Witness may be required to remove niqab while testifying: top court

The Globe and Mail

Canada’s Supreme Court. (Adrian Wyld/THE CANADIAN PRESS)

A Muslim witness may be required to remove her niqab veil to testify in court depending on the seriousness of the case and the sincerity of her religious beliefs, the Supreme Court of Canada ruled Thursday.

The decision means that a Toronto sexual assault trial that was halted during the preliminary inquiry stage will resume, now that the trial judge has instructions on how to assess the complainant’s request to testify from behind her veil.

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In its 4-3 decision, the court said there are times when even a significant religious belief must bow to other social and legal concerns.

“An extreme approach that would always require the witness to remove her niqab while testifying, or one that would never do so, is untenable,” Chief Justice Beverley McLachlin said, writing on behalf of several of the judges in the majority.

“The answer lies in a just and proportionate balance between freedom of religion and trial fairness, based on the particular case before the court,” she said. “A witness who for sincere religious reasons wishes to wear the niqab while testifying in a criminal proceeding will be required to remove it if (a) this is necessary to prevent a serious risk to the fairness of the trial, because reasonably available alternative measures will not prevent the risk; and (b) the salutary effects of requiring her to remove the niqab outweigh the deleterious effects of doing so.”

The chief justice said that permitting a witness to conceal her face behind a niqab in all cases would rob accused people of the right to a fair trial. It could also harm public confidence in the justice system, she said.

“However, never permitting a witness to testify wearing a niqab would not comport with the fundamental premise underlying the Charter that rights should be limited only to the extent that the limits are shown to be justifiable,” she added. “The need to accommodate and balance sincerely held religious beliefs against other interests is deeply entrenched in Canadian law.

The Canadian Council on American-Islamic Relations applauded the ruling, calling it a “resounding affirmation” of Muslim women’s decisions to wear niqabs, said lawyer Faisal Bhabha.

“The court made it very clear that people are not required to park their religion at the door, so to speak,” said Mr. Bhabha, who represented the organization at the Supreme Court.

After initially reacting in disappointment, Salma Siddiqui, president of the Muslim Canadian Congress, reconsidered the ruling and praised it for not creating a blanket rule allowing women to wear niqabs in courtrooms. The organization, which was granted intervener status in the case, argued there is no religious requirement behind a Muslim woman’s decision to wear a niqab.

“It has not given a green light that yes, everyone can wear a niqab,” she said. “I don’t think that there is an appetite in the Canadian public for such a debate and waste of taxpayers’ money for the judges to keep on going back” to determine in each case whether women can wear niqabs in court.

Ms. Siddiqui said she believes that the judgment will mean that the woman at the heart of the case will not allowed to wear a niqab while testifying.

The court was faced with the task of balancing religious freedom with the right to a fair trial in a case that erupted after a sexual assault complainant asked to testify from behind a niqab veil.

The key question for the judges was: Can religious ritual and observance trump the right of defendants to a fair trial? While the court has wrestled with religious protections in the past, rarely has a case spawned such a violent clash of principles.

The Toronto complainant – known only as N.S – has been adamant about her religious convictions. At the same time, the right to a fair trial is held as near sacrosanct within the justice system.

To complicate things further, a third principle – the need to make the court system hospitable to rape complainants and members of visible minorities – loomed no less large.

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.

“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