The majority compromise
The forging of a majority came at the expense of simplicity.
Under a new legal test, trial judges will be required to balance the right to a fair trial with the strength of a witness’s religious belief.
In arriving at this decision, the majority explicitly rejected the idea of a hard-and-fast rule that is applicable to any case.
“A secular response that requires witnesses to park their religion at the courtroom door is inconsistent with the jurisprudence and Canadian tradition, and limits freedom of religion where no limit can be justified,” Chief Justice Beverley McLachlin said.
“On the other hand, a response that says a witness can always testify with her face covered may render a trial unfair and lead to wrongful conviction,” she added. “The right to a fair trial is a fundamental pillar without which the edifice of the rule of law would crumble.”
The majority noted that science has yet to establish that “demeanour” evidence does not provide valuable clues to the truthfulness of a witness.
Under the four-part test they established, the majority said that trial judges must first test the sincerity of the witness’s religious belief. Does she habitually appear in public wearing the niqab, for example?
The next task is for a trial judge to consider the extent to which fairness would be compromised if the witness, given her role in the case, were to testify with her features obscured.
In prosecutions where the evidence of a witness is critical and her credibility hotly contested, Chief Justice McLachlin said, a trial judge should seek a compromise that can protect every interest at stake.
These measures could include clearing males from the courtroom or allowing the witness to testify from behind a one-way screen or by closed-circuit television.
If a trial judge has still failed to resolve the matter, Chief Justice McLachlin said, he or she must then balance every element of the case, the social context and even the circumstances in the courtroom – such as who is present – in order to reach a final judgment.
“The judge should also consider broader societal harms, such as discouraging niqab-wearing women from reporting offences and participating in the justice system,” the majority added.
The right to a fair trial
Judge Louis LeBel, who has gradually become a champion of criminal rights on the court, said the wearing of the niqab runs counter the basic principles of openness and communication, regardless of religion, gender or origin.
“Rather, it restricts them,” Judge LeBel said. “The niqab shields the witness from interacting fully with the parties, their counsel, the judge and, where applicable, the jurors.”
Unbridled cross-examination lies at the core of the trial process and cannot be eroded, Judge LeBel said. “The price might very well be reading the most basic rights of the accused out of the criminal law and of the Charter,” he observed.
Judge LeBel faulted the majority judges for stating that trial judges can tell in advance of a witness’s testimony whether her credibility is likely to end up being a key factor in the case.
“What looked unchallengeable one day might appear slightly dicey a week later,” he said. “Many cross-examinations fail or, in the end, actually assist the prosecution. Some succeed, on occasion brilliantly.”
Judge LeBel warned his colleagues against abdicating their responsibility by tossing the niqab issue back to trial judges rather than giving them a hard-and-fast rule.
“Given the nature of the trial process itself, the niqab should be allowed either in all cases or not at all when a witness testifies,” Judge LeBel said. “In my opinion, a clear rule should be chosen.”
Justice Rosalie Abella gestures during a swearing-in ceremony as Justice Marie Deschamps looks on at the Supreme Court of Canada for her and Justice Louise Charron, in Ottawa, Monday Oct. 4, 2004. FRED CHARTRAND
The right to religious freedom
Judge Abella, who is held in high esteem by feminists and minorities, warned that the price of unveiling Muslim women may be the successful detection and prosecution of rapists.
Complainants who sincerely believe that they must wear a niqab in public may be not only dissuaded from going to police, but from testifying at the trials of others, she said.
“It is worth pointing out as well that where the witness is the accused, she will be unable to give evidence in her own defence,” Judge Abella noted. “To those affected, this is like hanging a sign over the courtroom door saying: ‘Religious minorities not welcome.’ ”
Once the public sees that Muslim sexual-assault complainants are unwilling to come forward, Judge Abella said, confidence in the justice system may be damaged.
She said that courts have accommodated many witnesses who suffered from visual, oral or aural impediments – including stroke victims or those who testify through interpreters. “I am unable to see why witnesses who wear niqabs should be treated any differently,” she said.
Judge Abella said there is no sensible reason to believe that a witness such as N.S. would don the niqab in order to gain an unfair advantage in testimony.
“The record shows that N.S. has worn her niqab for five years in sincere religious observance,” she observed. “In my view, she has met the sincerity threshold.”
Judge Abella also noted that a witness in a niqab will still express herself through her eyes, body language and gestures.
“Moreover, the niqab has no effect on the witness’s verbal testimony, including the tone and inflection of her voice, the cadence of her speech, or, most significantly, the substance of the answers she gives,” she said.