The Supreme Court of Canada should have said unequivocally that, when a fair trial is at serious risk and no accommodation is possible, a Muslim witness may not wear a niqab (face veil) in the courtroom.
Here is what four judges (of seven), led by Chief Justice Beverley McLachlin, said: “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.” It should do more than weigh heavily. It should tip the balance.
With that reservation, and some practical concerns, we accept the Supreme Court’s four-part test for balancing religious and fair-trial rights when an observant witness wishes to testify wearing a niqab. The striving for balance is what characterizes Canada in so many different contexts.
The legal foundation for the niqab ruling was the great media victory in R. v Dagenais in 1994, establishing that the right to free expression was on the same plane as the right to a fair trial. All constitutional rights are equal, and they should be made to work together, in a spirit of accommodation, the court said in Dagenais. It’s a very Canadian proposition.
And the niqab case was the most Canadian of cases. The two rights at issue seem inalterably opposed. A woman alleged to have been sexually assaulted by an uncle and cousin wished to testify in her niqab. A lawyer for an accused said that if he couldn’t see her face, his ability to cross-examine her would be constrained, and a judge’s or jury’s ability to assess her credibility would be compromised.
We wonder whether it’s practical, mid-trial, to decide on how contentious a witness’s evidence is likely to be. That was a point raised by two judges who would have insisted in most cases that the niqab be removed. We also wonder whether, given the complex balancing test, trials will be interrupted by costly and time-consuming appeals.
The Supreme Court judges were asked to step back from hundreds of years of jurisprudence and look at the importance of faces without stereotype or prejudice, and they concluded, reasonably, that faces matter in trials. If they didn’t, appeal-court judges would not defer to trial judges the way they do. They defer because the trial judges were there; they saw the faces.
Madam Justice Rosalie Abella, who would have granted niqab-wearers a near-absolute right, except where identity was in doubt, worries that observant Muslim women who are sex-assault victims would not go to the police. But the woman in this case took off her niqab (in front of a female official) to have her driver’s licence photo taken, and she said she would take it off for border checks. A clearer statement from the court would have helped prepare her, and others like her, for the necessities of justice.