“Wearing a niqab in the courtroom does not facilitate acts of communication,” they said. “Rather, it shields the witness from interacting fully with the parties, their counsel, the judge and the jurors. Wearing the niqab is also incompatible with the rights of the accused, the nature of the Canadian public adversarial trials, and with the constitutional values of openness and religious neutrality in contemporary democratic, but diverse, Canada.”
They warned against compromising the ability of defense lawyers to properly cross-examine a witness. “A defence that is unduly and improperly constrained might impact on the determination of the guilt or innocence of the accused,” they said.
In her dissenting reasons, Judge Abella expressed grave concerns that Muslim victims of sexual assault will not come forward.
“The majority’s conclusion that being unable to see the witness’s face is acceptable from a fair trial perspective if the evidence is “uncontested” essentially means that sexual assault complainants, whose evidence will inevitably be contested, will be forced to choose between laying a complaint and wearing a niqab, which may be no meaningful choice at all,” she said.
“Unless the witness’s face is directly relevant to the case, such as where her identity is in issue, she should not be required to remove her niqab,” Judge Abella asserted.
She reasoned that courts regularly hear from witnesses whose facial expressions are altered by the effect of a stroke or whose testimony comes via an interpreter.
“All of these are departures from the demeanour ideal, yet none has ever been held to disqualify the witness from giving his or her evidence on the grounds that the accused’s fair trial rights are impaired,” she said. “Witnesses who wear niqabs should not be treated any differently.”
David Butt, a lawyer representing the complainant in the case, told reporters Thursday that his client is content with the judgment and views the legal test set up by the Supreme Court majority as being relatively straightforward.
Mr. Butt said that N.S. is sincere in her religious beliefs and feels confident that her concerns about removing her niqab will be considered seriously by the judge who is presiding at the preliminary inquiry into the charges.
Should the case proceed to a full trial, he said, it may become necessary to argue the issue over again in that forum.
“This will be the first case, and it will be a big one,” Mr. Butt said. “Sometimes, being a legal pioneer means cutting through forests that others can walk through later. Bring it on – and we’ll call our evidence.”
Douglas Usher, a lawyer for one of the two men accused of raping the defendant, told the Supreme Court of Canada that seeing a witness’s facial reactions during testimony is critical.
Mr. Usher said that a smirk, a smile or a furrowed brow can speak volumes to a skilled cross-examiner, opening up avenues of questioning that may fracture a lying witness’s credibility in the eyes of a judge or jury.
Frank Addario, a lawyer for the Criminal Lawyers Association, cautioned the court to beware of rendering a decision that has a regrettable effect on future cases involving religious rights.
Mr. Addario warned the judges that, if the Supreme Court allows witnesses to testify in a niqab, it will open the door to all manner of claims based on religious observances.“ The next claimant who asserts that his religion forbids him being tried by a female judge or a Christian judge will have to have his claim heard,” he said.
With files from Jill Mahoney