R v NS, 2012 SCC 72 (20 December 2012) Summary
The Supreme Court of Canada dismissed an appeal from an alleged sexual assault victim who wished to testify whilst wearing the niqab (an Islamic face veil). By majority, the Court held that the matter be remitted to the preliminary inquiry judge who was to balance freedom of religion (for the victim) and trial fairness (for the accused). A witness testifying in niqab would be required to remove it only if this was necessary to prevent a serious risk to trial fairness and because the benefits of requiring her to do so would outweigh any harm befalling her by this practice.
NS, a Canadian Muslim, alleged that she had been sexually assaulted by her cousin and uncle. At the preliminary inquiry, the co-accused sought an order that NS remove her niqab while testifying. NS argued that her religious belief required her to wear a niqab in public. The preliminary inquiry judge held that NS’s removal of the niqab for her driver’s licence photograph and the fact that she would do so again for a security check meant that her beliefs were not sufficiently strong so as to require her to wear it. NS appealed.
The Canadian Court of Appeal held that, if the competing rights of witness and accused could not be reconciled, in the interests of a fair trial the witness may be ordered to remove her niqab. This would depend, however, on whether (or to what extent) her credibility was in issue, how much the niqab interfered with “demeanour assessment” and whether the evidence to be given was contested or central to the proceedings. NS appealed.
The reasoning of the Supreme Court of Canada split three ways.
Chief Justice McLaughlin (with whom Justices Deschamps, Fish and Cromwell agreed) held that the answer lay in a balance between competing rights of religion and trial fairness, each upheld as part of the Canadian Charter of Rights and Freedoms (sections 2(a), 7 and 11(d) respectively). Their Honours applied the approach taken to resolving “rights conflicts” in Dagenais v Canadian Broadcasting Corporation  3 SCR 835 and R v Mentuck 2001 SCC76.
Four questions were to be answered.
First, would requiring NS to remove her niqab interfere with her religious freedom? Chief Justice McLaughlin rejected the preliminary inquiry judge’s view that her religious beliefs were “not sufficiently strong”. The question was one of sincerity, rather than strength of belief.
Second, would permitting the witness to wear the niqab while testifying create a serious risk to trial fairness? The co-accused argued that to allow NS to cover her face prevented effective cross-examination and interfered with the ability of the judge or jury to assess her credibility. Chief Justice McLaughlin held that Canadian common law, as well as the Criminal Code, supported the view that the ability to see a witness’ face is an important aspect of a fair trial. Nonetheless, its importance was not absolute; it varied with the level to which the evidence was contested and/or central to the proceedings.
Third, was there any way to accommodate the rights of both NS and the co-accused, thus achieving the “just and proportionate balance” referred to in Dagenais v Canadian Broadcasting Corporation? Chief Justice McLaughlin doubted that such a balance was possible on the facts of the case.
Finally, given the unlikelihood of any compromise, the majority considered whether the “salutary effects of requiring [NS] to remove the niqab outweigh[ed] the deleterious effects of doing so”. The effect of limiting NS’s religious practice was to be balanced not only against the rights of the co-accused as individuals to a fair trial. The Court also considered “the broader societal harms” of niqab removal, noting that it could discourage niqab wearers from reporting offences and otherwise “participating in the justice system”.
Justices LeBel and Rothstein agreed that the matter should be remitted to the preliminary inquiry judge. Their Honours, however, rejected Chief Justice McLaughlin’s “proportionality inquiry” approach with assessment of competing considerations. Instead, they argued for a “clear rule”. The niqab’s impact on a fair trial, as well as its opposition to “the underlying values of the Canadian justice system” (that is, the openness of the trial process), meant that their Honours found no place for the niqab in court.
Justice Abella (dissenting) would have allowed the appeal. Her Honour argued that NS should not have to “choose between her religious rights and her ability to bear witness against an alleged aggressor”, noting that “trial fairness cannot reasonably expect ideal testimony from an ideal witness in every case”. In many cases, courts accepted the testimony of witnesses whose demeanour “can only be partially observed”, and Justice Abella found that niqab wearers were part of this category. Of course, where questions of witness identity arose, Justice Abella conceded that the niqab would need to be removed.
The Charter of Human Rights and Responsibilities 2006 (Vic), like its Canadian counterpart, contains both a right to freedom of religion (section 14) and to a fair trial (section 24). Although the wearing of the niqab is not widespread among Australian Muslims, the question as to its presence in courtrooms, as well as in other public places, has been considered previously.
In the unreported judgment of R v Anwar Sayed (August 2010), the District Court of Western Australia held that a witness in a fraud trial would be required to remove her niqab before giving evidence. Judge Deanne focussed not only on the rights of the witness and of the accused but also on “community expectations”. It should be noted that Western Australia does not have an equivalent to the Charter and that the nature of the trial in R v Anwar Sayed was different to the instant case.
Pursuant to section 7, the Charter requires a similar “proportionality inquiry” and balancing of various conflicting rights as that undertaken by Chief Justice McLaughlin in R v NS. The range of views observed in that case highlights the plurality of opinions when it comes to striking the appropriate balance between religious belief and the need for a fair trial.
This decision can be found online at: http://www.canlii.org/en/ca/scc/doc/2012/2012scc72/2012scc72.html.
Ingrid Weinberg is a solicitor at King & Wood Mallesons.