Niqab must be removed if trial fairness jeopardized, court rules

Muslim witnesses wearing a face-covering niqab must remove it to testify if the covering would truly jeopardize a fair trial, the Ontario Court of Appeal ruled today.

"If, in the specific circumstances, the accused's fair trial right can be honoured only by requiring the witness to remove the niqab, the niqab must be removed if the witness is to testify," the Court said.

However, it said that trial judges must respect their religious rights by allowing witnesses to testify about their religious beliefs and compelling them to remove a niqab in as few cases as possible.

A 3-0 majority quashed a ruling in a high-profile Toronto case under which a sexual assault complainant was ordered to remove her niqab. The appeal judges sent the issue back to the judge who is presiding over a preliminary inquiry in the case in order that he consider the matter in far more detail.

"I would hope that if the individual rights recognized in the Charter are treated as something more than additional weapons in the lawyer's legal arsenal, the parties will engage in good faith efforts to reconcile competing interests and produce a satisfactory resolution that recognizes and respects both the accused's right to a fair trial and the witness's right to exercise her religious beliefs," Mr. Justice David Doherty, writing on behalf of Mr. Justice Michael Moldaver and Mr. Justice Robert Sharpe, said in Wednesday's decision.

"The Court of Appeal's decision is an important step forward toward a more inclusive justice system," the complainant's lawyer, David Butt, said in an interview.

"The Court has recognized that the religious freedoms of a niqab wearing complainant in a sexual assault case stand on an equal footing with the rights of accused persons. Every case of a niqab wearing witness must be examined on its own facts but those who sincerely adhere to this religious practice can be assured that they will be treated with equal respect to an accused person."

The Court said that trial judges must search for a sensitive compromise that will respect the complainant's religious needs while, at the same time, allowing the defence to assess her demeanor during testimony.

These may include having as few people in the courtroom as possible, and ensuring that most or all of them are female, it said.

"Attempts to reconcile competing interests using 'constructive compromises' might include the use of an all female court staff and a female judge," the judge said. "Those measures might also include, where constitutionally permissible, an order that a witness be cross-examined by female counsel...If necessary, the court could be closed to all male persons other than the accused and his counsel."

The appeal court emphasized the defence lawyers cannot simply assert the right to have a niqab removed without first making a strong case for why it is necessary.

"For example, if the defence contends that the identity of the witness is in issue and, therefore, her face must be exposed, the defence must demonstrate an air of reality to that claim before it will be taken into account in assessing the extent to which the wearing of the niqab may affect cross-examination," they said.

They said that very act of carefully probing the matter will go a long way to showing respect for Muslim witnesses.

"If a person has a full opportunity to present his or her position and is given a reasoned explanation for the ultimate course of conduct to be followed, the recognition afforded that person's rights by that process itself tends to validate that person's claim, even if the ultimate decision does not give that person everything he or she wanted," the court said.

The Court said that it is not possible to craft an absolute solution, since religious rights and the sanctity of a fair trial are extremely powerful rights that cannot eclipse one another.

They said that during any trial proceeding, it can be hazardous to base conclusions solely on the demeanor or facial expressions of a witness. However, these facial nuances play an important role in the overall truth-seeking process.

"It is undeniable that the criminal justice system as it presently operates, and as it has operated for centuries, places considerable value on the ability of lawyers and the trier of fact to see the full face of the witness as the witness testifies," the Court observed.

The judges went out of their way to express sympathy for the "difficult and intimidating" task that the complainant - known as N.S. - faces. They said that this difficulty is only compounded by her fear that the trial process will do damage to her personal convictions and her ability to take solace from her spirituality.

"She must describe intimate, humiliating and painful details of her childhood," the Court said. "She must do so, at least twice, in a public forum in which her credibility and reliability will be vigorously challenged and in which the person she says abused her is cloaked in the presumption of innocence.

"The pressures and pain that complainants in a sexual assault case must feel when testifying will no doubt be compounded in these circumstances where N.S. is testifying against family members," the court added. "It should not surprise anyone that N.S., when faced with this daunting task, seeks the strength and solace of her religious beliefs and practices."

At the same time, the judges said that the defendant who pursued the application to have N.S. remove her niqab is facing extremely serious charges that are likely to affect his life forever.

"If convicted, he may well go to jail for a considerable period of time," the Court said. "He will also wear the stigma of the child molester for the rest of his life. In all likelihood, the mere fact that charges have been laid has led many within his family and community who are aware of those charges to look at (him) in a very different way.

The defendant must retain the presumption of innocence throughout his trial, the judges said. "His fate will depend on whether N.S. is believed. In a very real sense, the rest of his life depends on whether his counsel can show that N.S. is not a credible or reliable witness. No one can begrudge (his) insistence that his lawyer have available all of the means that could reasonably assist in getting at the truth of the allegations made against him."