School, Ignat Kaneff Building, York University, 4700 Keele Street,  Toronto, Ontario, M3J 1P3, Canada  Helene Love  Faculty of Law, University of British Columbia, 1822 East Mall, Vancouver, V6T 1Z1, Canada  Contributors                                                                                                    vii   Don McIntyre  Faculty of Law, University of British Columbia, 1822 East Mall, Vancouver, V6T 1Z1, Canada  Morgan Moffitt  Department of Anthropology, University of British Columbia, 6303 NW Marine Drive, Vancouver, BC, V6T 1Z1, Canada.!  Melanie Janelle Murchison  Department of Law, Legal Studies, Carleton University, 1125 Colonel By Drive, Ottawa, K1S 5B6, Canada  Kate Plyley  Faculty of Law, University of Victoria, PO Box 1700, STN CSC, Victoria, British Columbia, V8W 2Y2, Canada      ! About the Authors ! ! ! ! Mariful Alam is an artist, political activist, and a Ph.D. Candidate at York University.  Rayhan Asat! is currently reading for her second Masters of Law degree at Osgoode Hall Law School, York University.  She has published articles in Chinese law journals, and her recent scholarship on adaptation in the conflict of laws has been published in China. She has also presented at various law school graduate conferences, namely: Cornell Law School Graduate Conference, Osgoode Hall Law School Graduate Conference, and the University of British Columbia Graduate Law Conference.  She was a guest speaker on the Law & Society panel at the University of Toronto’s “60 years of China” conference.  Recently, Rayhan has been working as a research assistant to Professor Faisal Bhabha at Osgoode Hall Law School, concentrating on the application for leave to intervene on behalf of CAIR-CAN in the case of R v. N.S at the Supreme Court of Canada.  Agnes Barr-Klouman is a M.A. candidate in the Legal Studies Program at Carleton University.  This is her first publication.  Kate Glover is a doctoral candidate and an O’Brien Fellow in Human Rights and Legal Pluralism at McGill University’s Faculty of Law. She has a B.A. (Philosophy) from McGill University (2003) and an LL.B. from Dalhousie Law School (2006). After being called to the Bar of Ontario in 2007, Kate earned an LL.M. in public international law and comparative law from the University of Cambridge, where she studied as the Rt. Hon. Paul Martin Sr. Scholar.  She then worked as a litigator with Borden Ladner Gervais, representing clients in a variety of public law and commercial matters.  Immediately prior to returning to McGill to pursue her doctorate, Kate served as a law clerk for Madam Justice Abella at the Supreme Court of Canada.!!About the Authors                                                                                             ix   Sirus Kashefi was born in Mashhad where obtained his LL.B. from Azad University in 1996.  Studying at the University of Tehran’s Law School, he was awarded his LL.M. in “Criminal Law and Criminology” (1997-2000), collaborating, as a researcher, with the Institute of Criminal Sciences and Criminology and the Center for International Studies (University of Tehran).  Thanks to the support of Professor Mohammad Ashouri and to a scholarship from the Centres Régionaux des Oeuvres Universitaires et Scolaires (CROUS), Sirus finished his second LL.M. in 2001 (“Criminal Law and Criminal Policy in Europe”) and subsequently defended his Ph.D. thesis (“La Protection des Mineurs au sein du Conseil de L’Europe”) summa cum laude under the supervision of Professor Bernard Bouloc at Pantheon-Sorbonne University. The thesis was also awarded a publication prize (2004).  After immigrating to Canada in 2005, he has once again become a Ph.D. student, working on his thesis entitled “The State and the Philosophy of Law” at Osgoode Hall Law School under the supervision of Professor Allan Hutchinson.   Howard Kislowicz is a doctoral candidate at the Faculty of Law, University of Toronto.  His publications have appeared in the University of British Columbia Law Review and the Alberta Law Review.  He is the recipient of numerous awards and prizes, including the Alan Marks Medal for best thesis in the Graduate Law Program at the University of Toronto.  He currently holds a Joseph-Armand Bombardier Canada Graduate Scholarship from SSHRC.  His dissertation employs qualitative empirical methods to analyze the law of religious freedom in Canada.  Nate Knapper is a recent graduate of Pepperdine University School of Law and the Straus Institute for Dispute Resolution. An active public servant, he has completed clerkships at a variety of prestigious American government institutions, including the White House and the U.S. Department of Energy. A native of Detroit, Michigan, he helped create ‘Curriculum Beyond the Classroom’ in 2007, an innovative program designed to connect legislative interns with area professionals at the Michigan Capitol.  x                                                                                             About the Authors                                                                                                Michael John Long earned his B.A. (Hons) in Philosophy and Law & Society, as well as his Masters in Environmental Studies from York University.  He recently finished his Master of Laws at Osgoode Hall Law School.  As a philosophy student he was awarded the Certificate in Practical Ethics by the head of the York Centre for Practical Ethics.   Michael currently conducts research as a Junior Fellow of the Institute for Research and Innovation in Sustainability (IRIS) at York University, and as a Graduate Member of IP Osgoode.  He is also the Co-Chair of the Environmental Law Society at Osgoode Hall Law School, and a Teaching Assistant with the Faculty of Environmental Studies at York University. Michael has previously held positions as a Graduate Fellow of the Jack and Mae Nathanson Centre on Transnational Human Rights, a Graduate Associate at the York Centre for Practical Ethics, and as an editor for IP Osgoode’s online blog, IPilogue.  Helene Love is the Director of Graduate Certificate and Professional Programs at the University of British Columbia Faculty of Law.  She recently completed her Masters of Law at UBC, where she wrote her thesis entitled “Sentencing Practices for Older Adults,” which examined sentencing decisions to see how, why, and in what way advanced age factored into sentencing decisions for offenders.  When not pouring over case law, Helene has been developing an appreciation for television shows like The Wire, Friday Night Lights, and most recently, American Horror Story.  Don (AhnAhnsisi) McIntyre is an Ojibway of the Wolf Clan from Timiskaming First Nation.  The Beaver Clan of the Nisga’a/Tlingit has adopted him in the Potlatch.  Don is on the faculty of the Banff Centre in the Aboriginal Leadership and Management Development program.  He received his Bachelor and Master of Laws from the University of British Columbia.  He is presently working toward his Ph.D. in Laws looking at Legal Pluralism and the abilities of Indigenous Socio-Legal practices to enhance and improve Western legal paradigms.  He is a Community Member for the Vancouver Aboriginal Transformative Justice Society.  Don has worked in the area of Corporate Litigation for a large international law firm and ran his own law corporation About the Authors                                                                                             xi   large international law firm and ran his own law corporation practicing in the areas of Aboriginal law, governance, Intellectual Property, Traditional Knowledge and Art law.  He has spent most of his life as a teacher in various incarnations; speaking at Public Schools, Colleges, Universities, and First Nation communities and around the world.  He speaks in the areas of law, socio-legal pluralism, Law & Society, Indigenous art and traditions, colonization, justice systems, negotiations and treaty.  Don is an award winning painter and carver in the traditional style of his territories but juxtaposes contemporary visions and themes into his work.  He has shown his work in Germany, Australia and the United States.  His greatest pride comes from his daughter Jake.  Morgan Moffitt is completing her Master of Arts degree in Anthropology at the University of British Columbia. Her research interests include indigenous peoples’ relationships with the state, environmental anthropology, and the anthropology of law.  She is currently working as a research assistant for the NF-UBC Nereus Project: Predicting the Future Oceans.  She has conducted ethnographic fieldwork with the Mi’kmaq of Nova Scotia and recently worked as a marine planning intern for Gitxaala First Nation in British Columbia.   Melanie Janelle Murchison is currently finishing her Masters thesis – entitled “How Legal and Social Theory Meet in Jury Nullification” – at Carleton University in Ottawa.  In fall 2012, Melanie will begin her doctorate in the UK. Her article, “Measuring Success of Corrections Programs: The Evaluation of the Minobimasdiziwin Prison Gang Intervention Program” can be found in Thinking about Justice by Kelly Gorkoff and Richard Jochelson, Fernwood Publishing (forthcoming, June 2012).  Kate Plyley is a doctoral candidate in the Law & Society program at the University of Victoria. Her research is on the topic of ‘tolerated illegality’. More specifically, she is interested in the cause of the emergence of tolerated illegality, the effect that its existence has on a legal system, and how to resolve these socio-legal conflicts once they exist. Kate xii                                                                                            About the Authors                                                                                                received a B.A. (Hons) from the University of Toronto in 2008 (Ethics, Society & Law), and her M.A. from Carleton University in 2011 (Legal Studies). Introduction                                                                                                       1              Introduction Creative Law: Expectations and responses  Tom Garbett    The graduate law students’ society of the University of British Columbia hosted, for the sixteenth year, a legal studies graduate student conference held on May 13 and 14, 2011.  The conference is well known, largely as a result of its interdisciplinary approach, for creating a unique forum for the presentation of new and challenging work by postgraduate students from all over the world.  In 2011, it was held at the Liu Institute for Global Issues on the University of British Columbia’s Vancouver campus.  The conference theme was ‘Creative Law’ and its mandate was to promote reflection on “creativity and the law” in all the possible senses of that phrase: law and its interaction with the arts; innovation within the law and innovative uses of law; the development of new law; legal postmodernism; new and distinctive ways of interpreting law; and the application, 2                                                                                                       Introduction  adoption or appropriation of law in or by other disciplines, to name but a few.  This volume brings together some of the papers that were most appreciated at the conference, selected by vote by participants.  It is the first of what is hoped will be an annual 'proceedings of the conference' ebook, recording interesting papers for posterity and cataloging the future of the event.  In Bleak House, Charles Dickens’ wry look at the British legal system of the nineteenth century, law is a “kindred mystery” to the “street mud, which is made of nobody knows what, and collects about us nobody knows whence or how.”1  One hopes that the Court of Chancery’s stagnant pace is now just a fragment of history; nevertheless conferences such as Creative Law remain to shake us free from any encroaching ‘mud’, addressing law’s ‘mysteries’ by taking an alternative, novel view of some of today’s most pressing legal questions.   Indeed, when the Organizing Committee first considered ‘Creative Law’ as the theme for the 2011 conference, it had two broad hopes: that ‘creative’, with its double meaning of artistic endeavour and novelty, would, first of all, provide a rare opportunity for scholars to examine the interaction of law and the arts; second, that it would attract papers which explored the cutting-edge and/or the outer reaches of legal scholarship.  These two hopes were linked perhaps by the idea of boundaries: should the arts and law affect one another at all, one might surmise, it would be at the ‘edge’ of !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 1 Bleak House (London: Bradbury & Evans, 1853) at 95. Tom Garbett                                                                                                       3  both, where they overlap.  It is here at the boundary, so the hypothesis goes, that the envelope is pushed, and so there was considerable anticipation that the papers submitted would be something special.  We were not to be disappointed.  Creative Law turned out to be one of the most interesting and stimulating conferences of recent times.  This book provides a taste.  The papers included in this book were chosen by participants as their favourites from those presented over the conference’s two days.  Selected by vote and truly peer approved, it is no coincidence that they give a wonderful demonstration of the two-tone nature of creativity in the legal context.  Authors make full use of the artist’s pallet of narrative (Glover), play (Plyley), wordplay (McIntyre), and emotion (Kashefi); and by taking stories, games, words, and ‘sensualism’ and applying them to the world of legal education, to legal philosophy, to the plurality of law, or to the study of criminal law (respectively), these scholars reveal something novel not only in their conclusions about substantive aspects of law, but also about the variety of possible methods for its study.    This is not to try to homogenize the wide-ranging scholarship that is on display here.  Indeed, the array of unique approaches was fundamental to the conference’s success.  Other papers revisit established legal problems, framing them afresh – reappraising Canada’s approach to multiculturalism (Kislowicz), taking alternative views on the merits and methods of regulating violent video games (Knapper) or drugs (Love), or focusing on the meeting of law and morality when a jury 4                                                                                                       Introduction  decides to go its own way, despite the wishes of the court (Murchison).  Still others take a very modern legal concern and explore its impact on our immediate present and future – an approach inherently novel in its timing: a moral approach to sustainability (Long); a legal review of the debate surrounding the wearing of the niqab in court (Asat); an anthropological look at extended restorative justice at work in the Mi’kmaq community in Nova Scotia (Moffitt).  The full richness of argument in each case cannot be fully captured in this brief introduction; but whether exploring law through a novel approach, or searching for sparkling new insights by way of an established methodology, the result is a freshness of view that can be seen throughout this book and which imbued the conference itself.  If, as Oscar Wilde once suggested, it is the critical spirit that creates (rather than the ‘imitative’ imagination),2 on the evidence of this conference the critical spirit is going strong.  Not only were the presentations creative in their tone – and one might mention here the fascinating focus on zines with which this book begins, exploring the ‘do-it-yourself’ publishing phenomenon as it touches on legal writing and resistance (Alam and Barr- Klouman) – but the conference also saw originality in the questions asked, comments offered, and respect given in response to the new ideas in each offering: surely Wilde’s critical spirit in action and on display. !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 2 Intentions (London: Filiquarian Publishing, 2007). Tom Garbett                                                                                                       5   E.M. Forster once wrote – tongue somewhat in cheek – that to “[t]hink before you speak is criticism’s motto; [to] speak before you think, creation’s.”3  Only so much preparation can go into an event such as Creative Law.  The success and spirit of the occasion rested in those creative, scholarly, interested and interesting people who showed up – and spoke.  Vancouver February 2012  ! !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 3 Two Cheers for Democracy (London: Mariner, 1962).               Creative Critique: Countering Academia and Social Order through Zines  Mariful Alam and Agnes Barr-Klouman    Whoever does not seek the unforeseen sees nothing, for the known way is an impasse.  —Heraclitus    Mariful Alam and Agnes Barr-Klouman                               7 Introduction  We go beyond the boxes of the written word, in the format of a zine, to illustrate how different arenas of our lives are dictated through various manifestations of power.  The creativity of the State-form is made apparent through our varied representations of how institutions interact with its participants to create an understanding of who represents the ideology of the State-form and who does not.1  We chose to match the creativity of the State-form through an alternative medium, which as Marshall McLuhan famously stated: ‘the medium is the message.’  Our project format is intended to fill the gap between academic discourse and jargon, which can be highly specialized and alienating, particularly in the field of law, and laypersons.  The zine thus serves as dual purpose; the critique of social order and of academia.   1. What is a zine?  A zine is a type of alternative press publication that first emerged in the 1930’s and 1940’s. Originally labeled as !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 1 By ‘State-form’ we refer to Giles Deleuze and Felix Guattari’s metaphor which collapses the distinction between the micro and macro political spheres; politics as simultaneously a ‘macro-relation’ and ‘micro-relation’.  While Deleuze and Guattari make the State an important site of domination, they see it not as a concrete institution, but as an abstract form or model that essentially rules though multiple institutions and practices of domination in everyday life.  See Giles Deleuze & Felix Guattari, A Thousand Plateaus: Capitalism and Schizophrenia (Minnesota: University of Minnesota Press, 1988) at 213 ff.      Creative Critique  8 ‘fanzines’, these self-made publications were circulated among science fiction enthusiasts as a way to “exchange ideas and share common interests.”2  As a result of increased social and political activism, alternative media flourished in the 1960’s and 1970’s.  This publishing explosion took on a variety of forms including newsweeklies, literary magazines, poetry chapbooks, political manifests, and more.  Much of these formats were considered ‘self-published’, and it was out of this climate that zine’s became increasingly viable, especially within the anarchist, feminist, and punk-rock movements.  By the 1980’s, zine’s became a popular underground forum for marginalized writers, offering a unique form of free expression and debate.3   Over the last few decades, zine’s have come to cover a myriad of topics, including art, literary, music, and politics. Rather than for-profit publications, zine’s are a ‘do-it-yourself’ magazine, independently produced and published by the writer or artist for interest and passion, which can come in different formats, shapes and sizes.4  While some are professionally designed and printed, they are more commonly made using collage techniques, and then photocopied and stapled together.5   !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 2 Karen Gisonny & Jenna Freedman, “Zines in Libraries: How, What and Why” (2006) 25:1 Collection Building 26 at 26. 3 Ibid. 4 Ibid. 5 “What is a Zine?” Art Matters Blog (27 August 2008), online: Art Gallery of Ontario <>. Mariful Alam and Agnes Barr-Klouman                               9 2. Why zines?  In the context of academia, the use of zine’s challenges the traditional boundaries of the written assignment. Critical educators have noted that in ‘doing school’, a student gives themselves over to the hierarchy of meritocratic schooling; working for the sake of meeting the requirements of an authority figure, credentials, grades, and so forth.  As William Armaline writes, those with the power and legitimacy construct such students as “intelligent” and “successful.” 6   Students ‘doing school’ are rewarded for their work and obedience (good grades or an honors certificate), and the material and status rewards that follow (employment, nice car and house etc).    However, students and teachers who simply ‘do school’ must “sacrifice their free will and unconstrained creative capacities to meet the goals and address the questions determined by !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 6 William Armaline, “Thoughts on Anarchist Pedagogy and Epistemology” in Randall Amster et al., eds., Contemporary Anarchist Studies: An Introductory Anthology of Anarchy in the Academy (New York: Routledge, 2009) at 138.      Creative Critique  10 authority.”7  We are socialized to admire those who succeed in school – manifested as getting good grades and valuable credentials.  But for those who feel alienated from school, they might find sacrificing their identities, desires, and curiosities that are necessary for meritocratic success unappealing.  Thus, educational spaces should provide an unrestrictive and resourceful environment through which students and teachers can explore their curiosities, creative desires, and their relationships to others in the community and the world.8  We believe zine’s are an example of creative desires, which provides a unique platform to discuss and critique social, political, and cultural institutions through artistic expression; short stories, poems, photography, drawings, etc.  Academia places a heavy emphasis on essays as the most legitimate form of evaluation on whether a student has an understanding of core concepts and theories.  While we do not dispute that essays are important for illustrating an understanding of a subject matter, one could equally argue that a valid critique can be achieved through the use of images, short essays, and poems.  We believe that the usage of these three components provides a more holistic critique of the subject matter, as it invites the reader to participate in a conversation with the authors, instead of the writer dictating a point of view.   !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 7 Ibid. at 138-139. 8 Ibid. Mariful Alam and Agnes Barr-Klouman                               11    3. Zines as critical pedagogy/critiquing social order  Zines provide the reader with a more interactive and engaging experience because it forces the reader to interpret the images and poems, and to draw their own conclusions on how social order operates.  In other words, a zine is more thought provoking.  It is also able to draw on the multifaceted operation of social order by providing excerpts that relate to the concept in its entirety, instead of providing a focus on one dominant aspect of the theme.  Zine’s can thus be a part of the broader critical pedagogy framework, which also demands one to be critical of power structures as they are embedded in history, governments, capitalism, and the mass media.  As scholars who take an active interest in social justice, academic projects in the form of zine’s can further expose truths about our concepts of law, crime, and social order.  The law has historically served as      Creative Critique  12 a mechanism of (re)producing social norms and inequalities to establish order of the powerful minority or the general majority vis-à-vis the State-form.  The oppression of groups has been justified either in terms of their moral inferiority or their threatening nature. Women, Blacks, Natives, Asian, Immigrations, Gays and Lesbians, the Poor and the Dissidents, have all been subjected to an imposed socio-legal hierarchy, as each group has and continues to threaten the established social order.     The goal of our zine was to deconstruct the term ‘social order’.  We wanted to illustrate that complexity of the concept by demonstrating that everyone is implicated in (re)producing the normative (dis)order.  We achieved our goal by highlighting that the purpose of the State-form is to establish a predictable and stable order.  However, there will always be the deviant – the individual who occupies the spaces beyond the boundaries of the established predictable order.  The deviant is subject to Mariful Alam and Agnes Barr-Klouman                               13 various institutional and social regulations to limit their impact on society.  We examined how various societal institutions – family, school, religion, media, community, prisons, police, law and the State – creatively construct the image of social order in North America.  In our critique of the narratives that these institutions create, we challenged the boundaries of the social imaginary to establish that inequality and hypocrisy underpins our social reality.    We incorporated a variety of different poems to discuss how social order operates in everyday life, particularly how it is (re)produced through schools, nationalism, and suburbia.  The uses of poems were meant to make the reader engage in the topic, and to draw their own conclusions on how social order operates through every day interactions.  We also made use of short essays to provide an extended analysis on issues that are pertinent to a discussion on the production of social order.  We incorporated the explicit use of theory and illustrate the relationship between law and social order.  Moreover, our short      Creative Critique  14 essays dealt with the historical examinations of immigration policy, the history of policing and how social order is defined and achieved through law.  Each written piece was matched with a visual that either juxtaposes or complimented the written work.     4. Zine’s as resistance  By incorporating various forms of artistic expression into a zine format, it not only allows one to deconstruct oppressive narratives inherent within social-legal discourses, but also resist it.  Social order is performative; performance (re)produces the various systems of domination.  The State-form uses aesthetics, symbols, and ceremonies partly as a performance of power – asserting, communicating, and celebrating its version of national history, its fabrication of national unity, and its enemies through political performances.  However, those who Mariful Alam and Agnes Barr-Klouman                               15 oppose systems of domination are equally performative. Throughout history, people have used artistic expression, whether it was through paintings, dancing, or singing, to voice either explicitly or implicitly, their hostility to various forms of oppression.  Art produces counter narratives that challenge power by inverting the State-forms version of the present or past.9     More importantly, zine’s are a form of visual production and consumption that can expand socio-legal critiques beyond the field of academia, allowing those on the ‘outside’ to consider the role of laws power.  As Jo Ellen Fair writes, no matter what their subject and whether they are overtly political or not, works of art rely on broadly circulating and inevitably political narratives, metaphors, and imagines to animate them !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 9 Laurie Beth Clark, “Performing Truth” in Ksenija Bilbija et al., eds., The Art of Truth-Telling About Authoritarian Rule (Wisconsin: University of Wisconsin Press, 2005) at 82.      Creative Critique  16 and give them their charge.  Political discourse is at the heart of visual culture; all seeing is political, as is the production and circulation of what is seen.10   Concluding remarks  We are indebted to two professors, Ummni Khan and Yavar Hameed, who encouraged us to produce a creative final project. We want students to be given a choice on how they can convey concepts and theories, which does not rule out essays as a legitimate project, but encourages students to have more agency and thus more passion in the work that they produce.  Zine’s are just one of many creative possibilities.   !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 10 Jo Ellen Fair, “Artworlds” in Ksenija Bilbija et al., supra note 8 at 25. ! !              Saving Face in Canadian Courtrooms  The Niqab and Fundamental Freedoms   Rayhan Asat!   Introduction  Following numerous judgments in various countries on the wearing of a niqab1 in a courtroom setting, the Ontario Court of! Appeal released its landmark judgment on this issue in 2010.  It took Canadian courts one step forward by fairly addressing concerns related to the competing interest of different parties on this issue.  By applauding this judgment this essay seeks to analyze the banning of the niqab in a courtroom procedure. ! !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 1 While the debate over head-coverings for Muslim women in various settings is extensive and multi-faceted, this essay focuses on the full facial covering or ‘niqab’ in the courtroom setting as an example of a situation in which fundamental freedoms come directly into contact with one another.  The author tends to use this term for the sake of discussion, as this article focuses on the niqab in the court proceedings.  This is the author’s early LL.M. work; the author intends to publish a more advanced version of this essay in the near future.!!                                                         Saving Face in Canadian Courtrooms  ! 18 !  Within this framework, this essay seeks to identify different approaches to the matter and to analyze critically the approaches that have been adopted in various jurisdictions.  By doing so, this paper proposes a creative method of balancing the competing interests of affected parties as well as the state.2  To elucidate possible and future discussions on the niqab in the courtroom, this paper will also discuss in detail a number of cases where niqab-wearing women were engaged as plaintiffs, defendants, and even judges.  By examining the different approaches in various countries to the niqab in the courtroom settings, I will also explore questions of how the justice system balances the religious freedom of a witness and the accused’s right to a fair trial in a courtroom context.  From the cases on the niqab in the courtroom, it seems that judges have differing interpretations of the relationship between wearing the niqab and freedom of religion.  In cases where judges understand the niqab as a form !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 2 The government has an interest in upholding both constitutional rights, which is to protect religious freedom and ensuring criminal defendants to receive a fair trial.   This essay will look particularly at justice systems that emphasize the need to see a witness's facial expressions during assessments of credibility as a means for providing a fair trial to both parties. !Rayhan Asat!  ! 19 of custom rather than a requirement of religion, they are more willing to ask the woman to remove the niqab in a courtroom. The increased likelihood of this might have the result that the niqab-wearing woman will lose her day in court and see the dismissal of the case against her attacker or the case she has brought as plaintiff.  The question then arises as to how the court should balance defendant’s right to a fair trial and witness’s or the plaintiff’s right of access to justice and how the justice system should balance the public policy consideration of that state owe it to its citizen in providing a stage of fair trial?3 ! This scholarly work seeks to call attention to the need for further discussions of issues regarding wearing the niqab in the courtroom.  Therefore, the focus is on jurisdictions where there is no official ban of the niqab from the public sphere, but where controversies over whether to accommodate or restrict the freedom of religious expressions in courtroom settings have been central to the discussion of the topic.  In a jurisdiction where veiling has been banned from all public spheres, there is no room for debate over the wearing of niqab in the courtroom proceedings.   This essay advocates the view that Canadian courts have addressed this issue in a manner consistent with the Canadian !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 3 “There is also a societal interest pointing against a witness wearing a niqab when testifying.  Society has a strong interest in the visible! administration of criminal justice in open courts where witnesses, lawyers, judges and the accused can be seen and identified by the public” (R. v. N.S., 2010 ONCA 670, at para. 82).!                                                         Saving Face in Canadian Courtrooms  ! 20 Charter of Rights and Freedoms (Charter)4 on the freedom of religion and the foundational values of multiculturalism in Canadian society, which were the focus of the discussion.  However, it leaves the door open for future reference, as the Court of Appeal judgment did not finalize the ways in which Canadian courts should deal with the issue of niqab-wearing women in the Canadian justice system.  Comparatively, some jurisdictions took a more progressive approach where the statutory laws provide clear guidelines for cases that involve niqab-wearing women.  Such an approach brings an insight to Muslim women where! they find themselves in the courtroom proceedings.  This is especially true in the case of victims of sexual assault, knowing that court processes are receptive to all women’s circumstances will encourage more women, including niqab-wearing women, to report their incidents of sexual violence.5  With this insightful approach, national laws of these !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 4 Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982,  c. 11 [Charter], s. 24 provides: (1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances; (2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.  5 Natasha Bakht, “What’s in a Face? Demeanour Evidence in the Sexual Assault Context” in Elizabeth Sheehy, ed., Sexual Assault Law, Practice and Activism in a post-Jane Doe Era (Ottawa: University of Ottawa Press, 2010) [Bakht, “What’s in a Face?”].   Also available online: Social Science Research Network <>. Rayhan Asat!  ! 21 jurisdictions provide predictability for niqab-wearing women where they engage as a party in the courtroom proceedings.   In doing so, this essay will try to explore jurisdictions where this issue was addressed in a manner whereby the justice system puts a considerable value on balancing both legitimate rights of the parties; where the justice system seeks to reconcile vital interests of both parties by way of providing a fair trial to all; where the justice system strives to take into account broader societal interests that impact the ultimate outcome of such case, where the ends of justice are rightly served.!!  1. Canadian jurisprudence on the niqab    In its ruling on this matter of niqab in courtroom!proceedings, the Ontario Court of Appeal reviewed the case in a manner in which gender equality, Islamic cultural practices, religious sincerity, the value of ‘demeanour evidence’, the rights of sexual assault victims, the court's ability to accommodate exceptional circumstances, and the common law's adversarial justice system, were all discussed at one point or another.  At the same time, it set out a list of considerations that judges must take into account when attempting to balance the religious freedom of a witness against the fair trial rights of accused persons, and clarified that there needs to be a case-by-case assessment for each case.6  All of these will be discussed in the following essay with comparison to the other jurisdictions that !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 6 R v. N.S., supra note 3 at para. 84.                                                           Saving Face in Canadian Courtrooms  ! 22 selected for the sake of the discussion.  For the purpose of reaching a workable solution as to where niqab-wearing women become a party to the dispute, this essay chooses the jurisdictions of Canada, the United States, the United Kingdom and New Zealand.   This essay examines the impact of the niqab on the factual findings of the justice system.  Specifically, it examines the rights of Muslim women in their participation in the justice system; the importance of freedom of religion; the accused’s right to face-to-face confrontation, multiculturalism, Canadian heritage and Charter values. ! More specifically, this essay will focus on the ways in which the justice system strives to balance the competing interests of the parties in this particularly situation. Accordingly, it is crucial to examine this important aspect of law where the legitimate interests of both parties are at stake. Moreover, it is significant in the democratic legal system to balance conflicting interests put forward by each parties.  As to niqab-wearing women where they engage in courtroom proceedings,7 regardless of what kind of role they play (witness, plaintiff, judge, solicitor), this essay takes the position that justice systems should take the importance of strong claims professed by both parties into serious account, and advances the need for equally addressing such conflicting interests in the secular legal system.  !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 7 Women who wear the niqab have been in the courtroom context in several different capacities.  There are cases where niqab-wearing women acted as an advocate, a lawyer, a witness, sexual assault complainant and plaintiff.  Rayhan Asat!  ! 23 1.1 The background to the Ontario Court of Appeal case R. v. N.S  N.S. alleged that when she was a young girl, she was repeatedly sexually assaulted by her uncle, the accused,!M---l.S., and her cousin, the accused, M---d.S.  In 1992, N.S. revealed the! assaults to a teacher who urged the parents to proceed, but the police did not lay charges at that time.  The accused were ultimately charged with various sexual offences against N.S. in 2007.  The offences allegedly occurred between 1982, when N.S. was six years old, and 1987.8  N.S. is a Muslim woman who wears full niqab in public or in the presence of male company as of the date of the legal proceedings; she only reveals her face to members of her immediate family.   On 10 September 2008, at the preliminary stage of this case, the defendants sought an order requiring N.S. to remove the niqab covering her face when testifying at the preliminary inquiry.  After a brief examination of her religious practice, the preliminary judge came to the conclusion that N.S.’s religious belief was not sincere because N.S. had removed her niqab when her picture was taken for her driver license.  In the end, the preliminary inquiry did not proceed, and the issue went to the superior court.  N.S. combined her extraordinary remedy claim with an application under section 24 of the Charter seeking identical relief.  N.S. claimed the! preliminary judge was unfair to her and resulted in jurisdictional error.  !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 8 R. v. N.S. supra note 3 at para. 2.                                                           Saving Face in Canadian Courtrooms  ! 24  The Crown argued that as constitutional values were implicated, the trial judge had exclusive jurisdiction to decide whether N.S. should be required to remove her niqab before testifying and that she could not be required to remove it at the preliminary inquiry.  At the Court of Appeal of Ontario, the argument focused on three issues: •  Did the preliminary inquiry judge have jurisdiction to decide whether N.S. should be required to remove her niqab before testifying? • If the preliminary inquiry judge had that jurisdiction, did he err in law in requiring N.S. to remove her niqab?  •  Should this court decide whether N.S. should be required to remove her niqab before testifying?  In considering this issue, the appellate court was clearly aware of the broader political debate surrounding the hijab and the niqab.  Earlier in the judgment, the Court noted: The wearing of a niqab in public places is controversial in many countries including Canada. The controversy raises important public policy concerns that have generated heated debate.  Those difficult and important questions are not the focus of this proceeding and cannot and should not be resolved in this forum.9  The court’s technique in distancing itself from the broader public debate about Muslim religious garb was to compare the rights of the witness in this case to a witness who is wearing !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 9 Ibid. at para. 41. Rayhan Asat!  ! 25 dark sunglasses, and the various constitutional values that are attached to the witness’s reasons for wearing the glasses.10 ! The court’s analysis of the preliminary inquiry judge’s decision similarly tried to distance the niqab from the broader public debate.  Instead, the court placed the emphasis on the parties’ interests that were at stake specifically in this case.  The important questions with respect to the preliminary inquiry judge’s discretionary power that were addressed at the Court of Appeal judgment are beyond the scope of this essay.11 However, in order to understand the main subject matter of this paper, it is essential to get the general picture of the appellate court case.  Given that it is helpful to be aware of the! background of this case before entering upon the critical issue that arises in the following essay, I provide some of the essential matters that were discussed in this case.  However, regarding the previous questions of the preliminary inquiry judge’s jurisdiction go beyond the scope of this essay, I will not discuss these questions.  By providing a brief background of the case law as to the topic, I will try to examine in depth how the justice system could rightly balance the competing interests that are relevant to this particular matter.  !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 10 Umair Abdul, “R. v. N.S. – Behind the Veil on Niqabs in the Witness Stand” The Court (26 October 2011), online: Osgoode Hall Law School < veil-on-niqabs-in-the-witness-stand/>.  11 See generally R. v. N.S., supra note 3.                                                           Saving Face in Canadian Courtrooms  ! 26 1.2 Judicial recognition of the rights of accused and witness   The Court of Appeal’s decision dictates that when deciding on such an issue, the preliminary inquiry judge must attempt to reconcile the rights of the parties, and ensure that “no Charter right be treated as absolute and that no one right be regarded as inherently superior to another.”12  The court first considered the accused men’s right to a fair trial, noting that covering the face of a witness may impede cross-examination by limiting the trier of fact’s ability to assess the demeanour of the witness, and depriving the cross-examiner of insight provided by non-verbal communication.13 Seeing the participants in a trial is a basic! feature of the legal system, for reasons the appeal court sets out clearly.  One is that counsel in the heat of a cross-examination battle makes decisions partly on visual cues. Another is to help jurors make findings of credibility or reliability.14! The Court has recognized that the religious freedoms of a niqab-wearing complainant in a sexual assault case stand on an equal footing with the rights of accused persons. Every case of a niqab-wearing witness must be examined on its own facts but those who sincerely adhere to this religious practice can be assured that they will be treated with equal respect to !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 12 R. v. Mills, [1999] 3 S.C.R. 668 [Mills] at para. 61. 13 R. v. N.S., supra note 3 at para. 54.  14 Editorial, “Niqab Decision: Doing Justice Means Seeing the Face” The Globe and Mail (13 October 2010), online: The Globe and Mail < niqab-decision-doing-justice-means-seeing-the-face/article 1755802/> [“Niqab Decision”].  Rayhan Asat!  ! 27 an accused person.15  Evidently, an intersectional analysis of the accused’s right to a fair trial versus a witness right in the exercise of her right to freedom of religion in the courtroom context will be the most effective way of examining the competing claims to interests held strongly by each party.  The ways in which the justice system attempts to balance such interests and provide a fair trial to both parities and society as a whole will be the primary focus of this essay.!!  1.2.1 The right to a fair trial   In the common law adversarial system, accused persons enjoy the right to a face-to-face confrontation with the accuser, and for the trier of fact to be given a full opportunity to assess credibility and reliability of the witness, particularly in those trials involve jury where a witness’s credibility is central to the outcome of the case.  The criminal justice system assumes that the truth is most likely to emerge through a public adversarial process.  Face-to-face confrontation, especially between an accused and his accuser, is a fundamental feature of that adversarial process.16  Accused persons are presumed to be innocent prior to the establishment of specific crimes in !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 15 Kirk Makin, “Niqab Must be Removed if Trial Fairness Jeopardized, Court Rules” The Globe and Mail (12 October 2010), online: The Globe and Mail < news/national/ontario/niqab-must-be-removed-if-trial-fairness- jeopardized-court-rules/article1754975/>.  16  R. v. N.S., supra note 3 at para. 32.                                                          Saving Face in Canadian Courtrooms  ! 28 criminal proceedings.  Criminal trials revolve around the guilt or innocence of the defendant.17  Cross-examination has been repeatedly described as a matter of fundamental importance that is integral to the conduct of a fair trial and a meaningful application of the presumption of innocence.18  Full answer and! defence is, in turn, a crucial component of a fair trial, a! constitutionally protected right and the ultimate goal of the criminal process.19  Trial fairness is not measured exclusively from the accused’s perspective but also takes account of broader societal interests. Those broader interests place a premium on a process that achieves accurate and reliable verdicts in a manner that respects the rights and dignity of all participants in the process, including, but not limited to, the accused.20   1.2.2  Niqab-wearing women’s right to freedom of religion   There have been several instances of niqab-wearing women finding themselves in a courtroom, whether as advocate, plaintiff, witness or most recently a complainant in a sexual !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 17 Brian M. Murray, “Confronting Religion: Veiled Muslim Witnesses and the Confrontation Clause” (2009-2010) 85 Notre Dame L. Rev. 1730 (HeinOnline) [Murray, “Confronting Religion”].  18 R. v. N.S., supra note 3 at paras. 49-50 (citing R. v. Osolin, [1993] 4 S.C.R. 595 at 663-65 [Osolin]; Mills, supra note 12; R. v. Lyttle, [2004] 1 S.C.R. 193).  19 R. v. N.S., supra note 3 at para. 27. 20 Ibid. at para. 50 (citing Osolin, supra note 18 at 667-72; R. v. Seaboyer, [1991] 2 S.C.R. 577 at 603; Mills, supra note 12 at paras. 72-76, 94; and R v L.O., [1993] 4 S.C.R. 419). Rayhan Asat!  ! 29 assault trial. 21   Regardless of what position niqab-wearing women engaged in the courtroom context, the Charter guarantees them right to freedom of religion.  The Court of Appeal considered the religious rights that are at issue, using! jurisprudence under section 2(a) of the Charter, dealing with freedom of religion, as a framework for an assessment of the complainant’s rights. The Supreme Court of Canada jurisprudence takes a broad and expansive approach to religious freedom.22  According to the Supreme Court jurisprudence, the protection afforded to freedom reaches both religious beliefs and conduct that is motivated by or manifests those beliefs. However, within the line of jurisprudence, the threshold for the conduct of manifesting that belief is far higher than the protection afforded to religious belief.  In order to meet the threshold, the right holder must establish before the court that:   (1) He or she has a practice or belief having a nexus with religion, which calls for a particular line of conduct, either by being objectively or subjectively obligatory or customary, or by, in general, subjectively engendering a personal connection with the divine faith, irrespective of whether a particular practice or belief is required by official religious dogma or is in conformity with the position of religious officials; and   !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 21 Natasha Bakht, “Objection Your Honour! Accommodating Niqab- wearing Women in Courtrooms” in Ralph Grillo et al., eds., Legal Practice and Cultural Diversity (Burlington: Ashgate Publishing Company, 2009) 115 [Bakht, “Objection”].   22 R. v. N.S., supra note 3 at para. 61 (citing Syndicat Northcrest v. Amselem, [2004] 2 S.C.R. 551 at para. 62 [Northcrest]).                                                          Saving Face in Canadian Courtrooms  ! 30 (2) He or she is sincere in his or her belief.23    If the judge is satisfied that both parties’ claims are sufficiently engaged, the judge must try to reconcile the rights! by first trying to give effect to both.  The Court stated that trial judges must search for a sensitive compromise that will respect the complainant’s religious needs while, at the same time, allowing the defense to assess her demeanour during testimony.24 The court noted that context becomes important at this stage, because the trier of fact must consider the interference with assessments based on demeanour, the nature of the proceeding, the forum where the trial will be conducted, and the nature of the evidence that will be given by the evidence.  The court also noted that the nature of the defense, and any grounds that link the ability to see the witness’s face with the defense’s ability to make full answer and defense, would also configure into this contextual analysis.25  Accordingly, a witness who seeks to exercise a religious practice while testifying must establish that the practice falls within the scope of the right to freedom of religion as described in the Supreme Court of Canada jurisprudence.26   In the ruling of the Ontario Court of Appeal case, the court set out an approach for the preliminary judge may take in reconciling these rights. First, the court should determine whether the course of action is religiously motivated, and !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 23 Northcrest, ibid. at para. 56 (Justice Iacobucci). 24 Makin, supra note 15. 25 Abdul, supra note 10.  26 R. v. N.S., supra note 3 at para. 65.  Rayhan Asat!  ! 31 whether the claimant’s religious beliefs are sincerely held.  If! the judge is satisfied that the answer to these questions is in the affirmative, they must then determine the level of interference with the accused’s ability to conduct a cross-examination. Furthermore, the court of appeal rightly addressed the important questions that in evaluating the evidence advanced in support of the religious freedom claim, a court is interested only in whether the practice is a manifestation of the sincerely held personal, religious belief of the witness.  In this case, it is the manner in which N.S. interprets and practices Islam as it relates to the wearing of the niqab that is important.27  Interestingly, as the constitution and Charter protect the freedom of religion and manifesting religious belief, in the case of niqab-wearing women, demonstrating such belief is far more difficult than simply holding a bible on the witness stand.  The scenario, in which niqab-wearing women become a party to a dispute, has been subject to heated debate.  Such a scenario is perfectly portrayed in R. v. NS.  The accused put forward an argument that given the severity of the charges against him, his right to make full answer and defence required that he be able to see the witness’s face, particularly when she was being cross- examined.  According to defence counsel, the niqab would be a hindrance for the trier of fact to see and assess the facial expression of the women for the truth seeking! function of the court.  If this argument is established, how do we determine the extent to which the facial expression is significant to assess the !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 27 Ibid. at para. 67.                                                          Saving Face in Canadian Courtrooms  ! 32 truthfulness of the demeanour evidence?  What level of deference should be given to the defendant’s right to face-to- face confrontation at the expense of exposing veiled women to a situation where her privacy becomes the focus of the justice system?   How does the justice system reconcile such conflicting interests in a way that all the parties’ legitimate interests can be protected?  In dealing with this issue, the Ontario court was confronted with a very challenging issue, which placed the focus on the balancing of rights.  At the appellate level, the court set out a framework for balancing the complex competing rights that are often at stake when the religious beliefs of a witness are in conflict with the rights of the accused.  As with the majority of scholars, I am of the opinion that, given the circumstances of a judicial proceeding, the Court of Appeal of Ontario struck an appropriate balance.  The Court has granted the same degree of deference to both the religious freedoms of a niqab-wearing complainant in a sexual assault case, and the rights of accused persons.  The court stated:  Attempts to reconcile competing interests using ‘constructive compromises’ might include the use of an all female court staff and a female judge…Those measures might also include, where constitutionally permissible, an order that a witness be cross-examined by female counsel...If necessary, the court could be closed to all male persons other than the accused and his counsel.28   This approach allows equal consideration of the rights of both !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 28 Ibid. at para. 85.  Rayhan Asat!  ! 33 parties, and the trier of fact is left with the responsibility of reaching a contextual compromise.  In articulating a framework for judges who are faced with similar conflicts in the future, the Court of Appeal did an excellent job of striking the right balance. 29  And yet there are questions that remain unresolved.   1.2.3  The state’s interest in this matter   As the Ontario Court of Appeal ruled in this case, the public has a strong interest in getting at the truth in the criminal proceedings.  Society has a strong interest in the administration of criminal justice in open courts where witnesses, lawyers, judges and the accused can be seen and identified by the public.30  A public accusation and a public response to that accusation in a forum, which tests the truth of the accusation through the adversarial process, enhances public confidence in the administration of criminal justice.31  For the legitimate concern of visual identity of niqab- wearing women, there are ways in which the justice system could proceed to identify Muslim women before entering the court to assure the person she claims is the same person in the court proceedings. The following example furthers such concern.  In the case of Police v. Razamjoo 32 in New Zealand, the judge in this case ruled that the court and litigants should be able to see the faces of witnesses. Otherwise, the court stated, !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 29 Abdul, supra note 10.  30 R.v. N.S., supra note 3 at para. 82. 31 Ibid.  32 Police v Razamjoo, [2005] D.C.R. 408 (DCNZ) [Razamjoo].                                                           Saving Face in Canadian Courtrooms  ! 34 how could they know “that the person re-entering the witness box today is the same person who was there yesterday?”33  For identity purposes, the court could ask niqab-wearing women to show their faces to a female member of the court staff.  It has been indicated in the past that niqab-wearing women have been very cooperative in coordinating with the female staff for this purpose in all sorts of proceedings.  In 2009, in the case of Muhammad v. Enter Rent-A-Car (infra note 57), the plaintiff, Muhammad insisted on wearing her niqab while she was testifying.  The Michigan trial judge dismissed the case on the basis that witness credibility was at stake because facial expressions could not be seen.  As a result, concerns over the conflict of interest between two constitutional rights – the right!to freedom of religion and the right to a fair trial – attracted great deal of attention of policy makers.  The Michigan Judges Association and the Michigan District Judges Association adopted a new statewide rule “giving judges ‘reasonable’ control over the appearance of parties and of witnesses, to observe the demeanour of such individuals, and to ensure they can be accurately identified.”34  From the wording of this new Michigan evidence rule, it can easily be observed that the primary concern of the !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 33 Anita L. Allen, “Veiled Women in the American Courtroom: Is the Niqab a Barrier to Justice?” Public Law and Legal Theory Research Paper Series, Research Paper No. #10-25 (20 October 2010), online: Social Science Research Network  < papers.cfm?abstract_id=1651140&>. 34 “New Rule Allows Michigan Judges to Control Witnesses’ Dress” First Amendment Center (18 July 2009), online: First Amendment Center, Vanderbilt University  <http://www.firstamendment>. Rayhan Asat!  ! 35 Michigan justice system is to identify the party to the dispute accurately.  Assuming that the sole purpose of adopting such a rule is verify the identity of the niqab-wearing women, there are ways of doing so other than asking her to remove her veil to a female court staff or to appear for the duration of a trial unveiled.  It is correct to say that it is easy to verify the identity of a person whose full face is in plain view, but the female form behind the niqab could be almost anyone of similar weight, height and color.35  With respect to this call of taking control in a courtroom, the argument could be made of religious preference.36   It has been argued by many scholars that women of! Muslim faith wearing the niqab are neither disruptive nor an affront.  They have a right not to be observed, so long as they can be seen, heard and identified in other straightforward and appropriate available ways.37  In the American scholarly literature, scholars have argued38 that albeit the Michigan evidence rule is a call for a !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 35 Allen, supra note 33 at 21.  36 Ibid. at 23.  37 Aaron J. Williams, “The Veiled Truth: Can the Credibility of Testimony Given by a Niqab-wearing Witness be Judged Without the Assistance of Facial Expressions?” (2008) 85 U. Det. Mercy L. Rev. 273.   38 Adam Schwartzbaum, “The Niqab in the Courtroom: Protecting Free Exercise of Religion in a Post-Smith World Comment” (2011) 159 U. Pa. L. Rev. 1533, online: < schwartzbaum/1/>.  Adam Schwartzbum quotes American jurisprudence on the topic ‘the niqab in the courtroom’ to highlight the tension between the individual right to free exercise of religion and judicial norm in the probative functions of American Courts.  He explores complex areas in which the jurisprudence is blurring questions as to what extent must criminal and civil courts                                                          Saving Face in Canadian Courtrooms  ! 36 response to different types of religious attire that appeared in the American courts, yet the reality is that it was adopted to provide positive legal authority for Michigan judges (like Judge Paruk),39 to order a woman wearing the niqab (like Ginnah! Muhammad) to uncover their faces or leave the courtroom.  The niqab has been reviled as a symbol of women’s political oppression and subservience in some jurisdictions. According to Muslim belief, the headscarf is an expression of modesty and is required by religion.  However, many arguments from proponents of a ban on the niqab assume various degrees of coercion and oppression.40  Though it is beyond the scope of this essay to argue the merits of niqab in !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! accommodate religious preference?  He tries to assess free exercise law on American jurisprudence to identify niqab in a courtroom.  He argues that religious obligation to wear different forms of headscarf should be respected by courts.  In his conclusion, he provides that the arguments in American case law assessing the compelling interest of the state fail to stand as a strong argument; he demonstrates that the arguments to wear religious headscarf apply with greater force in protecting the rights of the parties.  39 Judge Paruk sat on this case.  Judge Paruk asked the plaintiff if the niqab is her religious belief or cultural practice?  Judge Paruk believed this to be her cultural practice from her experience dealing with other Muslim women in her courtroom.  By quoting from Judge Paruk’s question on religious practice, Schwartzbaum (ibid.) demonstrates that there are divergent practices within the Muslim community: he categories different types of Islamic headscarf to highlight that the niqab is the most controversial in western society, but it is an essential part of religious practice for Muslim women.  40 Rayhan Asat, “Veil or No veil, Are we on the Right Track?” (Paper delivered at the 7th Cornell Inter-University Graduate Student Conference, 21 April 2011), online: Cornell University <>.  Rayhan Asat!  ! 37 Islamic culture, as a Muslim scholar, 41  whose cultural expressions and national identity have not been subject to this heated debate and yet whose religious identity and belief is strongly tied into this topic, I wish to contribute to this scholarship from a personal perspective.  Considering the qualitative research that has been done to date to illustrate the merits of veiling in the Islamic belief and culture, this paper was not intended to extend into the literature to the merits of veiling.  However, I felt the need!to extend this scholarship to some of the fundamental questions that arose out of the controversial  ‘Islamic veiling’.  2. Perceptions of the Islamic headscarf practice42  2.1  A nuanced perspective on veiling   There are various terms used to refer to Islamic headscarves: hijab, niqab, and burka to name a few.43  Each of them is subject to various degree of debate.  Hijab is a loose garment that covers the hair and shoulders, but not the face.  Thus, hijab is less controversial, particularly in the courtroom context; accordingly, there are very few cases that presented in the !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 41 The author is a Uyghur Muslim from the Northwest of China, and the religious practice of Islamic headscarf is less common due to state regulation.  42 The background literature of Islamic veiling is made reference to in my early scholarly work; see Asat, supra note 40.  43 I will particularly look at the most controversial Islamic dress, the niqab, which has been subject to heated debate for the purpose of this paper.!                                                         Saving Face in Canadian Courtrooms  ! 38 courtroom proceedings where the hijab becomes an obstacle.  And yet such a scenario finds itself in the courtroom.  For example, the Chief Justice of the Peshawar High Court in Pakistan banned female lawyers from wearing the hijab in court, stating that:!              You are professionals and should be dressed as required of lawyers…We cannot identify veiled woman lawyers and suspect that veiled lawyers appear to seek adjournment of! proceedings in other lawyers’ cases.44!  !A niqab is a veil that covers the whole face, and a burka is covers not only the head and face but also the body. Thus, these two Islamic headscarves have generated heated debate in scenarios where the facial expressions of niqab- or burka- wearing women are important elements in courtroom proceedings. This controversy is the focus of this paper. However, in this section, the paper discusses the general concept of Islamic veiling from a nuanced perspective.            Forming a basic knowledge of the concept of Islamic veiling, as an outsider, one might wonder, what does this controversial article of clothing mean to Muslims themselves, and how are assumptions about this meaning portrayed in Western context?  According to Muslim belief, the headscarf is an expression of modesty and is required by religion. 45 !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 44 Ryan Olden, “Pakistan Judge Forbids Muslim Veils in Courtroom” Jurist (4 November 2006), online: University of Pittsburgh < veils-in.php>. 45 Karima Bennoune, “Secularism and Human Rights: A Contextual Analysis of Headscarves, Religious Expression, and Women’s Rayhan Asat!  ! 39 However, many arguments from proponents of a ban on the niqab assume that wearing the headscarf involves various degrees of coercion and oppression.  In order to discuss Muslim women’s practice of wearing the niqab in a courtroom, this article first! provides a summary introduction to how certain religious symbols such as veiling have been perceived in many civil societies.  In so doing, this article provides a critical analysis of how gender equality, oppression of women, and self-emancipation play out in this context.  Some Muslim scholars who oppose the banning of the veil make the argument that religious symbols should be perceived as a way of religious, cultural identity.  Social surveys and examinations show that banning the veil or giving it a meaning that is different from its traditional meaning further increases racial discrimination in a society where only well-integrated and socially assimilative Muslim populations are favoured.  If that is the outcome, what is the rationale for certain nation-states to ban veiling from public sphere?  2.2 Possible room for just explanation towards veiling  Looking at the various responses to Islamic headscarf traditions in Western democratic counties it is evident that at the heart of this very controversial issue is how nations address multiculturalism and the extent of their commitment to diversity and to embracing differences of religion and culture, !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! Equality under International Law” (2007) 45 Colum. J. Transnat'l L. 367.!                                                         Saving Face in Canadian Courtrooms  ! 40 and the ways in which freedom of religion operates in a true democratic society with the accommodations of state and judicial system.  It is true that legal and public policy! acceptance or accommodation of Muslim headscarf depends on a variety of factors, but it is most often rooted in a constitutional proportionality test that balances the right to freedom of religion against the possible threat to safety, security and public order.46  In view of the many interpretations applied by different countries to this balance, and the various meanings attached to the Islamic headscarf in different societies and the outcome of different approaches fostered in different jurisdictions, we might ask how to respond to the Islamic headscarf in a democratic society?   Comparatively, the approaches taken by different countries simply demonstrate that the central issue here is not about whether a society deals with the religious headscarf in a manner that contrasts sharply with the approach adopted by countries with a longer history of immigration, but it is a matter of the deference and accommodation that a truly pluralistic state displays with respect to cultural and religious expression.  Some scholars argue that the United States is constitutionally pluralistic in the sense of expressing state neutrality in religion rather than seeking to replace religion with humanist values as! !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 46 See Laura Barnett, “Freedom of Religion and Religious Symbols in the Public Sphere” Legal and Legislative Affairs Division, Parliamentary Information and Research Service, Library of Parliament (25 July 2011), online: Parliament of Canada < e.htm>. Rayhan Asat!  ! 41 France does.47  The French obsession with the Islamic headscarf, according to Professor Nathaniel Berman, is an outcome of “national stupidity that prevailed in Europe.”48  However, the banning in France of the niqab or all forms of body covering in public institutions is justified under the notion of ‘secularism- laïcité’.  Laïcité indicates a specific state policy with respect to religion, although it varies broadly between countries.  In the more extreme example of countries such as France and Turkey, laïcité indicates an active program whereby the country is promoted as fundamentally politically and independent of any religious authority and in which a need for public order can be used to justify interference with freedom of religion – a form of anti-religion to deal with the excesses of religion.49  French secularism was designed to keep religiosity out of the public sphere and moreover, to uphold national values of liberté, égalité, fraternité.50  “Loyalty to Islam is viewed as suspect, a threat to authority of the state and a form of sectarianism.”51  To !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 47 See Ibrahim Abraham, “Hijab in the Age of Fear: Security, Secularism, and Human Rights” (2006) 19:2 Australian Religion Studies Review 169. 48 Nathanial Berman (Professor at Brown University), “Address” (Keynote speech delivered at the Fourth Annual Toronto Group Conference for the Study of International, Transnational and Comparative Law, 28 Jan 2011) [unpublished]. 49 Sebastian Poulter, “Muslim Headscarves in School: Contrasting Legal Approaches in England and France” (1997) 17 Oxford J. of Legal Stud. 50.  50 French for ‘liberty, equality, fraternity (brotherhood)’. 51 Fareen Parvez, “Muslim Class Relations and the Freedom to Veil: Secularism and the “Burqa” in France and India” Irmgard Coninx Stiftung (n.d.), online: Irmgard Coninx Stiftung <http://www.irmgard-                                                         Saving Face in Canadian Courtrooms  ! 42 the contrary, there has been different discourse as to the concept of ‘secularism’.   According to some scholars, secularism refers to impartiality toward religion, not anti-religionism52 and is best able to support religious freedoms.  To be secular should mean to allow religion in public debate, to give equal recognition and respect to other members of the community, and where necessary to limit religion’s impact (like any other fundamental freedom) within the boundaries of respect and equality.  When the concept of secularism is used to selectively exclude certain religious minorities, the partiality of the state is revealed and the myth of neutrality is exposed.53  If secularism is defined in this way, is the concept similar to pluralism?  The answer is no, for a reason that current doctrine of secularism was not the original meaning, nor is it a meaning that recognizes diversity! pluralism.54  In a truly pluralistic state, citizens feel free to demonstrate their meaningful expressions of fundamental religious freedoms.  This is in contrast to a state55 that favors ‘well integrated’ Muslims.  !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! Religion/Essay.Parvez.pdf> at 4. 52 Nayereh Tohidi, “Islamic Feminism’: Perils and Promises” (2002) 16 The Middle East Women’s Studies Review 13.  53 Iris Marion Young, “Polity and Group Difference: A Critique of the Ideal of Universal Citizenship” (1989) 99:2 Ethics 250. 54 Iain T. Benson, “Defining Terms – Belief, Secularism and Pluralism” (Paper delivered at How the Media Cover Religious Pluralism in Canada – Centre for Faith and the Media Conference, 21-22 October 2005), online: Centre for Faith and Media < Terms.pdf>. 55 The French obsession with Islamic headscarf is the outcome of such nationalization.  Rayhan Asat!  ! 43  Some Muslim scholars who oppose the banning of the veil make the argument that religious symbols should be perceived as an expression of cultural identity.  Social surveys and examinations showed that banning the veil or giving it a meaning that is different from its traditional meaning further increases racial discrimination in a society where only well- integrated and socially assimilative Muslim populations are favoured.  If that is the outcome, what is the rationale for certain states to ban veiling from public sphere?  One of the common arguments advanced by most scholars is that the Islamic headscarf, whether it is called hijab56 or niqab, has been assigned different meanings in public discourse of rights and national security.  In the case of Sahin v. Turkey,57 gender equality was of the utmost concern for the European Court of Human Rights.  There are certainly debates to be held concerning the niqab in the course of! creating, maintaining, and perhaps even subverting gender hierarchies, but the European Court of Human Rights has not yet in any context and to any satisfaction judicially considered what role the hijab plays in gender issues.  So what is this obsession with the Islamic headscarf?  Is it not true that states engage in a silent violence and oppression by taking away freedom of religion, cultural and religious expression that have been practiced by Muslim women for years, moreover, through banning by denying access to education, professional !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 56 Hijab is a type of Islamic dress that is less controversial compared to the full body dress of niqab; it could be seen as a loose garment.  57 Sahin v. Turkey, 44774/98 [2005] ECHR 819 (10 November 2005).                                                          Saving Face in Canadian Courtrooms  ! 44 employment, access to justice58 does the state take advantage of power dynamics and exclude, isolate, and radicalize a particular group of society?  Indeed, there were few cases that reported of coercive veiling!but one has to differentiate between voluntarily veiling and coercive veiling. There are inevitable individual cases that might occur in western society, taking on way different shapes and forms.59  Within international law norms and the human rights context, whether it is a fashion hijab or Muslim headscarf, one should avoid attaching negative meanings towards a simple headscarf that does not accord with our fashion and taste.!! ! In that regard, a truly pluralistic or democratic state is one where everyone has the right to manifest his or her religion and culture without being perceived by the larger community as narrow-minded or oppressed.  There are several establishments in society, where freedom of religion and state neutrality is carefully considered, but at the same time, where limitations to the free exercise of religion are imposed.  There are ways in which states could balance those particular situations, without infringing upon individuals right to freedom of religion and expression.  In cases where national security is at stake and the possibility of personal identification is essentially required, Muslim women will be more than willing to cooperate if they !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 58 In the case of Muhammad v. Enter Rent-A-Car, No. 06-41896 (Dist. Ct. Mich. Oct. 11, 2006) [Muhammad] Muhammad’s lawsuit brought against a car company was dismissed on the ground that she refused to remove her veil, which was required by the trial judge for weighing her witness credibility.  As a result she lost her day in court.  59 Here I am referring all forms of violence women might face in all society. Rayhan Asat!  ! 45 feel that their religious and cultural identity have been well respected and accommodated.  Accordingly, the courtroom proceedings are not an exception to the same level of deference and accommodation for Islamic belief.  It is ironic that within western world, different approaches were adopted towards the Islamic headscarf in different jurisdictions. With the exception of absolute or partial banning of niqab in Europe, countries with long-term immigration policy such as the United States and Canada have demonstrated different venues.  Historically, these two countries fostered similar approach with regard to Islamic religious headscarf-niqab, in both jurisdictions except Quebec! province;60 the niqab has been portrayed in a multiculturalism context. Both states choose to integrate cultural expressions based on different traditions. However, with respect to the niqab in a courtroom, United States Court surprisingly took a very different approach than Canadian court.  The Michigan court case noted above supports this argument.   In conclusion, findings in different jurisdictions and their justifications for either allowing or banning the niqab in the courtroom proceedings further our discussion by providing a jurisdictional debate.  As argued previously, this essay has to divorce itself from the jurisdiction that absolutely or partially !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 60 Bill 94, proposed in Quebec, would deny essential government services, public employment, educational opportunities, and health care to Muslim women who wear the niqab (see Bill 94, An Act to establish guidelines governing accommodation requests within the Administration and certain institutions, 1st Sess., 39th Leg., Quebec, 2010 (reinstated during the 2nd Sess., 39th Leg., 2011)).                                                           Saving Face in Canadian Courtrooms  ! 46 banned niqab from the public sphere.  Owing to the fact that such an effort for debating accommodation for veiled women in the courtroom setting is meaningless, when there is no room for deference for religious practice of Islamic veiling in those jurisdictions at any level.   3. Approaches to the niqab in the courtroom setting   The starting point for examination of debate must be an! understanding of the basic terms.  So far as concerns over niqab in the courtroom proceedings, we have acquainted ourselves with the intrinsic matters by learning the background knowledge of veiling and the public banning of veiling in different jurisdiction. Thus, we are being informed of the distinguished feature of our justice system in which there is no official banning and yet the niqab in the courtroom proceedings have been very controversial.   Findings in different jurisdictions have supported that courts are inclined in favor of women wearing the niqab where it does not prejudice a fair trial or interfere with the administration of justice.  As Mrs Justice Cox noted: “[w]e respect the right for Muslim women to choose to wear the niqab as part of their religious beliefs, although the interests of justice remain paramount.”61  !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 61 Martin Jenkins, “Judges Back Wearing of Veil in British Courts” Birmingham Post (25 April 2007), online: Trinity Mirror Midlands Limited < news/tm_headline=judges-back-wearing-of-veil-in-british-Rayhan Asat!  ! 47  The question that remains is to what extent should the justice system accommodate religious belief?  Section 103 of the New Zealand Evidence Act of 2006 provides that a judge may permit a witness to give evidence in alternate ways on the grounds of “the linguistic or cultural background or religious belief of the witness.”62  Are the considerations set out in a! court of appeal judgment ample resources for our judges to exercise their discretion in determining whether or not to accommodate religious beliefs?  Are we on the right track, considering this appeal judgment?  Should Canadian policy makers respond to the issue in the same way as New Zealand did by providing statutory considerations?63  Is the framework for balancing conflicting interests that outlined in the court of appeal judgment sufficient for the future references? This section of paper will answer these vital questions.   4. Accommodating religious beliefs    In broad terms, there are few jurisdictions in the world’s legal systems today that are inclined to accommodate the niqab in the courtroom. Yet, such accommodation was subject to heated debate and controversy. Moreover, hardship arose in the !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! courts&method=full&objectid=18961795&siteid=50002- name_page.html>. 62 New Zealand Evidence Act 2006 (N.Z.), 2006/69, S103, online: New Zealand Parliamentary Counsel Office <http://www.legislation.>.  63 In the aftermath of Razamjoo, supra note 32, policy makers responded to the issue that arose in this case by proposing a statutory means of accommodation.                                                          Saving Face in Canadian Courtrooms  ! 48 acceptance of such accommodation. Given the different approaches to accommodation evident in different jurisdictions reviewing this matter in a just manner is important.  From this point of view, it will appear that the comparative analysis of jurisdictional approaches will assist us in finding a reasonable solution for the Canadian justice system, perhaps it will be of! great significance in keeping the face in the Canadian courtrooms. Accordingly, it is worth observing other jurisdictions.   It is clearly fortunate for members of the Muslim community to be able to practice their cultural and religious belief in Canadian multicultural society.  Such freedoms do not exist everywhere; however, when such practice find itself in the courtroom proceedings, it became difficult to see it as an isolated matter, rather it became a problematic one.  Hence, the whole debate over the truthfulness of the criminal proceedings, the accused rights to a fair trial and the integrity of the criminal justice system associate to niqab-wearing women desire the necessity of careful examination.   Very few jurisdictions in which there was no official banning opt for accommodating veiled women in the court proceedings.  Among those jurisdictions, although it is neither possible nor desirable to reach the same solution in justly addressing this issue, it is absolute that survey of this kind would underline how the justice system of our own approached the matter compare to other justice system.  Rayhan Asat!  ! 49  Take the example of the Michigan case.64  Indeed, the Michigan court failed to exercise proper enquiry into the niqab- wearing women’s religious belief, and led to heated debate in! the American scholarship.  This somewhat remote attitude of the Michigan court flows from the inadequate resources on the judge’s part.  Thus, such attitude and insufficient knowledge fail to satisfy the fundamental concept of removing hardships and correcting injustice of the judicial system.  Comparatively, the Ontario Court of Appeal carried out a proper inquiry into N.S.’s religious practice and such an inquiry favored veiled women’s position.  In the end, the ends of justice rightly served.   In this section of the paper, in order to put my position forward in accommodating veiled women in the courtroom settings, I examine variety of instances where non-verbal communication plays important role and yet not determinative instrument in the fact-finding process.  And going one step further, I will analyze the factual scenarios where factual expressions cannot be evaluated by the fact finder for exceptional reasons.  In the view that while claims about the necessity of showing a woman’s face in a courtroom context will undoubtedly be repeated, it should not be forgotten that there are circumstance where judges will take evidence without being able to see the witness’s face: for example where the evidence is taken over the telephone65 or where the judge is !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 64 Muhammad v. Enter Rent-A-Car, supra note 58.  65 Bakht, “Objection”, supra note 21.                                                           Saving Face in Canadian Courtrooms  ! 50 visually impaired. 66   Such evidence is permitted by the Criminal Code of Canada. !For example, section 714.3. of the Criminal Code permits the reception of evidence in certain circumstances by telephone.  Finally, I provide empirical evidence pertaining to non- verbal communication in the Canadian jurisprudence.   4.1 Historical values of the Canadian jurisprudence   Before entering upon the case law references in the Canadian jurisprudence with respect to conflicting rights that flow from this topic, I should mention the outstanding scholarship of Professor Natasha Bakht. In her article, “Objection your Honour! Accommodating Niqab-wearing Women in Courtrooms,”67 Professor Bakht develops her argument with the premise that credibility based on demeanour evidence is unreliable tool to which to judge truthfulness.  Based on this premise, she primarily draws cases from Canada, United States, Britain and New Zealand to debate in depth the necessity of accommodating niqab in the courtroom settings. For the purpose of this section, I combine the case law primarily drawn from the appellate court judgment and Professor Natasha Bakht’s scholarship to put my position forward in this paper.   Regardless of the reasons why some Muslim women wear the veil, regardless of the kind of veil maybe, and even if! !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 66 In the United Kingdom, there are a number of blind justices who sit regularly.  Their blindness is only an obstacle in a small number of cases where there are exhibits requiring visual scrutiny.!! 67 Supra note 21.  Rayhan Asat!  ! 51 one believes that their choice is the result of false consciousness, for these women the veil is the critical factor of their being.  To deny them a fundamental legal institution on the basis of identity is to deny them dignity.68  Professor Bakht makes a reference to case law such as  R. v. Jabiaranha (2001 SCC 75, [2001] 3 S.C.R. 430) and Laurentide Motels v. Beauport ([1989] 1 S.C.R. 705) to demonstrate the significance of the evidence rather than demeanour and facial expression.  She argues that demeanour may, of course, indicate truthfulness but it can also be misleading.  She goes on to consider that the evaluation of demeanour is maybe a far less reliable gauge for the veracity of testimony than the examination of the logic and coherence of an account.  She identifies the danger of relying on demeanour outside the judicial context.   She concludes that given the unreliability of depending solely on demeanour evidence, women whose faces are covered by the niqab should not then pose an insurmountable problem to the dispensation of justice in a courtroom setting.  She strongly urges sensitivity in the courtroom stating: “judges must be sensitive to the impact that removing the veil can have in such a public space and be creative in their measures of accommodation.”69   Moving with that line, in the Court of Appeal judgment,! the strong argument on the truthfulness of demeanour evidence and the presumption of how demeanour can be misleading !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 68Ibid. at 117. 69 Ibid. at 132.                                                          Saving Face in Canadian Courtrooms  ! 52 reached its pinnacle through accurate analogy by the appellate court.  As the court said:  There is also a significant public interest in getting at the truth in a criminal proceeding. Arguably, permitting N.S. to testify while wearing her niqab would promote that interest.  Without the niqab, N.S. would be testifying in an environment that was strange and uncomfortable for her.  One could not expect her to be herself on the witness stand.  A trier of fact could be misled by her demeanour. Her embarrassment and discomfort could be misinterpreted as uncertainty and unreliability. Furthermore, there may be cases where the Crown determines that it cannot in good conscience call upon the witness to testify if she is forced to remove her niqab.  In those cases, the evidence will be lost and a trial on the merits may be impossible — hardly a result that serves the public interest in the due administration of justice.70   Moving along that line, let us focus on case study of empirical evidence on demeanour evidence and facial expressions that niqab-wearing women pose and the argument on such circumstances. Inevitably, it appears necessary to scrutinize judicial assessment of credibility based on demeanour evidence as to veiled women in the courtroom settings.   In R. v. Norman,71 the Ontario Court of Appeal noted that! the appearance of honest and integrity on that part of witness may provide little assistance in assessing the reliability of their !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 70 R. v. N.S., supra note 3 at para. 81. 71 R. v. Norman (1993), 26 C.R. (4th) 256 (Ont C.A.) [Norman].  Rayhan Asat!  ! 53 testimony because witness may well believe in what they are saying, regardless of whether it is accurate or not.  Justice Finlayson stated:72 I do not think that an assessment of credibility based on demeanour alone is good enough in a case where there are so many significant inconsistencies, the issue is not merely whether the complainant sincerely believes her evidence to be true; it is also whether this evidence reliable. Accordingly, her demeanour and credibility are not the only issue. The reliability of the evidence is paramount.73  Going one step further, empirical evidence highly suggested that the assessment of demeanour does not depend upon seeing the face or entire face of the speaker, most often ordinary people could not make a effective use of demeanour in deciding weather to believe a witness.   It should be noted that jury could still assess veiled women’s body language, and the delivery of her answer.  It would be essential for justice system to weight the demeanour together with evidence.  Given the unreliability of depending solely on demeanour evidence, women whose faces are covered by the niqab should not pose an insurmountable! problem to the dispensation of justice in the courtroom proceedings. 74  The above analysis of assessing the credibility of niqab- wearing women in courtroom proceedings can be more effective with the following section.  Seemingly, with respect to !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 72 Bakht, “Objection”, supra note 21 at 122. 73 Norman, supra note 71 at para. 47.  74 Bakht, “Objection”, supra note 21 at 123.                                                          Saving Face in Canadian Courtrooms  ! 54 veiled women in the courtroom settings, the most common argument presented as to the topic, the credibility of the veiled women is at stake for not being able to observe facial expressions of veiled women.  Such shortfalls impede cross- examination.  To that regard, the Court of Appeal judgment professed two concerns within the line of cross-examination. According to the court, covering the face of a witness may impede cross-examination in two ways.  First, it limits the trier- of-fact’s ability to assess the demeanour of the witness. 75  Second, witnesses do not respond to questions by words alone.  Non-verbal communication can provide the cross-examiner with valuable insights.76  The same words may, depending on the facial expression of the witness, lead the questioner in different directions.  The appellate court emphasized that defence lawyers cannot simply assert the right to have a niqab removed without first making a strong case for why it is necessary.  As the court explained: For example, if the defence contends that the identity of the witness is in issue and, therefore, her face must be exposed, the defence must demonstrate an air of reality to that claim before it will be taken into account in assessing the extent to which the wearing of the niqab may affect cross-examination.77   The Court of Appeal judgment went on to articulate by citing !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 75 R. v. N.S., supra note 3 at para. 54. 76 Ibid.! 77 Ibid. at para. 73. Rayhan Asat!  ! 55 from the New Zealand case Police v. Razamjoo78 in which two Muslim women appeared before the court with burka,79 asking the court to allow them to practice the important site of their religion.  The New Zealand judge made an insightful analysis as to the role of cross-examining counsel as opposed to a judge in the truth seeking process.  Quoting from the trial judge:  Cross-examining counsel do not have the luxury of being able to make judgments as to what to ask and how to ask it against an overview such as a judge enjoys at the conclusion of a case.  A distinction needs to be drawn between the significance of demeanour in the context of such an overview and the significance of demeanour to counsel in what needs to be virtually instantaneous decisions in the course of conducting a cross- examination.80   Indeed, giving deference to the complainant’s argument, the Ontario Court of Appeal firmly stated that credibility! assessments based on demeanour could be unreliable and flat- out wrong. Moreover, assessment of credibility based on demeanour can reflect cultural assumptions and biases. Judgments based on demeanour are no substitute for those based on a critical analysis of the substance of the entire evidence.  The court observed that during any trial proceeding, it can be hazardous to base conclusions solely on the demeanour or facial expressions of a witness.  However, these facial nuances play an important role in the overall truth- !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 78 Supra note 32.  79 A burka is a full body cloak worn by some Muslim women.! 80 Razamjoo, supra note 32 at para. 81.                                                          Saving Face in Canadian Courtrooms  ! 56 seeking process.  Historical precedents indicated that within Canadian jurisprudence, appellate courts have repeatedly cautioned against relying exclusively or even predominantly on demeanour to determine credibility.  If this is an established norm in the Canadian judicial system, then why is the court challenged by the scenario, in which veiled women face the unfortunate likelihood of being denied access to justice?  One has to bear in mind that the Court of Appeal did not provide a determinative solution by holding a view that “it is not possible to craft an absolute solution, since religious rights and the sanctity of a fair trial are extremely powerful rights that cannot eclipse one another.”81 ! It is common knowledge that the criminal justice system assumes that the truth is most likely to emerge through a public adversarial process. Face-to-face confrontation, especially between an accused and his accuser, is a feature of that adversarial process.82  An accused who is denied the right to see the full face of a Crown witness, particularly the accuser, during cross-examination loses something of potential value to the defence.  Does the niqab pose an obstacle to the defendant’s right to a face-to-face confrontation?  Importantly, is the niqab a barrier to justice?  Should there be limits on the defendant’s right to face-to-face confrontation with respect to veiled women, given that her fundamental rights to freedom of religion is also conflicting as such?  !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 81 “Niqab Decision”, supra note 14.! 82 R. v. N.S., supra note 3 at para. 60.  Rayhan Asat!  ! 57 4.2  Does the niqab pose a barrier to justice?   While it is clear that face-to-face confrontation between the accused and prosecution witnesses is the accepted norm in Canadian criminal courts, there is no independent constitutional right to a face-to-face confrontation.  As the groundbreaking Court of Appeal judgment provided: Departures from the traditional face-to-face public confrontation between accused and witness will run afoul of the Charter only if! they result in a denial of a fair trial to the accused.  The Charter focuses not on face-to- face confrontation per se, but on the effect of any limitation on that confrontation on the fairness of the trial.  Fairness takes into account the interests of the accused, the witness and the broader societal concern that the process maintains public confidence.83  This is a critical analysis and a fine balance provided by the Court of Appeal judgment in its attempt to reconcile competing interests. The emphasis on the substance of face-to-face confrontation is remarkable and it makes the judgment groundbreaking. The judgment distanced itself from the traditional literal sense of face-to-face confrontation to emphasize the true essence of Charter protected confrontation rights, which is manifested here as “the fairness of the trial.” Furthermore, the judgment went on to illustrate that such fairness takes into account the interests of accused, the witness and the broader societal concern that the process maintain public confidence.  This remarkable emphasis on the fairness of !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 83 Ibid. at para. 53.                                                           Saving Face in Canadian Courtrooms  ! 58 trial clearly demonstrates the multicultural heritage of our justice system.  The strong position put forward here is not to exclude the already marginalized group84 but to focus on the broader societal interest that harmonizes multiculturalism of! Canadian society.    Although the accused enjoys the absolute right to face-to- face confrontation with the accuser, there are instances in which limits on the confrontation becomes necessary.  It is evident in the case law that such limitations are common in most jurisdictions. For instance, there are cases involving child victims and victims of sexual violence in which face-to-face confrontation would upset them.  In these cases, victims have been allowed to sit behind a screen to avoid eye contact with the abuser.  It is fair to say that the primary concern of the justice system is to further an important public policy, which will be discussed in the following case law.   In the case of Police v. Razamjoo, 85  Judge Moore acknowledged that what was at stake in this case were the rights of witnesses to manifest their religious belief, the defendant’s right to a fair trial and the public’s right to an open and public criminal justice system. 86  Judge Moore concluded that the two witnesses would be allowed to give their evidence from behind screens so that only the judge, counsel and female court staff !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 84 Because most people have little contact with fully veiled women and because many perceptions against veiled women confirm their status as “other” (see Natasha Bakht, “Objection”, supra note 21 at 127). 85 Supra note 32. 86 Ibid. at para. 107.  Rayhan Asat!  ! 59 would be able to see the witness’s face.   In Mattox v. United States87 the United State’s Supreme Court highlighted the central concerns of the Confrontation Clause, which is the ‘f