The case began in 2007, when N.S. – a Toronto woman whose name is protected by a publication ban – alleged that her uncle and cousin had sexually assaulted her as a child.
During their preliminary inquiry, an Ontario Superior Court judge refused her request to testify with her face covered. The case, before a jury, is suspended pending the outcome of the top-court decision.
That ruling was partially overturned by the Ontario Court of Appeal, which offered a compromise. It suggested a legal test involving assessing the sincerity of a veiled witness’s religious beliefs and the importance of her testimony.
In dissenting reasons, Madam Justice Rosalie Abella, said that the effects of forcing a woman to remove her niqab greatly outweigh the advantages. In particular, she said, sexual assault complainants may be unwilling to come forward and lodge complaints.
Writing on behalf of Madame Justice Marie Deschamps, Mr. Justice Morris Fish and Mr. Justice Thomas Cromwell, Chief Justice McLachlin said that trial judges must carefully assess several factors when faced with a witness who wishes to keep her niqab in place while testifying.
She said that the first factor involves measuring the apparent sincerity of the witness’s religious belief – for example, whether she habitually appears in public wearing the niqab.
The second factor involves an assessment of whether wearing the niqab would compromise the fairness of the trial, the majority said.
“There is a deeply rooted presumption in our legal system that seeing a witness’s face is important to a fair trial, by enabling effective cross-examination and credibility assessment,” Chief Justice McLachlin noted. “Whether being unable to see the witness’s face threatens trial fairness in any particular case will depend on the evidence that the witness is to provide.
“Where evidence is uncontested, credibility assessment and cross-examination are not in issue,” she said. “Therefore, being unable to see the witness’s face will not impinge on trial fairness. If wearing the niqab poses no serious risk to trial fairness, a witness who wishes to wear it for sincere religious reasons may do so.”
If the witness’s evidence is critical and her credibility is contested, Chief Justice McLachlin said that trial judges must then look for a compromise that can protect every interest at stake.
If no such accommodation is readily discernible, she said, trial judges must undertake a full balancing of every element of the case, the witness herself, prevailing social contexts and even circumstances in the courtroom – such as the identity and gender of those present may reduce concerns about the witness having to expose her face.
“The judge should also consider broader societal harms, such as discouraging niqab-wearing women from reporting offences and participating in the justice system,” the Chief Justice said.
At the same time, she said, the risks of creating a miscarriage of justice must be borne in mind.
“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,” she said. “The judge must assess all these factors and determine whether the salutary effects of requiring the witness to remove the niqab outweigh the deleterious effects of doing so.”
In separate reasons, Mr. Justice Louis LeBel and Mr. Justice Marshall Rothstein took the extreme position that witnesses should never be allowed to wear the niqab in the witness box.
They said that the rights of an accused person to fully cross-examine a witness - including assessing her facial expressions during questioning - is paramount.
“Since cross-examination is a necessary tool for the exercise of the right to make full answer and defence, the consequences of restrictions on that right weigh more heavily on the accused, and the balancing process must work in his or her favour,” they said.
The two judges said that, while the changing cultural mosaic of the country requires accommodations, bedrock elements of the justice system should be altered with great caution.