This is what the Supreme Court of Canada said.
R. v. N.S.N.S., Appellant;
Her Majesty The Queen, M---d S. and M---l S., Respondents, and
Ontario Human Rights Commission, Barbra Schlifer Commemorative
Clinic, Criminal Lawyers' Association (Ontario), Muslim
Canadian Congress, South Asian Legal Clinic of Ontario,
Barreau du Québec, Canadian Civil Liberties Association,
Women's Legal Education and Action Fund and Canadian Council
on American-Islamic Relations, Interveners. S.C.J. No. 72 A.C.S. no 722012 SCC 72File No.: 33989. Supreme Court of CanadaHeard: December 8, 2011;
Judgment: December 20, 2012.Present: McLachlin C.J. and LeBel, Deschamps, Fish, Abella,
Rothstein and Cromwell JJ.(110 paras.)Appeal From:
ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO
NOTE: This document is subject to editorial revision before its reproduction in final form in the Canada Supreme Court Reports.
Court Catchwords: Charter of Rights — Freedom of religion — Right to fair hearing — Right to make full answer and defence — Muslim witness at preliminary hearing in sexual assault trial wanting to testify with her face covered by niqab — Whether requiring witness to remove the niqab while testifying would interfere with her religious freedom — Whether permitting her to wear niqab while testifying would create a serious risk to trial fairness — Whether both rights could be accommodated to avoid conflict between them — If not, whether salutary effects of requiring the witness to remove niqab outweigh deleterious effects — Canadian Charter of Rights and Freedoms, ss. 2(a), 7 and 11(d). Criminal law — Evidence — Cross-examination — Muslim witness at preliminary hearing in sexual assault trial wanting to testify with her face covered by niqab — Whether permitting her to wear niqab while testifying would create a serious risk to trial fairness.Court Summary:The accused, M---d S. and M---l S., stand charged with sexually assaulting N.S. N.S. was called by the Crown as a witness at the preliminary inquiry. N.S., who is a Muslim, indicated that for religious reasons she wished to testify wearing her niqab. The preliminary inquiry judge held a voir dire, concluded that N.S's religious belief was "not that strong," and ordered her to remove her niqab. On appeal, the Court of Appeal held that if the witness's freedom of religion and the accused's fair trial interests were both engaged on the facts and could not be reconciled, the witness may be ordered to remove the niqab, depending on the context. The Court of Appeal returned the matter to the preliminary inquiry judge. N.S. appealed.
Held (Abella J. dissenting): The appeal should be dismissed, and the matter remitted to the preliminary inquiry judge.
Per McLachlin C.J. and Deschamps, Fish and Cromwell JJ.: The issue is when, if ever, a witness who wears a niqab for religious reasons can be required to remove it while testifying. 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.
Applying this framework involves answering four questions. First, would requiring the witness to remove the niqab while testifying interfere with her religious freedom? To rely on s. 2(a) of the Charter, N.S. must show that her wish to wear the niqab while testifying is based on a sincere religious belief. The preliminary inquiry judge concluded that N.S.'s beliefs were not sufficiently strong. However, at this stage the focus is on sincerity rather than strength of belief.
The second question is: would permitting the witness to wear the niqab while testifying create a serious risk to trial fairness? 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. The record before us has not shown this presumption to be unfounded or erroneous. However, 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. 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 both freedom of religion and trial fairness are engaged on the facts, a third question must be answered: is there a way to accommodate both rights and avoid the conflict between them? The judge must consider whether there are reasonably available alternative measures that would conform to the witness's religious convictions while still preventing a serious risk to trial fairness.
If no accommodation is possible, then a fourth question must be answered: do the salutary effects of requiring the witness to remove the niqab outweigh the deleterious effects of doing so? Deleterious effects include the harm done by limiting the witness's sincerely held religious practice. The judge should consider the importance of the religious practice to the witness, the degree of state interference with that practice, and the actual situation in the courtroom - such as the people present and any measures to limit facial exposure. The judge should also consider broader societal harms, such as discouraging niqab-wearing women from reporting offences and participating in the justice system. These deleterious effects must be weighed against the salutary effects of requiring the witness to remove the niqab. Salutary effects include preventing harm to the fair trial interest of the accused and safeguarding the repute of the administration of justice. When assessing potential harm to the accused's fair trial interest, the judge should consider whether the witness's evidence is peripheral or central to the case, the extent to which effective cross-examination and credibility assessment of the witness are central to the case, and the nature of the proceedings. 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. 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.
A clear rule that would always, or one that would never, permit a witness to wear the niqab while testifying cannot be sustained. Always permitting a witness to wear the niqab would offer no protection for the accused's fair trial interest and the state's interest in maintaining public confidence in the administration of justice. 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. The need to accommodate and balance sincerely held religious beliefs against other interests is deeply entrenched in Canadian law.
Competing rights claims should be reconciled through accommodation if possible, and if a conflict cannot be avoided, through case-by-case balancing. The Charter, which protects both freedom of religion and trial fairness, demands no less.
Per LeBel and Rothstein JJ.: This appeal illustrates the tension and changes caused by the rapid evolution of contemporary Canadian society and by the growing presence in Canada of new cultures, religions, traditions and social practices. This case is not purely one of conflict and reconciliation between a religious right and the protection of the right of the accused to make full answer and defence, but engages basic values of the Canadian criminal justice system. The Charter protects freedom of religion in express words at s. 2(a). 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. A defence that is unduly and improperly constrained might impact on the determination of the guilt or innocence of the accused.
The Constitution requires an openness to new differences that appear within Canada, but also an acceptance of the principle that it remains connected with the roots of our contemporary democratic society. A system of open and independent courts is a core component of a democratic state, ruled by law and a fundamental Canadian value. From this broader constitutional perspective, the trial becomes an act of communication with the public at large. The public must be able to see how the justice system works. Wearing a niqab in the courtroom does not facilitate acts of communication. 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. Nor should wearing a niqab be dependent on the nature or importance of the evidence, as this would only add a new layer of complexity to the trial process. A clear rule that niqabs may not be worn at any stage of the criminal trial would be consistent with the principle of public openness of the trial process and would safeguard the integrity of that process as one of communication.
Per Abella J. (dissenting): The harmful effects of requiring a witness to remove her niqab, with the result that she will likely not testify, bring charges in the first place, or, if she is the accused, be unable to testify in her own defence, is a significantly more harmful consequence than the accused not being able to see a witness's whole face. 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.
There is no doubt that the assessment of a witness's demeanour is easier if it is based on being able to scrutinize the whole demeanour package -- face, body language, or voice. That, however, is different from concluding that unless the entire package is available for scrutiny, a witness's credibility cannot adequately be weighed. Courts regularly accept the testimony of witnesses whose demeanour can only be partially observed and there are many examples of courts accepting evidence from witnesses who are unable to testify under ideal circumstances because of visual, oral, or aural impediments. The use of an interpreter, for example, may well have an impact on how the witness's demeanour is understood, but it is beyond dispute that interpreters render the assessment of demeanour neither impossible nor impracticable. A witness may also have physical or medical limitations that affect a judge's or lawyer's ability to assess demeanour. A stroke may interfere with facial expressions; an illness may affect body movements; and a speech impairment may affect the manner of speaking. 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. Witnesses who wear niqabs should not be treated any differently.
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. A witness wearing a niqab may still express herself through her eyes, body language, and gestures. Moreover, the niqab has no effect on the witness's verbal testimony, including the tone and inflection of her voice, the cadence of her speech, or, most significantly, the substance of the answers she gives. 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 who sincerely believe that their religion requires them to wear the niqab in public, may choose not to bring charges for crimes they allege have been committed against them, or, more generally, 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. 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.