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Ontario High Court Says Allowing Witness To Wear Niqab Requires Contextual Analysis

By Howard M. Friedman

In Canada yesterday, Ontario's highest appellate court held that a judge conducting a preliminary inquiry in a criminal case has discretion whether or not to permit Muslim women to testify with her face covered.  In The Queen v. N.S., (Ont. Ct. App., Oct. 13, 2010), defendants were charged with criminal sexual assault. The victim, niece and cousin of defendants, asserted the right to continue to wear her niqab, with her face covered, when testifying at the preliminary inquiry. The court said in part:

just as the preliminary inquiry judge has the power to regulate how and when a witness will testify, he or she has the power to determine whether a witness should be required to change his or her attire before testifying.... While it is clear that face to face confrontation between the accused and prosecution witnesses is the accepted norm in Canadian criminal courts, there is no independent constitutional right to a face to face confrontation....  Departures from the traditional face to face public confrontation between accused and witness will run afoul of the Charter only if they result in a denial of a fair trial to the accused...... 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....

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....

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.... 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....

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.... 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....  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....

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.

The Toronto Sun reported on the Court of Appeal for Ontario's decision.

Full post as published by Religion Clause on October 14, 2010 (boomark / email).