The right to face your accuser

[Argus]

I didn't concede that it detracts from the defendant's right to a fair trial. I said facial expression is a part of communication, true, but I don't see how it detracts from their right to a fair trial any more than someone with a big bushy beard or dark glasses because they're blind would.

Neither beard, nor dark glasses combined cover as much of the face as a bedsheet, and we would not allow dark glasses to be worn except for the blind, and personally I don't believe we ought to. Nevertheless, we do occasionally make small changes in the rules to accommodate the disabled. This woman is not disabled. There is no necessity for her to hide her face. You can't even see the mouth under a bedsheet. You can't see them licking their lips nervously. You can't see them making a face. You can't see them frowning or see any kind of emotions, be it anger, fear, or guilt. You can't see the sincerity or lack thereof in her eyes. A beard doesn't really cover much of substance. The jaw and lower cheeks are not what we use to decipher emotions in a person.

In any event, you have already admitted that it would detract from the ability to determine the veracity of her testimony. How much it would detract is really of no importance. That it would detract from that ability is sufficient to rule against it.

[charter.rights]

We understand cultural differences. We just aren't willing to bend over backwards to accommodate them at any cost - as you appear to be.

I agree. They are far superior to anyone elses, less barbaric and backward, and more accepting of diversity.

Then those who feel uncomfortable are free to not come here. There are plenty of places where women wear bedsheets without being given a second glance. They are free to live there.

That is because you have no imagination, no legal knowledge, no empathy for the accused, and no common sense.

Actually in Canada it IS our nature to recognize and accommodate each others different culture views. In fact it is encouraged in order to promote immigration and it has been a long-standing part of our heritage in Canada.

But if you wonder why Canada is able to take more immigrants per capita than any other country and make them full citizens in within four to five years with quite a bit of success, while other countries stumble over far smaller numbers, the answer is not that we are nicer, smarter or that we changed radically in the 1960s. The answer lies, first, in the culture of the minorities common among Aboriginals and in their idea of society as an expanding and mutating circle. Second, it lies in an expanding and intentional program of immigration over two and a half centuries that from the beginning was developed as a way to build citizenship and society. The second was built out of the first. We have had time to recognize most of our earlier mistakes, injustices and failures for what they were - betrayals to our original idea of fairness. Jphn Ralston Saul, A Fair Country

I can understand why you would believe the myth of Canada instead of what it really is. But if its truth disturbs you that much then you might want to consider moving to the US where culture gets thrown into one pot and people get buried under the burden of the American dream.

Edited March 22, 2009 by charter.rights

[g_bambino]

Furthermore, the intent behind the practice has always been health, not morality.

The intent behind circumcision in Ancient Egypt, Judea, Persia, and elsewhere was health? Odd that so many other civilizations flourished despite the fact that their males continued to possess the life-threatening foreskins that they were born with.

[guyser]

That is semantic bullshit. We don't say an accused has the right to hear his accuser for a reason.

Only if you beleive 'semantics' is the same as truth. Feel free to show me where it states in law what you believe.

If it was, why would the judge have had to make a ruling in this case?

As for the second part, you fail to see that the right to "face an accuser" means just that, whether one can see or not he is still 'facing' his accuser. Not the same as seeing the face of your accuser.

And as said earlier, we allow audio testimony.

We need to see their face.

You can identify whatever need you want, but the law does not agree with you.

...politically correct morons such as those I've been reading on this topic.

Thats fine, but by that measurement, the morons are actually talking about truths, and you are talking about what you want, or other emotional diatribes.

Isnt it better to be a pc moron, and be correct in law, than a myopic idiot who is just plain wrong ?

[kimmy]

Only if you beleive 'semantics' is the same as truth. Feel free to show me where it states in law what you believe.

If it was, why would the judge have had to make a ruling in this case?

The judge has already ruled once that seeing the accuser's face was relevant to his right to confront the accusations being made against him.

As for the second part, you fail to see that the right to "face an accuser" means just that, whether one can see or not he is still 'facing' his accuser. Not the same as seeing the face of your accuser.

This remains in the realm of pointless semantics.

Whatever phrase one might use to describe this, the *spirit* of the law is that the accused has the right to confront the accusations made against him.

It has been argued, and found to have merit, that allowing the accuser to wear a mask while she testifies is in conflict with the defendant's right to confront the allegations made against him.

And, while you guys have certainly gone all-out to find other examples that might achieve the same result, none of you have done anything to dispute that argument. And none of you have attempted to dispute the fact that the defendant's right to confront allegations made against him is the *paramount* consideration here.

And as said earlier, we allow audio testimony.

As I said earlier, I simply don't believe you.

Keeping in mind that audio evidence and audio testimony are not the same thing, can you provide me any kind of citation for the claim that audio testimony is allowed? I have not heard of it, at least, not in criminal trials.

I don't believe it's permitted. The witness must be physically present, except in extraordinary circumstances (the aforementioned children providing video testimony against an abusive parent, for example). I am certain that you or I can't testify by phone if we're busy that day. In fact in many cases the court goes to great expense and security risk to have a defendant physically present in the court, the right to confront a witness is held in such regard in our system.

I'm sorry, guyser, but you're going to have to convince me, because I just don't believe you're right.

You can identify whatever need you want, but the law does not agree with you.

Thats fine, but by that measurement, the morons are actually talking about truths, and you are talking about what you want, or other emotional diatribes.

Isnt it better to be a pc moron, and be correct in law, than a myopic idiot who is just plain wrong ?

Argus isn't wrong, at least not until such time as a judge reverses the initial ruling. (and if that happens, it will be under appeal in milliseconds.)

-k

[cybercoma]

[Our society is] far superior to anyone elses, less barbaric and backward, and more accepting of diversity.

Your first few points really emphasize your last one. Thanks for clearing this one up.

[Rue]

The intent behind circumcision in Ancient Egypt, Judea, Persia, and elsewhere was health? Odd that so many other civilizations flourished despite the fact that their males continued to possess the life-threatening foreskins that they were born with.

Leave it to you to question the obvious but leave it to me to suggest an exercise for you on the above issue. Go take some sand and sprinkle it profusely underneath your smegma.

Then do what you may already do. Walk around without showering for a week.

May I also suggest you try it again in the summer when its over 30 degrees a second time.

I am sure at that point, you will understand Dr. Argus' point.

[g_bambino]

Leave it to you to question the obvious but leave it to me to suggest an exercise for you on the above issue. Go take some sand and sprinkle it profusely underneath your smegma.

Then do what you may already do. Walk around without showering for a week.

May I also suggest you try it again in the summer when its over 30 degrees a second time.

Point taken. Though, that then begs the question: would a profuse sprinkling of sand over the labial folds, no bath for a week, 30 degree weather, etc., etc., not then cause ill health for women in the same regions? Or, is that also a question of the obvious that deserves a snide retort from you?

_{[ed. to add]}

Edited March 23, 2009 by g_bambino

[Argus]

Your first few points really emphasize your last one. Thanks for clearing this one up.

No problem. Our openness is one of the great things about our society. It's really absurd that some people want to preserve the kinds of cultures here that we see in the Muslim world which are so ignorant, brutish and backward. I guess they actually admire cultures where women are on the same level of importance as dogs.

[Argus]

Actually in Canada it IS our nature to recognize and accommodate each others different culture views. In fact it is encouraged in order to promote immigration and it has been a long-standing part of our heritage in Canada.

Oh please. It has NEVER been part of our heritage to embrace foreign cultures. Foreigners who came here were mocked and ridiculed for being different all the way back to the Irish, Chinese and Ukrainians. The idea of multiculturalism and acceptance that people should cling to their old foreign cultures after coming here is a relatively new one.

But if you wonder why Canada is able to take more immigrants per capita than any other country and make them full citizens in within four to five years with quite a bit of success, while other countries stumble over far smaller numbers, the answer is not that we are nicer, smarter or that we changed radically in the 1960s. The answer lies, first, in the culture of the minorities common among Aboriginals and in their idea of society as an expanding and mutating circle.

The idea that Canada has based anything remotely connected with its immigration policy on aboriginal cultures of minorities is so utterly ludicrous that only a blinkered, pie-in-the-sky, ivory tower intellectual utterly divorced from reality would even write something like that.

Second, it lies in an expanding and intentional program of immigration over two and a half centuries that from the beginning was developed as a way to build citizenship and society

.

In reality, our immigration policy was put in place to help business and develop agricultural land, and more recently to help the Liberals and then the Tories to bring in people who would presumably vote for them, and to gain political favour with various ethnic groups.

My God, liberals like to divorce themselves from reality. All this sappy intellectual romanticizing of what are clearly ad hoc policies designed out of pure expedience is truly a sign of the fantastic ability of the liberal for self-delusion.

[Argus]

The intent behind circumcision in Ancient Egypt, Judea, Persia, and elsewhere was health? Odd that so many other civilizations flourished despite the fact that their males continued to possess the life-threatening foreskins that they were born with.

They THOUGHT it was healthier. I'm not saying it actually was.

[Argus]

Only if you beleive 'semantics' is the same as truth. Feel free to show me where it states in law what you believe.

If it was, why would the judge have had to make a ruling in this case?

Uhm, yeah, I don't suppose it might have occured to you taht he based his ruling on the law, right?

As for the second part, you fail to see that the right to "face an accuser" means just that, whether one can see or not he is still 'facing' his accuser. Not the same as seeing the face of your accuser.

Utter drivel. If she can hide under a bedsheet why not put her behind a wall and then you can look at a wall and say that's your accuser as she speaks through a grille?

And as said earlier, we allow audio testimony.

Cite?

You can identify whatever need you want, but the law does not agree with you.

Apparently it does.

Thats fine, but by that measurement, the morons are actually talking about truths, and you are talking about what you want, or other emotional diatribes.

I dunno. Some people are talking about the right to a fair trial, and some people are saying they don't care about fair trials nearly as much as they care about some backward woman wanting to hide under a bedsheet lest her hair cause men to go insane.

I leave it to a neutral party to decide which are morons.

[guyser]

The judge has already ruled once that seeing the accuser's face was relevant to his right to confront the accusations being made against him.

Yes he has. But going forward we still do not have it as a rule of law.

As I said earlier, I simply don't believe you.

Keeping in mind that audio evidence and audio testimony are not the same thing, can you provide me any kind of citation for the claim that audio testimony is allowed? I have not heard of it, at least, not in criminal trials.

I don't believe it's permitted.

I'm sorry, guyser, but you're going to have to convince me, because I just don't believe you're right.

Thats okay, I should have listed it earlier (especially when I had it in front of me)

CCR:

Audio evidence — witness in Canada

714.3 The court may order that a witness in Canada give evidence by means of technology that permits the parties and the court to hear and examine the witness elsewhere in Canada, if the court is of the opinion that it would be appropriate, considering all the circumstances including

(a) the location and personal circumstances of the witness;

( the costs that would be incurred if the witness had to be physically present;

© the nature of the witness’ anticipated evidence; and

(d) any potential prejudice to either of the parties caused by the fact that the witness would not be seen by them.

1999, c. 18, s. 95.

Audio evidence — witness outside Canada

714.4 The court may receive evidence given by a witness outside Canada by means of technology that permits the parties and the court in Canada to hear and examine the witness, if the court is of the opinion that it would be appropriate, considering all the circumstances including

(a) the nature of the witness’ anticipated evidence; and

( any potential prejudice to either of the parties caused by the fact that the witness would not be seen by them.

1999, c. 18, s. 95.

[kimmy]

My apologies for not responding sooner. I have been away.

Yes he has. But going forward we still do not have it as a rule of law.

Whether or not there'll ever be a specific rule that says a face must be uncovered, the right to confront the accusations being made against him is the cornerstone of our system. There is a strong argument to be made that allowing someone to testify wearing a mask impairs the ability to cross-examine the witness, and therefore is in direct opposition to the right to mount a defense.

Thats okay, I should have listed it earlier (especially when I had it in front of me)

That's very interesting. However, I think the reference you've provided makes it clear that if audio testimony is to be considered, the defendant's lawyers argue it be excluded for the exact same reasons that the lawyers in this case have successfully argued against testifying from behind a mask.

In short, while the minutia may have helped your argument in the short term, the larger principle supports my side.

-k

Audio evidence — witness in Canada

714.3 The court may order that a witness in Canada give evidence by means of technology that permits the parties and the court to hear and examine the witness elsewhere in Canada, if the court is of the opinion that it would be appropriate, considering all the circumstances including

(a) the location and personal circumstances of the witness;

( the costs that would be incurred if the witness had to be physically present;

© the nature of the witness’ anticipated evidence; and

(d) any potential prejudice to either of the parties caused by the fact that the witness would not be seen by them.

1999, c. 18, s. 95.

Audio evidence — witness outside Canada

714.4 The court may receive evidence given by a witness outside Canada by means of technology that permits the parties and the court in Canada to hear and examine the witness, if the court is of the opinion that it would be appropriate, considering all the circumstances including

(a) the nature of the witness’ anticipated evidence; and

( any potential prejudice to either of the parties caused by the fact that the witness would not be seen by them.

1999, c. 18, s. 95.