Today the Supreme Court of Canada released the highly controversial decision of R. v. N.S. which set out the legal test for permitting a witness to wear a niqab head covering in criminal trials. Like many Canadian on this topic, the seven judge quorum were strongly divided in their views on whether or not a witness should be permitted to testify while wearing a religious covering. Defence lawyers in this case argued that permitting this practice fundamentally affected the ability for a judges, juries, and counsel to properly assess a witness’ credibility and demeanour while answering questions about allegations. The counter argument centred around the right to religious freedom protected under section 2(a) of the Charter of Rights and Freedoms.
Many perspectives on widely diverging values and opinions were offered through myriad intervenors including: the Ontario Human Rights Commission, the Barbra Schlifer Commemorative Clinic, the Criminal Lawyers’ Association, the Muslim Canadian Congress, the South Asian Legal Clinic of Ontario, the Barreau du Québec, the Canadian Civil Liberties Association, the Women’s Legal Education and Action Fund, and the Canadian Council on American?Islamic Relations.
Ultimately the Supreme Court held, with considerable dissent, that in cases where a witnesses wishes to wear a niqab a legal test ought to be applied to determine whether or not it is appropriate. The four part test requires the witness to demonstrate, on a balance of probabilities, that:
1) They are sincere in their religious views and belief that requires the niqab while testifying in a criminal proceeding;
At this stage, sincerity is not to be confused with the witnesses strength of belief.
2) Would permitting the witness to wear the niqab while testifying create a serious risk to trial fairness?
This will depend on several factors on a case by cases analysis. This might include whether the evidence is uncontested or whether credibility assessment and cross-examination is not in issue. There are no determinative factors one way or another but rather an assessment the judge must make considering all relevant factors.
3) Is there a way to accommodate both rights and avoid the conflict between them?
The judge must consider whether there are reasonably available alternative measures that would conform to the witness’s religious convictions while still preventing a serious risk to trial fairness.
4) If no accommodation is possible, then the final question is whether “the salutary effects of requiring the witness to remove the niqab outweigh the deleterious effects” of doing so?
- What is the harm by limiting religious beliefs?
- What is importance of the religious practice to the witness?
- What is the degree of state interference with that practice, and the actual context in the courtroom?
- Are their broader social harms such as discouraging niqab-wearing women from reporting offences and participating in the justice system?
- Preventing harm to the fair trial interest of the accused.
- Safeguarding the repute of the administration of justice.
- Assessing the importance of the witnesses evidence and the potential effect on the trial.
The Court did make it clear however, that “where the liberty of the accused is at stake, the witness’s evidence central and her credibility vital, the possibility of a wrongful conviction must weigh heavily in the balance.”
This decision will no doubt continue the controversial practice of niqabs in court and other public forums. The Supreme Court suggests that this is an appropriate balance for all interested parties but I doubt that this will be the last that Canadian’s will have to deal with this issue. Any change from this present state of affairs, one way or another, would have to come from Parliament which is not out of the question. I am sure that many legal scholars and advisors in the government where closely watching this decision to opine upon whether this does strike the balance as the Supreme Court held.
From my own personal point of view, there are few things more important to a skilled examiner to be able to see the witness and their demeanour. The slightest hesitation, change in expression, awkward glance, flustered complexion can all speak volumes not only about the witness’ veracity, but also how to examine the witness once these cues are revealed. There is no doubt that as a defence lawyer I would strongly oppose a witness who wishes to wear a niqab in Court. What appears somewhat academic to the Supreme Court’s analysis is that for witnesses who are “not controversial” and thereby lessening the need for removal, those witnesses are often dealt with through an agreed statement of facts thereby negating the need to call them at all. Practically speaking, any witness who actually takes the stand is important and will no doubt be contested in their application to wear a niqab. Unquestionably, this will add more strain and complexity to a legal system that is already at the brink of collapse due to over capacity. It will also be interesting to see how common this request will now come when one considers how rare the request to wear a niqab is presently.
This decision also begs another question: what about when an accused wishes to cover their own face because of religious values? Appreciating that this only applies to women in the present case, this decision would certainly apply to a female accused who wishes to express her own right to wear a niqab during a criminal trial. It will also be interesting to see what, if any, other religious accommodations are sought that have not been contemplated.
A link to the full decision can be found here.
- Sean Robichaud, Barrister & Solicitor