The Supreme Court of Canada ruled in December that niqabs — full-face veils — could sometimes be worn by witnesses in court depending on the context.
In a case involving a Toronto woman identified only as “N.S.,” the court was asked to balance a niqab-wearing witness’s freedom of religion versus a defendant’s right to a fair trial in a sexual assault case.
In weighing these rights against each other, the court ultimately adopted a balanced approach. However, it split in a 4-2-1 decision (with Chief Justice Beverley McLachlin writing for the majority), adopting a “just and proportionate balance between freedom of religion on the one hand, and trial fairness on the other, based on the particular case before the court.”
Justices Louis LeBel and Morris Fish, meanwhile, argued that niqabs must never be worn in the courtroom, while Justice Rosalie Abella, in a dissenting opinion, stated that a witness should only have to remove a niqab if her face is directly relevant to the case.
While it is admirable in theory to maximize the benefits for both the defendant and witness in a trial, the majority decision is vague and will lead to uncertainty. Political science professor Emmett Macfarlane, of the University of Waterloo, argues that the majority has given trial courts “a messy confluence of rules likely to do more harm than good.” The guidelines referred to are delineated in a four-part test to determine the admissibility of the niqab.
First, would requiring the niqab’s removal infringe on a witness’s freedom of religion? The witness must prove her wish to wear the niqab is based on a “sincere religious belief.”
Second, would permitting the niqab create a serious risk to trial fairness? Where evidence is uncontested, the decision states, credibility assessment is not an issue, and so the niqab should be allowed. Third, is there a way to accommodate both the witness’s freedom of religion and the accused’s right to a fair trial? If there is no way to reconcile these differences, then finally, in legal jargon, do the “salutary effects” outweigh the “deleterious effects” of requiring the witness to remove the niqab? Basically, do the pros outweigh the cons?
This four-part step creates confusion for both defendants and witnesses. The deleterious effects that McLachlin seeks to avoid may actually be exacerbated by this decision. The ability for both defendants and witnesses to adequately prepare a case may be impeded without knowing whether the niqab will be allowed or not. The test, as LeBel highlights, adds further complexity to a trial. This will create a legal headache for trial court judges: the test may yield different results at different stages of the trial.
Abella’s dissent stems from the assumption that a witness’s facial expression is not required to determine credibility. She highlights that witnesses may have physical or medical limitations that may interfere with facial expressions. These individuals are not barred from testifying, and judges and juries regularly accept this testimony. The same is true for those who speak using translators. Abella here equates niqab wearers (a personal decision) with the physically incapable (an unchangeable limitation).
LeBel rebuts this argument, noting that the blind, deaf, and the physically immobile may be more limited in communication, but trying to overcome these obstacles ultimately is done to improve the quality of the communication process.
Niqabs, however, would restrict acts of communication, rather than facilitate them, “shielding the witness from interacting fully with the parties.” LeBel further highlights that the judicial system is predicated on the notion of openness and communication: “a clear rule that niqabs may not be worn would be consistent with the principle of openness of the trial process.”
LeBel’s decision is the most compelling of the three. McLachlin’s test is extremely subjective. For instance, how can a judge measure the potential benefits to a defendant’s cross-examination if a witness’s face is available? How is this affected if the face is blocked? Further, how can a witness prove a “sincere religious belief?”
This decision leaves very murky guidelines for trial court judges.
Abella, meanwhile, states that a witness’s face is only a partial and imprecise measuring tool of credibility, and for this reason would allow niqabs in the courtroom. She states that a “witness wearing a niqab may still express herself through her eyes, body language, and gestures.”
For individuals facing criminal charges, it is absolutely crucial that they be able to respond to charges laid against them. The defendant must have a right to full answer and defence, and the adjudicative nature of the court system, including the cross-examination of witnesses, contributes to this purpose.
Abella recognizes that a person’s facial gestures are only one measure of credibility. Yet blocking access to this imprecise measure leaves the accused’s lawyer with even less to rely on, and this reduces the accused’s due process rights. In such an important, potentially life-altering decision, an accused’s due process rights must trump a witness’s freedom of religion.
However, there is a danger in applying a strict rule to all circumstances. The majority in this court ruling argue niqab-wearing women may be discouraged from reporting offences and participating in the justice system. “The wrongs done to them will remain unredressed. They will effectively be denied justice. The perpetrators of crimes against them will go unpunished, immune from legal consequences.”
This case clearly poses very difficult questions for society, and it would not be unwise for Parliament to respond to this ruling.