Thursday, December 20, 2012

Canada's Supreme Court, in Split Decision, Sets Out Balancing Test On Right of Witness To Wear Niqab

The Supreme Court of Canada today, in a widely watched case, handed down its decision on whether a Muslim woman who for religious reasons wears a niqab that covers her face can be required to remove it while testifying in court. The issue arose at a preliminary inquiry involving criminal charges against the woman's uncle and cousin who she accused of repeatedly sexually assaulting her when whe was a young girl.  (See prior posting.) In R. v. N.S., (Sup. Ct. Canada, Dec. 20, 2012), Chief Justice McLachlin, writing for 4 of the 7 Supreme Court justices set out a balancing test, and held that the case should be remitted to the judge conducting the preliminary inquiry to apply the test:
Two sets of Charter rights are potentially engaged — the witness’s freedom of religion and the accused’s fair trial rights, including the right to make full answer and defence.  An extreme approach that would always require the witness to remove her niqab while testifying, or one that would never do so, is untenable.  The answer lies in a just and proportionate balance between freedom of religion and trial fairness, based on the particular case before the court.  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.....
Justice LeBel joined by Justice Rothstein held that they would impose a "clear rule" that a niqab cannot be worn at any stage of the criminal trial:
The Charter protects freedom of religion ....  But fundamental too are the rights of the accused to a fair trial, to make full answer and defence to the charges brought against him, to benefit from the constitutional presumption of innocence and to avert wrongful convictions.  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.
Justice Abella, on the other hand, would allow the witness to wear her niqab while testifying:
Since not being able to see a witness’s whole face is only a partial interference with what is, in any event, only one part of an imprecise measuring tool of credibility, there is no reason to demand full “demeanour access” where religious belief prevents it..... Defence counsel still has the opportunity to rigorously cross-examine the witness.
A witness who is not permitted to wear her niqab while testifying is prevented from being able to act in accordance with her religious beliefs.  This has the effect of forcing her to choose between her religious beliefs and her ability to participate in the justice system.  As a result, complainants ... may choose not to bring charges for crimes they allege have been committed against them, or ... may resist being a witness in someone else’s trial.  Where the witness is the accused, she will be unable to give evidence in her own defence.... [S]exual 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.
 The Toronto Globe and Mail reports on the decision, as does Constitutional Law Prof Blog. CBC News reviews several other controversies in Canada in recent years involving the right to wear a niqab. [Thanks to Ruthann Robson for the lead.]

No comments: