UPDATED: Ontario appeal court to rule on witness’ right to wear a niqab during criminal trial

An Australian court recently denied a Muslim Australian woman’s request to wear a niqab “while testifying in court as it could prove difficult for jury members to assess her demeanor.”
For others, like the Wall Street Journal,  the issue of banning Islamic headdresses is about “security”.

France’s decision to ban the burqa and niqab in public has also stirred heated debate among religious and political groups, alike. According to a recent report in The National, “the Abu Dhabi Media company’s first English-language publication”:

“The burqa is not a religious symbol and can be used as cover to carry out terrorist acts, a high-ranking member of the Federal National Council said yesterday. 
He added that he did not blame France for banning the face covering, saying it was likely to bring unwanted attention to Muslims visiting the country. 
Rashid al Marar, a representative from Abu Dhabi and the second-highest-ranking member of the foreign relations committee, was speaking during and after talks with French diplomats.
The delegation included Philippe Marini, an influential senator and president of the French senate’s France-Gulf friendship committee, in addition to France’s ambassador to the UAE. 
“Wearing [the niqab] shocks the majority of citizens, and every time one comes across people wearing the niqab, it is additional votes for extremists,” said Mr Marini. 
Mr al Marar said wearing the burqa was not a religious practice, and said that extremists could use the burqa as a way to mask their identity by masquerading as women.”

On Wednesday, October 13, 2010, at 11:00 a.m, the Court of Appeal for Ontario will rule on whether a witness testifying in a criminal trial has a right to wear a niqab. According to the Court of Appeal for Ontario website, the decision in R. v. N.S. et al C50534 and C50892, involves an appeal from the order of Justice Frank N. Marrocco of the Superior Court of Justice at Toronto, dated April 30, 2009, which was heard by the Court of Appeal on June 8 and 9, 2010:

“The central issue on this appeal arises from an apparent conflict between the constitutional rights of a witness in a criminal proceeding and the constitutional rights of the accused in that same proceeding. The witness, N.S., an alleged victim of historical sexual assaults, contended that her religious beliefs dictated that she must wear a niqab when testifying. The accused, who is facing serious criminal charges, argued that his right to make full answer and defence requires that he, his counsel and the preliminary inquiry judge be able to see the accuser’s face when she testifies and, in particular, when she is cross-examined. The Superior Court justice, inter alia, set out a process for reconciling the conflict between the rights of the witness and the rights of the accused person. The witness appealed the decision to the Court of Appeal.

Is the R. v. N.S. case really about witness demeanour or security?

I don’t think so.

Then again, I live in a country where multiculturalism and religious tolerance, for the most part, are embedded into the national psyche. Yes, there is overt and covert racism and bigotry, but the Canadian Charter of Rights and Freedoms remains the touchstone for protecting against the excessive exercise of power of the state over an individual. I am more inclined to consider the issue of banning or restricting an individual’s freedom of expression and freedom of religion in the context of constitutional law principles.

As Joanna Birenbaum and Kerri A. Froc in “The Niqab in the Courtroom: A new guise for “whacking” sexual assault complainants” (CBA Touchstones May 2010) rightly emphasize:

“One question that arises is whether this argument that allowing complainants to continue wearing their niqab while testifying swings the pendulum too far and diminishes the accused’s right to a fair trial? In answering this question, it is important to consider whether the lack of demeanor evidence makes any significant intrusion on the right to full answer and defence. The Supreme Court of Canada has repeatedly confirmed that there is no absolute right to see the face of one’s accuser (R. v. Levogiannis, [1993] 4 S.C.R. 475). Moreover, the reliability and probative value of demeanor evidence is increasingly under question by the judiciary and social scientists. For example, renowned social scientist, Professor Paul Ekman of the University of California, conducted an empirical study of professionals, such as judges, FBI, CIA and police, who make judgments about whether people are lying or telling the truth.

His results revealed that these professionals do “no better than chance” in “spotting liars simply by their demeanor”. Discriminatory judgments based on demeanor have had devastating consequences for accused as well as victims – one need only look to the wrongful conviction of Guy Paul Morin and the wrongful charging of Susan Nelles. In the sexual assault context, rape mythologies about how a complainant ought to look or behave are steeped in racism and sexism, and further distort the truth seeking function of the criminal trial (for example, the history of Aboriginal and racialized sexual assault complainants being seen as less believable, innocent and worthy than white women). In the case of N.S., where the sexual complainant is a woman of colour from a stigmatized racial/religious minority, the risk of distortion of the trial process by reliance on demeanor evidence is significant.”

We cannot lose sight of the power of myth and symbolism that permeates this legal debate. After all, does not this classic legal symbol also have her face partially obscured?

 Stay tuned.

UPDATE:

The Court of Appeal for Ontario has released its decision today in R. v. N.S., 2010 ONCA 670. Writing for the Court, Doherty, J.A. (Moldaver and Sharpe JJ.A. concurring) has admirably set forth a contextual analysis that fairly balances the conflicting constitutional rights of a witness to freedom of religion in a criminal proceeding, on the one hand, and the constitutional rights of the accused to make full answer and defence in that same proceeding, on the other.

 The following is the analytical approach adopted by the Court of Appeal:

[70]          A court faced with a claim by a witness that her religious beliefs compel her to wear a niqab when testifying and with a claim by the accused that the wearing of the niqab interferes with his ability to cross-examine, should begin by determining whether the constitutional values underlying both claims are in fact engaged in the specific circumstances.   The court should first make the necessary inquiry to determine whether the course of action the witness seeks to follow is religiously motivated and that her belief is sincerely held.[8]  If the court concludes that the religious freedom claim is not made out under the criteria set out in the case law, that would the end the matter and the witness would be required to remove her niqab when testifying. [9]
[71]          If the judge is satisfied that the witness has advanced a valid religious right claim, the judge must next determine the extent, if at all, to which wearing the niqab would interfere with the accused’s ability to cross-examine the witness.  At this stage, the judge is not deciding whether wearing the niqab would result in a denial of the accused’s right to cross-examine and to a fair trial, but only whether the wearing of the niqab would impose an impediment on cross-examination that was more than minimal or insignificant.  This assessment must be fact-specific.  For example, if the witness’s credibility was not in issue and she was giving evidence on a peripheral non-contentious matter, I would think that the judge would determine that any limit the wearing of the niqab imposed on her cross-examination was so insignificant that it could be safely disregarded.   If the judge were to conclude, in the specific circumstances of a given case, that allowing the witness to wear her niqab did not interfere with cross-examination, or interfered only to a minimal extent, the accused’s right to make full answer and defence would not be engaged.  A minimal interference with cross-examination would not impair an accused’s right to a fair trial and would not justify any limitation on the witness’s exercise of her right to freedom of religion:  Amselem, at para. 84.
[72]          A judge can take judicial notice of the relevance of demeanour to the assessment of a witness’s credibility and reliability.  The judge could also take judicial notice of the potential assistance that demeanour could afford to the cross-examiner in the course of conducting that cross-examination.  If, however, the defence contention is that the wearing of the niqab impairs cross-examination beyond the ways described above, it is incumbent upon the defence to establish those claims.  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. 
[73]          If the judge is satisfied that both the witness’s religious freedom claim and the accused’s right to cross-examine claim are sufficiently engaged, the judge must then attempt to reconcile those two rights by giving effect to both.  It is at this stage that context becomes particularly important.  Context includes the somewhat limited manner in which the wearing of the niqab interferes with the trier of fact’s assessment based on demeanour.  The trier of fact still hears and sees the witness.  Tone of voice, eye movements, body language, and the manner in which the witness testifies, all important aspects of demeanour, are unaffected by the wearing of the niqab.  Nor does the wearing of the niqab prevent the witness from being subjected to a vigorous and thorough cross-examination. 
[74]          The contextual factors outlined above do not stand alone.  Other features of the trial process will also impact upon the effect the wearing of a niqab has on the ability to cross-examine the witness.  In jury cases, the judge’s instructions will play a significant role.  In determining whether to allow the witness to wear her niqab, a judge in a jury case will bear in mind that the jury will be instructed that the onus of proof is on the Crown and that any difficulties the jury may encounter in assessing the credibility of a Crown witness because that witness is wearing a niqab must redound against the Crown as the party bearing the onus of proof.  An instruction in these terms could well go a long way to negative any negative impact on the defence flowing from a limitation on the ability to cross-examine a witness who is wearing a niqab.
[75]          Context also includes the nature of the proceeding:  M. (A.) v. Ryan, [1997] 1 S.C.R. 157.  The reconciliation may be very different at a preliminary inquiry, where the witness’s credibility is essentially irrelevant, than at trial, where the outcome of the case and the accused’s liberty may turn entirely on the witness’s credibility.  A defence claim that it cannot cross-examine the witness if she is wearing a niqab based entirely on broad arguments about the impact of the loss of demeanour evidence may have little force when made at the preliminary inquiry stage.  The same arguments will carry more force at trial, especially if the witness’s credibility is central to the Crown’s case. 
[76]          The forum in which the trial will be conducted is also part of the context.  If the case is to be tried by a judge alone, that judge during the inquiry into the witness’s religious freedom claim may well develop a sense of the extent to which the wearing of the niqab will affect that judge’s ability to make a proper assessment of the witness.  The judge could properly take that impression into account in deciding how best to reconcile the witness’s right to freedom of religion with the accused’s right to full cross-examination.  Where, however, the case is tried by a jury, it will be for the jury to ultimately determine the effect of the niqab on its ability to accurately assess the credibility and reliability of the witness.  The potential significance of the jury in assessing whether the witness should be required to remove her niqab was alluded to in the recent decision of R. v. Anwar Sayed (19 August 2010), Perth 164/2010 (WADC), a decision of Her Honour Justice Deanne of the District Court of Western Australia:
Being in a position to view a witness’s face whilst that person is giving evidence may or may not in the end assist jury members to determine issues of credibility or reliability, but that is a matter entirely for them.  The jury are the only people who can answer that question at the relevant time.  It appears to me that the fundamental question is whether or not the court in the circumstances of this particular case, insofar as they are known, should deny the members of the jury that opportunity. [Emphasis added.]
[77]          Context also includes the nature of the evidence to be given by the witness who wants to wear her niqab.  If her evidence is relatively peripheral, or if it is clear that the witness’s credibility will not be an issue, arguments that the removal of the niqab is essential to permit cross-examination become weak.  However, where the witness who claims the right to wear a niqab is central to the prosecution case and her credibility is virtually determinative of the outcome, an argument that a full view of the witness’s face, at least at trial, is essential to cross-examination becomes a much stronger argument. 
[78]          The nature of the defence to be advanced and any specific grounds linking the ability to see the witness’s face to the defence’s ability to make full answer and defence, are also part of the context.  I have set out some examples earlier in these reasons where the position of the defence gives added significance to the opportunity to see the face of the witness when she testifies. 
[79]          Perhaps the most difficult aspect of the contextual analysis is that which requires the court to take into account other constitutional values and societal interests that may be affected by the judge’s decision whether a witness should be required to remove her niqab.  N.S. is a Muslim, a minority that many believe is unfairly maligned and stereotyped in contemporary Canada.  A failure to give adequate consideration to N.S.’s religious beliefs would reflect and, to some extent, legitimize that negative stereotyping.  Allowing her to wear a niqab could be seen as a recognition and acceptance of those minority beliefs and practices and, therefore, a reflection of the multi-cultural heritage of Canada recognized in s. 27 of the Charter.  Permitting N.S. to wear her niqab would also broaden access to the justice system for those in the position of N.S., by indicating that participation in the justice system would not come at the cost of compromising one’s religious beliefs. 
[80]          N.S. is also a woman testifying as an alleged victim in a sexual assault case.  Permitting her to wear her niqab while testifying would recognize her as an individual and acknowledge the particularly vulnerable position she is in when testifying as an alleged victim in a sexual assault prosecution.  Adjusting the process to ameliorate the hardships faced by a complainant like N.S. promotes gender equality.
[81]          There is also a significant public interest in getting at the truth in a criminal proceeding.  Arguably, permitting N.S. to testify while wearing her niqab would promote that interest.  Without the niqab, N.S. would be testifying in an environment that was strange and uncomfortable for her.  One could not expect her to be herself on the witness stand.  A trier of fact could be misled by her demeanour.  Her embarrassment and discomfort could be misinterpreted as uncertainty and unreliability.  Furthermore, there may be cases where the Crown determines that it cannot in good conscience call upon the witness to testify if she is forced to remove her niqab.  In those cases, the evidence will be lost and a trial on the merits may be impossible – hardly a result that serves the public interest in the due administration of justice. 
[82]          There is also a societal interest pointing against a witness wearing a niqab when testifying.  Society has a strong interest in the visible administration of criminal justice in open courts where witnesses, lawyers, judges and the accused can be seen and identified by the public.  A public accusation and a public response to that accusation, in a forum which tests the truth of the accusation through the adversarial process, enhances public confidence in the administration of criminal justice.  All engaged in the criminal process, including witnesses, judges and lawyers, are ultimately accountable to the public.  Allowing a witness to testify with her face partly covered affords the witness a degree of anonymity that undermines the transparency and individual accountability essential to the effective operation of the criminal justice system.  Viewed from this perspective, allowing N.S. to wear a niqab while she testifies could compromise public confidence both in the conduct of the criminal trial and in the eventual verdict: see Ian Dennis, “The Right to Confront Witnesses: Meanings, Myths and Human Rights” (2010) 4 Crim. L. R. 255, at pp. 260-62. 
[83]          Obviously, these diverse interests cannot all be given full voice.  The reconciliation process does, however, demand that each be acknowledged and considered in the course of arriving at the appropriate order.  The judge’s reasons for whatever decision he or she makes take on an important role.  If those reasons demonstrate a full and sensitive appreciation of the various interests at stake, the reasons themselves become part of the reconciliation of the apparently competing interests.  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.
[84]          Not only is context crucial in reconciling rights but, as Ms. Nakelsky, Crown counsel, submitted, possible “constructive compromises” must also be considered as part of the reconciliation process.  Measures may be available to mitigate any potential harm to both the witness’s right to exercise her religious beliefs and the accused’s right to fully defend himself.  These compromises may minimize apparent conflicts between those two rights and produce a process in which both values can be adequately protected and respected.
[85]          Attempts to reconcile competing interests using “constructive compromises” might include the use of an all female court staff and a female judge.  Those measures might also include, where constitutionally permissible, an order that a witness be cross-examined by female counsel.  Consideration might also be given to using the measures provided for in the Criminal Code to protect complainants testifying in sexual assault cases and child witnesses.  If necessary, the court could be closed to all male persons other than the accused and his counsel.  In this case, resort to the measures outlined above could result in N.S., if she was required to remove her niqab, revealing her face to only one male person, M—d.S., to whom her religious beliefs indicated she should not.[10]  Without diminishing the significance of even that intrusion, it certainly respects and protects her religious rights much more than would a simple order that she remove her niqab. 
[86]          Efforts to reconcile competing rights would also entitle the judge to explore with the witness the extent to which her religious beliefs might be fully respected while minimizing the impact on the accused’s fair trial rights.  For example, during the inquiry into the witness’s religious freedom claim, the witness may indicate that she wears different styles of niqabs and/or that different fabrics are used in the niqab.  If such evidence was before the judge, he or she could call upon the witness to wear a style of niqab made with a kind of fabric that least interferes with the trier of facts’ ability to assess her demeanour.[11]
[87]           It is also important in considering how to reconcile rights, to bear in mind that the trial judge may reassess his or her initial decision as the matter proceeds. A judge may, after seeing the witness testify wearing her niqab on the inquiry into her religious beliefs, decide that she should be permitted to wear the niqab as she begins her testimony concerning the allegations.  The judge could change that ruling as the testimony progressed if the judge decided that the actual effect on the cross-examination was more significant than he or she expected. As is evident from the trial judge’s observations in Razamjoo, at para. 69, the effect of wearing the niqab will vary from case to case and may well be different than the anticipated or assumed effect.
[88]          Efforts to reconcile the rights of the witness and the accused may ultimately fail.  A judge may conclude that in all of the circumstances, and despite resort to available modifications in the process, including, in jury cases, the appropriate instruction, the witness’s wearing of the niqab would significantly impair the accused’s ability to cross-examine that witness and result in a denial of the accused’s right to make full answer and defence and his right to a fair trial.  If the judge concludes that the wearing of the niqab in all of the circumstances would infringe the accused’s right to make full answer and defence, that right must prevail over the witness’s religious freedoms and the witness must be ordered to remove the niqab.[12] 
[89]          In holding that where the accused’s right to make full answer and defence would be infringed, the witness’s right must yield, I rely on Mills (1999), in which the accused’s right to make full answer and defence potentially clashed with a complainant’s privacy interest in her psychiatric records.  After a discussion of the reconciliation of these competing rights in the context of a criminal trial, the majority said, at para. 89:
From our preceding discussion of the right to make full answer and defence, it is clear that the accused will have no right to the records in question insofar as they contain information that is either irrelevant or would serve to distort the search for the truth, as access to such information is not included within the ambit of the accused’s right. … However, the accused’s right must prevail where the lack of disclosure on production of the record would render him unable to make full answer and defence.  This is because our justice system has always held that the threat of convicting an innocent individual strikes at the heart of the principles of fundamental justice.  [Emphasis added.]
Justice Doherty concludes,
“[96]          It follows from my reasons that I would affirm, albeit on different grounds, the order of the Superior Court justice quashing the order of the preliminary inquiry judge.  A determination of whether N.S. should be allowed to testify wearing her niqab, and/or what modifications should be made in the process, can only be made after the inquiry outlined in these reasons.  I would remit the matter to the preliminary inquiry judge for the completion of the preliminary inquiry.  If the judge is required to determine whether N.S. can wear her niqab while testifying, he will do so in accordance with these reasons. 
[97]          I have stressed the need for a case-by-case assessment of the kind of claim raised in this case.  Reconciling competing Charter values is necessarily fact-specific.  Context is vital and context is variable.  Bright line rules do not work.  However, hopefully for the assistance of those charged with the responsibility of making these decisions at first instance, I would offer these observations. 
[98]          If a witness establishes that wearing her niqab is a legitimate exercise of her religious freedoms, then the onus moves to the accused to show why the exercise of this constitutionally protected right would compromise his constitutionally protected right to make full answer and defence.  I would think that a defence objection to the wearing of the niqab at the preliminary inquiry, based exclusively on the argument that the witness’s facial demeanour was important in the assessment of credibility or to assist the cross-examination, would fail, at least to the extent that the judge would begin by permitting the witness to wear her niqab while giving her evidence.  As explained earlier in these reasons, the preliminary inquiry judge could revisit his or her initial decision in the unlikely event that as the cross-examination proceeded, it became apparent that the wearing of the niqab was effectively denying counsel the ability to cross-examine the witness. 
[99]          While a defence objection to a witness wearing her niqab at the preliminary inquiry, based exclusively on the asserted loss of demeanour evidence, would in all likelihood fail, the same objection made at trial in a case to be tried by a jury raises much more difficult problems.  Where the case turns on the witness’s credibility, it must be conceded that the jury will lose some information relevant to the witness’s credibility if the witness is allowed to wear her niqab.  The extent of that loss is open to debate.  However, in a jury case, it is the jury’s obligation and no one else’s to evaluate demeanour and determine the extent to which it impacts on the outcome.  Where the credibility of the witness is virtually determinative of the outcome, denying the jury full access to that witness’s demeanour could be seen as detracting from the accused’s right to trial by jury. 
[100]      Where the application to require the witness to remove her niqab is brought in a jury trial, the judge must have regard to the jury’s role as the ultimate trier of fact.  The jury must determine the significance of the witness’s demeanour.  The judge will also bear in mind, however, that the jury will have the benefit of his instructions with respect to the assessment of demeanour and the potential impact of the wearing of the niqab.  Those instructions will counter, to some degree, any prejudice to the defence ability to effectively cross-examine the witness.  Demeanour instructions would not, of course, make up any detriment to the cross-examination occasioned by the questioners’ inability to see the witness’s full face as she was being cross-examined.
[101]      There is no getting around the reality that in some cases, particularly those involving trial by jury, where a witness’s credibility is central to the outcome, a judge will have a difficult decision to make where the witness claims the constitutional right to wear her niqab while testifying.  There can be no doubt that judges who actually see the participants in the process are in a better position to make the sensitive determinations required than an appellate court.  Assuming the appropriate inquiry has been made, the proper constitutional principles applied, and the relevant factors properly considered, this court should show deference to the trial judge’s decision. 
[102]      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.  I would hope, however, 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.    

[103]      I repeat, each case must turn on its own facts.  The full facts of this case, as they relate to this issue, are not known.”    

One Response to “UPDATED: Ontario appeal court to rule on witness’ right to wear a niqab during criminal trial”

  1. SULAIMAN Says:

    ”much of it will be said or will done but the reality of it will only be see by some few blessed ones ,may ALLAH BLESS THOSE WHO PUT HIM FIRST,NOT LAST LIKE PRES, OF FRANCE.

    ISMAIL ,SULEIMAN, S

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