![](/scc-csc/scc-csc/en/12779/279928/res.do)
SUPREME
COURT OF CANADA
Citation: R. v. N.S., 2012 SCC 72, [2012] 3
S.C.R. 726
|
Date: 20121220
Docket: 33989
|
Between:
N.S.
Appellant
and
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
Coram: McLachlin C.J. and LeBel, Deschamps, Fish, Abella, Rothstein
and Cromwell JJ.
Reasons
for Judgment:
(paras. 1 to 57)
Concurring
Reasons:
(paras. 58 to 79)
Dissenting
Reasons:
(paras. 80 to 110)
|
McLachlin C.J. (Deschamps, Fish and
Cromwell JJ. concurring)
LeBel J. (Rothstein J. concurring)
Abella J.
|
R. v. N.S., 2012 SCC 72, [2012] 3 S.C.R. 726
N.S. Appellant
v.
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
Indexed as: R. v. N.S.
2012 SCC 72
File No.: 33989.
2011: December 8; 2012: December 20.
Present: McLachlin C.J. and LeBel, Deschamps, Fish, Abella,
Rothstein and Cromwell JJ.
on appeal from the court of appeal for ontario
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 ,
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.
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.
Cases Cited
By McLachlin C.J.
Applied: Dagenais v.
Canadian Broadcasting Corp., [1994] 3 S.C.R. 835; R. v. Mentuck,
2001 SCC 76, [2001] 3 S.C.R. 442; R. v. Mills, [1999] 3 S.C.R. 668; R.
v. Rose, [1998] 3 S.C.R. 262; R. v. Seaboyer, [1991] 2 S.C.R. 577; R.
v. Osolin, [1993] 4 S.C.R. 595; R. v. Lyttle, 2004 SCC 5, [2004] 1
S.C.R. 193; referred to: Syndicat Northcrest v. Amselem, 2004
SCC 47, [2004] 2 S.C.R. 551; R. v. Levogiannis (1990), 1 O.R. (3d) 351,
aff’d [1993] 4 S.C.R. 475; R. v. J.Z.S., 2010 SCC 1, [2010] 1 S.C.R. 3,
aff’g 2008 BCCA 401, 261 B.C.A.C. 52; Housen v. Nikolaisen, 2002 SCC 33,
[2002] 2 S.C.R. 235; White v. The King, [1947] S.C.R. 268; R. v. W.
(R.), [1992] 2 S.C.R. 122; Police v. Razamjoo, [2005] D.C.R. 408; R.
v. Oakes, [1986] 1 S.C.R. 103; Alberta v. Hutterian Brethren of Wilson
Colony, 2009 SCC 37, [2009] 2 S.C.R. 567; M. (A.) v. Ryan, [1997] 1
S.C.R. 157; R. v. Arcuri, 2001 SCC 54, [2001] 2 S.C.R. 828; R. v.
Hart (1999), 174 N.S.R. (2d) 165; R. v. Swain, [1991] 1 S.C.R. 933; Multani
v. Commission scolaire Marguerite‑Bourgeoys, 2006 SCC 6, [2006] 1
S.C.R. 256; Ontario Human Rights Commission v. Simpson‑Sears Ltd.,
[1985] 2 S.C.R. 536; Commission scolaire régionale de Chambly v. Bergevin,
[1994] 2 S.C.R. 525; Central Okanagan School District No. 23 v. Renaud,
[1992] 2 S.C.R. 970; Saumur v. City of Quebec, [1953] 2 S.C.R. 299; R.
v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295; R. v. Edwards Books and
Art Ltd., [1986] 2 S.C.R. 713; S.L. v. Commission scolaire des Chênes,
2012 SCC 7, [2012] 1 S.C.R. 235.
By LeBel J.
Referred to: R. v.
Crawford, [1995] 1 S.C.R. 858; R. v. Levogiannis, [1993] 4 S.C.R.
475; Alberta v. Hutterian Brethren of Wilson Colony, 2009 SCC 37, [2009]
2 S.C.R. 567; Bruker v. Marcovitz, 2007 SCC 54, [2007] 3 S.C.R. 607; R.
v. Oakes, [1986] 1 S.C.R. 103; Reference re Secession of Quebec, [1998]
2 S.C.R. 217; Reference re Remuneration of Judges of the Provincial Court of
Prince Edward Island, [1997] 3 S.C.R. 3; Canadian Broadcasting Corp. v.
New Brunswick (Attorney General), [1996] 3 S.C.R. 480.
By Abella J. (dissenting)
Alberta v. Hutterian Brethren
of Wilson Colony, 2009 SCC
37, [2009] 2 S.C.R. 567; Reference re Same‑Sex Marriage, 2004 SCC
79, [2004] 3 S.C.R. 698; Syndicat Northcrest v. Amselem, 2004 SCC 47,
[2004] 2 S.C.R. 551; S.L. v. Commission scolaire des Chênes, 2012 SCC 7,
[2012] 1 S.C.R. 235; R. v. Mills, [1999] 3 S.C.R. 668; R. v. O’Connor,
[1995] 4 S.C.R. 411; Faryna v. Chorny, [1952] 2 D.L.R. 354; R. v.
Pelletier (1995), 165 A.R. 138; R. v. Levert (2001), 159 C.C.C. (3d)
71; R. v. A.F., 2005 ABCA 447, 376 A.R. 124; R. v. R.S.M., 1999
BCCA 218 (CanLII); R. v. Davis (1995), 165 A.R. 243; R. v.
Chapdelaine, 2004 ABQB 39 (CanLII); R. v. Butt (2008), 280 Nfld.
& P.E.I.R. 129; R. v. Khan, [1990] 2 S.C.R. 531; R. v.
Levogiannis (1990), 1 O.R. (3d) 351.
Statutes and Regulations Cited
Canada Evidence Act, R.S.C. 1985,
c. C‑5 .
Canadian Charter of Rights and Freedoms,
ss. 1 , 2 (a), 7 , 11 (d), 14 , 27 .
Criminal Code, R.S.C. 1985, c. C‑46,
ss. 486.2(1) , 709 , 713 , 714.3 , 714.4 (b), 715 .
Authors Cited
Bakht, Natasha. “Objection, Your Honour! Accommodating Niqab‑Wearing
Women in Courtrooms”, in Ralph Grillo, et al., eds., Legal Practice and Cultural
Diversity. Farnham, Surrey: Ashgate, 2009, 115.
Bingham, Tom. The Rule of Law. London: Allen Lane, 2010.
Canadian Judicial Council. Model Jury Instructions, Part I, Preliminary
Instructions, 4.11 Assessing Testimony, updated March 2011 (online: http://www.cjc-ccm.gc.ca/english/lawyers_en.asp?selMenu=lawyers_NCJI-Jury-Instruction-Preliminary-2011-03_en.asp#_Toc287950397).
Morrison, Barry R., Laura L. Porter and Ian H. Fraser.
“The Role of Demeanour in Assessing the Credibility of Witnesses” (2007), 33 Advocates’
Q. 170.
Nussbaum, Martha C. Liberty of Conscience: In Defense of
America’s Tradition of Religious Equality. New York: Basic Books, 2008.
Weinrib, Sara. “An Exemption for Sincere Believers: The Challenge
of Alberta v. Hutterian Brethren of Wilson Colony” (2011), 56 McGill
L.J. 719.
APPEAL from a judgment of the Ontario
Court of Appeal (Doherty, Moldaver and Sharpe JJ.A.), 2010 ONCA 670, 102
O.R. (3d) 161, 326 D.L.R. (4th) 523, 269 O.A.C. 306, 262 C.C.C. (3d) 4, 80 C.R.
(6th) 84, 220 C.R.R. (2d) 146, [2010] O.J. No. 4306 (QL), 2010 CarswellOnt
7640, setting aside in part a decision of Marrocco J. (2009), 95 O.R. (3d)
735, 191 C.R.R. (2d) 228, 2009 CanLII 21203, [2009] O.J. No. 1766 (QL),
2009 CarswellOnt 2268, quashing the order of Weisman J. of the Ontario Court
of Justice, dated October 16, 2008. Appeal dismissed, Abella J.
dissenting.
David B. Butt, for the appellant.
Elise Nakelsky and Benita Wassenaar, for the
respondent Her Majesty The Queen.
Douglas Usher and Michael Dineen, for the
respondent M‑‑‑d S.
No one appeared for the respondent
M‑‑‑l S.
Written submissions only by
Anthony D. Griffin and Reema Khawja, for the intervener the
Ontario Human Rights Commission.
Rahool P. Agarwal, Michael Kotrly, Vasuda Sinha
and Brydie Bethell, for the intervener the Barbra Schlifer Commemorative
Clinic.
Frank Addario and Emma Phillips, for the
intervener the Criminal Lawyers’ Association (Ontario).
Tyler Hodgson, Heather Pessione and Ewa
Krajewska, for the intervener the Muslim Canadian Congress.
Written submissions only by
Ranjan K. Agarwal and Daniel T. Holden, for the intervener
the South Asian Legal Clinic of Ontario.
Written submissions only by
Babak Barin and Sylvie Champagne, for the intervener Barreau du
Québec.
Written submissions only by
Bradley E. Berg and Rahat Godil, for the intervener the
Canadian Civil Liberties Association.
Written submissions only by
Susan M. Chapman and Joanna Birenbaum, for the intervener the
Women’s Legal Education and Action Fund.
Faisal Bhabha, for the intervener the Canadian Council
on American‑Islamic Relations.
The judgment of McLachlin C.J. and
Deschamps, Fish and Cromwell JJ. was delivered by
The Chief Justice —
I. Introduction
[1]
How should the state respond to a witness whose
sincerely held religious belief requires her to wear a niqab that covers her
face, except for her eyes, while testifying in a criminal proceeding? One
response is to say she must always remove her niqab on the ground that the
courtroom is a neutral space where religion has no place. Another response is
to say the justice system should respect the witness’s freedom of religion and
always permit her to testify with the niqab on. In my view, both of these
extremes must be rejected in favour of a third option: allowing the witness to
testify with her face covered unless this unjustifiably impinges on the accused’s
fair trial rights.
[2]
A secular response that requires witnesses to
park their religion at the courtroom door is inconsistent with the
jurisprudence and Canadian tradition, and limits freedom of religion where no
limit can be justified. On the other hand, a response that says a witness can
always testify with her face covered may render a trial unfair and lead to
wrongful conviction. What is required is an approach that balances the vital
rights protecting freedom of religion and trial fairness when they conflict.
The long-standing practice in Canadian courts is to respect and accommodate the
religious convictions of witnesses, unless they pose a significant or serious
risk to a fair trial. The Canadian Charter of Rights and Freedoms ,
which protects both freedom of religion and trial fairness, demands no less.
[3]
For the reasons that follow, I conclude that 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) requiring the witness to remove the niqab 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, including the effects on trial fairness, outweigh the deleterious
effects of doing so, including the effects on freedom of religion.
II. The Background
[4]
The facts may be briefly stated. M---d S. and
M---l S. stand charged with having sexually assaulted N.S. The accused are
N.S.’s cousin and uncle, respectively. The prosecution called N.S. as a
witness at the preliminary inquiry. N.S., who is a Muslim, wished to testify
wearing her niqab. M---d S. and his co-accused, M---l S., sought an order
requiring N.S. to remove her niqab when testifying. The preliminary inquiry
judge held a voir dire, during which N.S. wore her niqab. N.S.
testified that her religious belief required her to wear a niqab in public
where men (other than certain close family members) might see her. She
admitted that she had removed her niqab for the photo on her driver’s licence,
which was taken by a female photographer, and that, if required, she would
remove it for a security check at a border crossing. The judge concluded that
N.S.’s religious belief was “not that strong” and ordered her to remove her
niqab. N.S. objected. The preliminary inquiry was adjourned. N.S. applied to
the Superior Court of Justice to quash the order of the preliminary inquiry
judge and to permit her to testify wearing the niqab.
[5]
At the Superior Court of Justice, Marrocco J.
quashed the order that N.S. testify without her niqab ((2009), 95 O.R. (3d)
735). He held that N.S. should be allowed to testify wearing a niqab if she
asserted a sincere religious reason for doing so, but that the preliminary
inquiry judge would have the option to exclude her evidence if the niqab were
found to have prevented true cross-examination. N.S. appealed, and M---d S.
cross-appealed.
[6]
The Court of Appeal, per Doherty J.A., held
that a judge faced with a request to testify wearing a niqab should determine
whether the request was the result of a sincere religious belief, and if so,
whether it impinged on the accused’s fair trial rights (2010 ONCA 670, 102 O.R.
(3d) 161). If the rights of the witness and accused could not be reconciled by
adapting court procedures to accommodate the religious practice, the accused’s
fair trial interest may require that the witness be ordered to remove her
niqab. This would depend on whether the credibility of the witness was in
issue, how much the niqab interfered with demeanour assessment, whether the
trial was a jury trial or a judge-alone trial, the stage of the proceedings,
the nature of the evidence to be given (i.e. is it central or peripheral,
controversial or uncontested), the nature of the defence to be advanced, and
other constitutional values and societal interests. The Court of Appeal
returned the matter to the preliminary inquiry judge, to be dealt with in
accordance with its directives. N.S. appealed.
III. The Issues
[7]
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 (protected under s. 2 (a)) and the accused’s fair
trial rights, including the right to make full answer and defence (protected
under ss. 7 and 11 (d)). This Court set out the framework for
identifying and resolving rights conflicts that arise at common law in Dagenais
v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835. This approach
was further refined in R. v. Mentuck, 2001 SCC 76, [2001] 3 S.C.R. 442.
The framework was developed in the context of publication bans, but its
principles have broader application.
[8]
The first task under a Dagenais/Mentuck-type
inquiry is to determine whether, in the case at hand, allowing the witness to
testify in a niqab is necessary to protect her freedom of religion. The second
task is to determine whether requiring the witness to testify without the niqab
is necessary in order to protect the fairness of the trial. This involves
considering whether there are alternative measures for protecting trial
fairness that would also allow the witness to exercise her religious practice.
Finally, if there is a true conflict that cannot be avoided, it is necessary to
assess the competing harms and determine whether the salutary effects of
requiring the witness to remove the niqab (for example, reducing the risk of a
wrongful conviction) outweigh the deleterious effects of doing so (for example,
the harm from interfering with the witness’s sincerely held religious belief):
see Dagenais, at p. 878; Mentuck, at para. 32.
[9]
Applying this framework involves answering four
questions:
1. Would requiring the witness to remove the niqab
while testifying interfere with her religious freedom?
2. Would permitting the witness to wear the niqab
while testifying create a serious risk to trial fairness?
3. Is there a way to accommodate both rights and
avoid the conflict between them?
4. If no accommodation is possible, do the salutary
effects of requiring the witness to remove the niqab outweigh the deleterious
effects of doing so?
IV. Would Requiring the Witness to Remove the Niqab While
Testifying Interfere With Her Religious Freedom?
[10]
N.S. bases her claim to wear a niqab while
testifying on the guarantee of freedom of religion in s. 2 (a) of the Charter :
2. Everyone has the following fundamental freedoms:
(a) freedom of
conscience and religion;
[11]
In order to rely on s. 2 (a), she must
show that her wish to wear the niqab in court is based on a sincere religious
belief: Syndicat Northcrest v. Amselem, 2004 SCC 47, [2004] 2
S.C.R. 551. The issue at this stage is whether N.S. sincerely believes
that her religion requires her to wear a niqab in the presence of men who are
not her relatives, including while testifying in court.
[12]
The preliminary inquiry judge failed to conduct
an adequate inquiry into whether N.S.’s refusal to remove her niqab was based on
a sincere religious belief. Based on the fact that N.S. removed the niqab for
her driver’s licence photo and said she would do so for a security check, the
preliminary inquiry judge seems to have concluded that her beliefs were not
sufficiently “strong”.
[13]
This was not an appropriate determination of
whether N.S. has a prima facie religious claim. First, the question of
whether she has a claim focuses on sincerity of belief rather than its
strength. While, as I will discuss, the strength of a claimant’s religious
belief may be relevant in balancing it against the accused’s fair trial rights,
the belief need only be sincere in order for it to receive protection. Second,
inconsistent adherence to a religious practice may suggest lack of sincere belief,
but it does not necessarily do so. A sincere believer may occasionally lapse,
her beliefs may change over time or her belief may permit exceptions to the
practice in particular situations. Departures from the practice in the past
should also be viewed in context; a witness should not be denied the right to
raise s. 2 (a) merely because she has made what seemed to be a compromise
in the past in order to participate in some facet of society. The preliminary
inquiry judge did not explore these possibilities. I therefore agree with the
Court of Appeal that the matter must be returned to the preliminary inquiry
judge for full consideration of whether N.S.’s desire to wear a niqab is based
on sincere religious belief.
[14]
The balance of my reasons proceeds on the
assumption that N.S. has established a sincere religious belief that she must
wear a niqab while testifying in a public criminal proceeding. In such
circumstances, can the judge order that the niqab be removed on the basis that
it will adversely affect the accused’s fair trial interests?
V. Would Permitting the Witness to Wear the Niqab While
Testifying Create a Serious Risk to Trial Fairness?
[15]
M---d S. submits that permitting N.S. to wear
the niqab while testifying would infringe his fair trial rights. Both ss. 7
and 11(d) of the Charter protect an accused’s right to a fair
trial and to make full answer and defence. Section 11 (d) of the Charter
states:
11. Any person charged with an offence has the right
. .
.
(d) to be presumed
innocent until proven guilty according to law in a fair and public hearing by
an independent and impartial tribunal;
The right to a fair trial in s. 11 (d) encompasses a
right to make full answer and defence: R. v. Mills, [1999] 3 S.C.R. 668,
at para. 69. More broadly, s. 7 of the Charter provides that a person
cannot be deprived of his liberty except “in accordance with the principles of
fundamental justice”. Those principles include the right to a fair trial and
to make full answer and defence. The principles of fundamental justice in s. 7
and the requirements of s. 11 (d) are “inextricably intertwined”: R.
v. Rose, [1998] 3 S.C.R. 262, at para. 95, citing R. v. Seaboyer,
[1991] 2 S.C.R. 577, at p. 603.
[16]
M---d S. argues that allowing N.S. to testify
with her face covered by a niqab denies his fair trial rights in two ways:
first, by preventing effective cross-examination; and second, by interfering
with the ability of the trier of fact (judge or jury) to assess N.S.’s
credibility.
[17]
We have no expert evidence in this case on the
importance of seeing a witness’s face to effective cross-examination and
accurate assessment of a witness’s credibility. All we have are arguments and
several legal and social science articles submitted by the parties as
authorities.
[18]
M---d S. and the Crown argue that the link is
clear. Communication involves not only words, but facial cues. A facial
gesture may reveal uncertainty or deception. The cross-examiner may pick up on
non-verbal cues and use them to uncover the truth. Credibility assessment is
equally dependent not only on what a witness says, but on how she says it.
Effective cross-examination and accurate credibility assessment are central to
a fair trial. It follows, they argue, that permitting a witness to wear a
niqab while testifying may deny an accused’s fair trial rights.
[19]
N.S. and supporting interveners, on the other
hand, argue that the importance of seeing a witness’s face has been greatly
exaggerated. They submit that untrained individuals cannot use facial
expressions to detect deception. Moreover, to the extent that non-verbal cues
are useful at all, a niqab-wearing witness’s eyes, tone of voice and cadence of
speech remain available to the cross-examiner and trier of fact.
[20]
The record sheds little light on the question of
whether seeing a witness’s face is important to effective cross-examination and
credibility assessment and hence to trial fairness. The only evidence in the
record is a four-page unpublished review article suggesting that untrained
individuals cannot accurately detect lies based on the speaker’s facial cues.
This material was not tendered through an expert available for
cross-examination. Interveners have submitted articles arguing for and against
a connection, but they are not part of the record and not supported by expert
witnesses, and so are more rhetorical than factual.
[21]
This much, however, can be said. The common
law, supported by provisions of the Criminal Code, R.S.C. 1985, c. C-46 ,
and judicial pronouncements, proceeds on the basis that the ability to see a
witness’s face is an important feature of a fair trial. While not conclusive,
in the absence of negating evidence this common law assumption cannot be
disregarded lightly.
[22]
As a general rule, witnesses in common law criminal
courts are required to testify in open court, with their faces visible to
counsel, the judge and the jury. Face-to-face confrontation is the norm,
although not an independent constitutional right: R. v. Levogiannis
(1990), 1 O.R. (3d) 351 (C.A.), at pp. 366-67, aff’d [1993] 4 S.C.R. 475. To
be sure, long-standing assumptions of the common law can be displaced, if shown
to be erroneous or based on groundless prejudice — thus the reforms to
eliminate the many myths that once skewed the law of sexual assault. But the
record before us has not shown the long-standing assumptions of the common law
regarding the importance of a witness’s facial expressions to cross-examination
and credibility assessment to be unfounded or erroneous.
[23]
In recent years, Parliament and this Court have confirmed the common law
assumption that the accused, the judge and the jury should be able to see the
witness as she testifies. To protect child witnesses from trauma, Parliament
has passed legislation permitting children to testify via closed-circuit television
or from behind a screen so that they cannot see the accused: Criminal Code,
s. 486.2(1) . This Court has upheld these testimonial aids, relying on the fact
that they do not prevent the accused from seeing the witness: R. v. J.Z.S.,
2010 SCC 1, [2010] 1 S.C.R. 3, aff’g 2008 BCCA 401, 261 B.C.A.C. 52.
Before a witness is permitted to testify by audio link, the Criminal Code expressly
requires that the judge consider “any potential prejudice to either of the
parties caused by the fact that the witness would not be seen by them”: ss.
714.3 (d) and 714.4 (b). This, too, suggests that not seeing a
witness’s face during testimony may limit the fairness of a trial.
[24]
Covering the face of a witness may impede cross-examination: see C.A.
reasons, at para. 54. Effective cross-examination is integral to the conduct
of a fair trial and a meaningful application of the presumption of innocence:
see R. v. Osolin, [1993] 4 S.C.R. 595, at pp. 663-65; Mills,
at para. 69. Unwarranted constraints may undermine the fairness of the
trial:
. . .
the right of an accused to cross-examine witnesses for the prosecution — without
significant and unwarranted constraint — is an essential component of the right
to make full answer and defence. [Emphasis added.]
(R. v. Lyttle,
2004 SCC 5, [2004] 1 S.C.R. 193, at para. 2)
Non-verbal communication can provide the
cross-examiner with valuable insights that may uncover uncertainty or
deception, and assist in getting at the truth.
[25]
Covering a witness’s face may also impede
credibility assessment by the trier of fact, be it judge or jury. It is a
settled axiom of appellate review that deference should be shown to the trier
of fact on issues of credibility because trial judges (and juries) have the
“overwhelming advantage” of seeing and hearing the witness — an advantage that
a written transcript cannot replicate: Housen v. Nikolaisen, 2002
SCC 33, [2002] 2 S.C.R. 235, at para. 24; see also White v. The King,
[1947] S.C.R. 268, at p. 272; R. v. W. (R.), [1992] 2 S.C.R.
122, at p. 131. This advantage is described as stemming from the ability to
assess the demeanour of the witness, that is, to see how the witness
gives her evidence and responds to cross-examination.
[26]
Changes in a witness’s demeanour can be highly
instructive; in Police v. Razamjoo, [2005] D.C.R. 408, a New Zealand
judge asked to decide whether witnesses could testify wearing burkas commented:
.
. . there are types of situations . . . in which the demeanour of a witness
undergoes a quite dramatic change in the course of his evidence. The look which
says “I hoped not to be asked that question”, sometimes even a look of
downright hatred at counsel by a witness who obviously senses he is getting
trapped, can be expressive. So too can abrupt changes in mode of speaking, facial
expression or body language. The witness who moves from expressing himself
calmly to an excited gabble; the witness who from speaking clearly with good
eye contact becomes hesitant and starts looking at his feet; the witness who at
a particular point becomes flustered and sweaty, all provide examples of
circumstances which, despite cultural and language barriers, convey, at least
in part by his facial expression, a message touching credibility. [para. 78]
[27]
On the record before us, I conclude that there is
a strong connection between the ability to see the face of a witness and a fair
trial. Being able to see the face of a witness is not the only — or indeed
perhaps the most important — factor in cross-examination or accurate
credibility assessment. But its importance is too deeply rooted in our
criminal justice system to be set aside absent compelling evidence.
[28]
However, whether the ability to observe a
witness’s face impacts 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 the accused’s fair trial
rights; as Dagenais notes, the risk to trial fairness must be “real and
substantial” (p. 878), or in other words, the risk must be a serious one (Mentuck,
at para. 34).
[29]
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.
VI. Is There a Way to Accommodate Both Rights and Avoid the
Conflict Between Them?
[30]
If both freedom of religion and trial fairness
are engaged on the facts, the question is how a judge should reconcile these
rights.
[31]
The answer to this question lies in the Dagenais/Mentuck
approach and the jurisprudence of this Court. The answer is not to
ban religion from the courtroom, transforming the courtroom into a “neutral”
space where witnesses must park their religious convictions at the door. Nor
does it lie in ignoring the ancient and persistent connection the law has
postulated between seeing a witness’s face and trial fairness, and holding that
a witness may always wear her niqab while testifying. Rather, the answer lies
in 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.
[32]
Under the Dagenais/Mentuck framework,
once a judge is satisfied that both sets of competing interests are actually
engaged on the facts, he or she must try to resolve the claims in a way that
will preserve both rights. Dagenais refers to this as the requirement
to consider whether “reasonably available alternative measures” would avoid the
conflict altogether (p. 878). We also call this “accommodation”. We find a
way to go forward that satisfies each right and each party. Both rights are
respected, and the conflict is averted.
[33]
When the matter returns to the preliminary
inquiry judge, the parties should be able to place before the court evidence
relating to possible options for accommodation of the potentially conflicting
claims. This is the first step in the reconciliation process. The
question is whether there is a reasonably available alternative that would
conform to the witness’s religious convictions while still preventing a serious
risk to trial fairness. On the facts of this case, it may be that no
accommodation is possible; excluding men from the courtroom would have
implications for the open court principle, the right of the accused to be
present at his trial, and potentially his right to counsel of his choice.
Testifying without the niqab via closed-circuit television or behind a one-way
screen may not satisfy N.S.’s religious obligations. However, when this
case is reheard, the preliminary inquiry judge must consider the possibility of
accommodation based on the evidence presented by the parties.
VII. Do the Salutary Effects of Requiring the Witness to
Remove the Niqab Outweigh the Deleterious Effects of Doing So?
[34]
If there is no reasonably available alternative
that would avoid a serious risk to trial fairness while conforming to the
witness’s religious belief, the analysis moves to the next step in the Dagenais/Mentuck
framework. The question is whether the salutary effects of requiring the
witness to remove the niqab, including the effects on trial fairness, outweigh
the deleterious effects of doing so, including the effects on freedom of
religion (Dagenais, at p. 878; Mentuck, at para.
32).
[35]
As Dagenais makes clear, this is a
proportionality inquiry, akin to the final part of the test in R. v. Oakes,
[1986] 1 S.C.R. 103. The effect of insisting that the witness remove the niqab
if she is to testify must be weighed against the effect of permitting her to
wear the niqab on the stand.
[36]
In terms of the deleterious effects of requiring
the witness to remove her niqab while testifying, the judge must look at the
harm that would be done by limiting the sincerely held religious practice.
Sincerity of belief is already established at the first step of determining
whether the s. 2 (a) right is engaged; at this stage the task is to
evaluate the impact of failing to protect that sincere belief in the particular
context. It is difficult to measure the value of adherence to religious conviction,
or the injury caused by being required to depart from it. The value of
adherence does not depend on whether a religious practice is a voluntary
expression of faith or a mandatory obligation under religious doctrine: Amselem,
at para. 47. However, certain considerations may be helpful. How important is
the practice to the claimant? What is the degree of state interference with
the religious practice? (See Alberta v. Hutterian Brethren of Wilson Colony,
2009 SCC 37, [2009] 2 S.C.R. 567, at paras. 89-95.) How does the actual
situation in the courtroom — the people present and any measures that can be
put in place to limit facial exposure — affect the harm to the claimant of
limiting her religious practice? These are but some considerations that may be
relevant to determining the impact of an order to remove the niqab on the
witness’s right to freedom of religion.
[37]
The judge should also consider the broader
societal harms of requiring a witness to remove the niqab in order to testify.
N.S. and supporting interveners argue that if niqab-wearing women are required
to remove the niqab while testifying against their sincere religious belief
they will be reluctant to report offences and pursue their prosecution, or to
otherwise participate 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.
These considerations may be especially weighty in a sexual assault case such as
this one. In recent decades the justice system, recognizing the seriousness of
sexual assault and the extent to which it is under-reported, has vigorously
pursued those who commit this crime. Laws have been changed to encourage women
and children to come forward to testify. Myths that once stood in the way of
conviction have been set aside.
[38]
Having considered the deleterious effects of
requiring the witness to remove the niqab, the judge must also consider the
salutary effects of doing so. These include preventing harm to the fair trial
interest of the accused and safeguarding the repute of the administration of
justice. An important consideration will be the extent to which effective
cross-examination and credibility assessment on this witness’s testimony is
central to the case. On an individual level, the cost of an unfair trial is
severe. The right to a fair trial is a fundamental pillar without which the
edifice of the rule of law would crumble. No less is at stake than an individual’s
liberty — his right to live in freedom unless the state proves beyond a
reasonable doubt that he committed a crime meriting imprisonment. This is of
critical importance not only to the individual on trial, but to public
confidence in the justice system.
[39]
The nature of the proceeding may also be a
relevant factor in assessing the harm to the fair trial interest of the accused
if the witness is permitted to testify wearing the niqab: see M. (A.) v.
Ryan, [1997] 1 S.C.R. 157, at para. 36. For example, determining whether
evidence is admissible on a voir dire might not raise the same concerns
for getting at the truth through cross-examination and credibility assessment
as would determining a central factual element of the Crown’s case.
[40]
The Court of Appeal suggested that the fair
trial interest might be attenuated at the preliminary inquiry stage, where the
judge is not tasked with making credibility findings: R. v. Arcuri, 2001
SCC 54, [2001] 2 S.C.R. 828, at para. 32. This may be questioned, however,
given that evidence taken on a preliminary inquiry is subject to
cross-examination and can be read in as part of the record at trial: s. 715 , Criminal
Code . Moreover, one of the purposes of a preliminary inquiry is to permit
defence counsel to probe the strength of the Crown’s case by cross-examining
its witnesses. Permitting the witness to wear a niqab at the preliminary
inquiry might hamper fulfillment of that purpose.
[41]
The Court of Appeal suggested that harm to the
fair trial interest might be less significant in a trial before a judge alone
than before a judge and jury. Where a judge is the trier of fact, she would
have the benefit of observing the witness at two points: first during the voir
dire on the witness’s religious freedom claim, and second when the witness
gives testimony and is cross-examined. As the Court of Appeal stated:
[The]
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. [para. 76]
This said, judges must
guard against over-confident predictions that they will be able to make sound
credibility assessments, or that the inability to see the witness’s face will
not affect cross-examination, on the basis of a preliminary impression of a person
whose face they cannot see.
[42]
The Court of Appeal also suggested that, in a
trial by jury, the harm of being unable to see the witness’s face might be
offset by a curative instruction to the jury. However, a note of caution is in
order. A curative instruction is hardly a remedy for deficient
cross-examination or impaired credibility assessment resulting from an
inability to see the witness’s face.
[43]
Another factor to consider is the nature of the
evidence to be given by the witness. The Court of Appeal observed that if the
witness’s “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” (para. 77). As
already discussed above, if the witness’s evidence is uncontested, the
accused’s trial fairness interests are not put at risk by the witness wearing a
niqab. However, even when trial fairness is engaged, the importance of the
evidence may bear on the judge’s assessment of the risk posed by the witness’s
face being concealed. As Cromwell J.A. (as he then was) commented in R. v.
Hart (1999), 174 N.S.R. (2d) 165 (C.A.):
The trial
judge should consider the importance of the evidence to the case. The more
important the evidence to the prosecution’s case, the more reluctant the trial
judge should be to allow it to be given without full cross-examination. [para.
104]
[44]
These are but some of the factors that may be
relevant to determining whether the party seeking removal of the niqab has
established that the salutary effects of doing so outweigh the deleterious
effects. Future cases will doubtless raise other factors, and scientific
exploration of the importance of seeing a witness’s face to cross-examination
and credibility assessment may enhance or diminish the force of the arguments
made in this case. At this point, however, it may be ventured that where the
liberty of the accused is at stake, the witness’s evidence is central to the
case and her credibility vital, the possibility of a wrongful conviction must
weigh heavily in the balance, favouring removal of the niqab.
[45]
The judge must assess all these factors and determine
whether, in the case at hand, the salutary effects of requiring the witness to
remove the niqab outweigh the deleterious effects of doing so.
VIII. The Alternatives
[46]
I have proposed that courts should deal with the
conflict between rights in cases such as this by finding a just and appropriate
balance between freedom of religion on the one hand and fair trial rights on
the other. The result is that where a niqab is worn because of a sincerely held
religious belief, a judge should order it removed if the witness wearing the
niqab poses a serious risk to trial fairness, there is no way to accommodate
both rights, and the salutary effects of requiring the witness to remove the
niqab outweigh the deleterious effects of doing so. This approach
follows the path this Court has taken in cases where rights conflict: R. v.
Swain, [1991] 1 S.C.R. 933, at pp. 978-79 and 986-87; Dagenais,
at p. 878; Multani v. Commission scolaire Marguerite-Bourgeoys, 2006 SCC
6, [2006] 1 S.C.R. 256, at para. 2.
[47]
Some of the submissions before us, however,
argue against a contextual balancing and in favour of a clear rule. Some argue
that a witness should always be permitted to wear a niqab in court, while
others argue that she should never be permitted to cover her face in court. In
my respectful view, while both positions offer the advantage of a clear rule,
neither can be sustained.
[48]
I turn first to the position that a witness
should always be permitted to wear a niqab in court. The basic problem with
this solution is that it offers no protection for the accused’s fair trial
interest and the state’s correlative interest in avoiding wrongful convictions
and maintaining public confidence in the administration of justice. Proponents
of this position, including a number of interveners, responded by saying the
niqab has little or no impact on cross-examination and credibility assessment,
and hence does not impinge on the accused’s right to, and the state’s interest
in, a fundamentally fair trial. This response, as discussed, flies in the face
of assumptions deeply embedded in common law criminal practice and the Criminal
Code , as well as the accepted judicial view that seeing the face of a
witness assists in credibility assessment and is important to a fair trial.
[49]
In the absence of evidence showing that these
beliefs, backed by centuries of practice, are unsubstantiated “myths” that
should be excised from the law, we should not take such a radical step. It
follows that the view that witnesses can never be ordered to remove the niqab
cannot be accepted. The Dagenais/Mentuck approach of finding a
just balance between the conflicting rights is not displaced.
[50]
At the other end of the spectrum lies the
approach that says the courtroom must be a space in which individuals’
particular religious convictions have no place. On this view, if the niqab is
an expression of the wearer’s religious views, it has no place in the
courtroom. Courtrooms should be “neutral” spaces, operating on “neutral”
principles. Changes of procedure on religious grounds should therefore not be
allowed, it is argued.
[51]
In my view, this option must also be rejected.
It is inconsistent with Canadian jurisprudence, courtroom practice, and our
tradition of requiring state institutions and actors to accommodate sincerely
held religious beliefs insofar as possible. Importantly, it limits religious
rights where there is no countervailing right and hence no reason to limit
them. As such, it fails the proportionality test which has guided Charter
jurisprudence since Oakes in 1986.
[52]
First, as already discussed, our jurisprudence
teaches that clashes between rights should be approached by reconciling the
rights through accommodation if possible, and in the end, if a conflict cannot
be avoided, by case-by-case balancing: Dagenais. An absolute rule that
courtrooms are secular spaces where religious belief plays no role would stand
as a unique exception to this approach. No attempt to accommodate the
witness’s sincere religious belief would need to be made. No effort to
minimize the intrusion on the right would need to be considered. The
reconciliation between competing rights that we have advocated case after case
would not be attempted. Why? Simply because the venue where the rights clash
is a courtroom.
[53]
Second, to remove religion from the courtroom is
not in the Canadian tradition. Canadians have since the country’s inception
taken oaths based on holy books — be they the Bible, the Koran or some other
sacred text. The practice has been to respect religious traditions insofar as
this is possible without risking trial fairness or causing undue disruption in
the proceedings. The Canada Evidence Act, R.S.C. 1985, c. C-5 , now
permits a witness to affirm instead of taking a religious oath, but it does not
remove the option of the oath from the courtroom.
[54]
Third, the Canadian approach in the last 60
years to potential conflicts between freedom of religion and other values has
been to respect the individual’s religious belief and accommodate it if at all
possible. Employers have been required to adapt workplace practices to
accommodate employees’ religious beliefs: Ontario Human Rights Commission
v. Simpson-Sears Ltd., [1985] 2 S.C.R. 536, at p. 555; Commission
scolaire régionale de Chambly v. Bergevin, [1994] 2 S.C.R. 525, at
pp. 551-52; Central Okanagan School District No. 23 v. Renaud, [1992] 2
S.C.R. 970, at p. 982. Schools, cities, legislatures and other
institutions have followed the same path: Saumur v. City of Quebec, [1953]
2 S.C.R. 299, at pp. 327-29; R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R.
295, at pp. 336-37; R. v. Edwards Books and Art Ltd., [1986] 2
S.C.R. 713, at p. 782; Amselem, at para. 103; Multani, at para. 2.
The need to accommodate and balance sincerely held religious beliefs
against other interests is deeply entrenched in Canadian law. For over half a
century this tradition has served us well. To depart from it would set the law
down a new road, with unknown twists and turns.
[55]
Most recently, in S.L. v. Commission scolaire
des Chênes, 2012 SCC 7, [2012] 1 S.C.R. 235, Justice Deschamps wrote
of the ideal of “neutrality” in the law:
.
. . following a realistic and non-absolutist approach, state neutrality is
assured when the state neither favours nor hinders any particular religious
belief, that is, when it shows respect for all postures towards religion,
including that of having no religious beliefs whatsoever, while taking into
account the competing constitutional rights of the individuals affected. [para.
32]
[56]
This brings me to the final reason for rejecting
an approach that would never allow a witness to testify while wearing a
religious facial covering. It does 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. This principle is set out in
s. 1 of the Charter , in relation to laws — laws that limit
the rights guaranteed by the Charter are invalid to the extent that the
limit is not reasonably justified in a free and democratic society. A total
ban on religious face coverings for all evidence given by all witnesses in the
courtroom would mean that freedom of religion is being limited in situations
where there is no good reason for the limit. As discussed above, uncontested
and uncontroversial evidence does not engage the fair trial interest. A total
ban that would permit the state to intrude on freedom of religion where it
cannot be justified is not consistent with the premise on which the Charter is
based — a generous approach to defining the scope of the rights it confers,
coupled with the need to justify intrusions on those rights because of
conflicting interests or the public good.
IX. Conclusion
[57]
I would dismiss the appeal. The matter should
be remitted to the preliminary inquiry judge to be decided in accordance with
these reasons.
The reasons of
LeBel and Rothstein JJ. were delivered by
LeBel J. —
I.
Introduction
[58]
The Chief Justice proposes to dismiss the appeal
of N.S. I agree with her conclusion. However, she crafts a rule that would
allow witnesses to wear niqabs in certain circumstances. I have
reservations about her approach and will propose a different rule. I will add
some observations about the important issues raised by this appeal in respect
of some of the principles informing and governing the Constitution of Canada
and the application of its criminal law. But I will not restate the facts of
the appeal. I will be content to rely on their exposition in the Chief
Justice’s reasons, except where I find it necessary to add a few details to
their presentation.
[59]
Once again, this appeal signals the difficulties
attendant on the trial of charges of sexual assault and related offences,
particularly in the context of the life of a family. As we will see, however,
there is more to this case. This appeal also 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. Now, this Court must decide how to frame the relationship —
or clash — between the affirmation of a religious right by a victim of sexual
assault and the right of the accused to conduct his defence or, rather, to make
full answer and defence to the charges against him. The complainant says that
her Islamic faith requires her to wear a full-face veil, the niqab, in public,
in court. The accused responds that the complainant must remove her veil,
particularly when she gives evidence or is cross-examined, in order to protect
his right to a fair trial and to make full answer and defence. The Court of
Appeal tried to reconcile the conflicting claims. At the end of a long and carefully
crafted judgment, it found that N.S. would have to remove her veil, if that
became necessary, in order to allow the defence to conduct an effective
cross-examination (2010 ONCA 670, 102 O.R. (3d) 161). It did not clearly decide
whether wearing a niqab is compatible with the nature of a public adversarial
trial in the courts of Canada and with the principles that govern such a trial
under the Canadian Charter of Rights and Freedoms , the criminal law and
the common law.
[60]
The Court of Appeal and the complainant treated
the issue in this case as 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. This clash arises, but the equation involves other factors.
The case engages basic values of the Canadian criminal justice system. Is the
wearing of the niqab compatible not only with the rights of the accused, but
also with the constitutional values of openness and religious neutrality in
contemporary democratic, but diverse, Canada?
[61]
Exploring this aspect of the case may lead to
further questions about the meaning of multiculturalism in our democratic
environment. I will first consider the conflict between the religious rights
claimed by the appellant and the rights of an accused facing criminal charges.
I will then briefly reflect on the values of the Canadian justice system and on
their relevance to the resolution of the issues before this Court.
II.
Conflict Between Religious Rights and the
Criminal Justice Process
[62]
Freedom of religion is a fundamental right. It
often goes to the core identity of human beings. The Charter protects it
in express words in s. 2 (a). But fundamental too are the rights of
the accused to make full answer and defence to the charges brought against him
and to benefit from the presumption of innocence. The right to cross-examine is
considered to be part of the constitutional right to make full answer and
defence. But it is not unlimited (R. v. Crawford, [1995] 1 S.C.R. 858,
at paras. 27-28; R. v. Levogiannis, [1993] 4 S.C.R. 475).
Religious rights are not unlimited either (Alberta v. Hutterian Brethren of
Wilson Colony, 2009 SCC 37, [2009] 2 S.C.R. 567).
[63]
In the instant case, this Court must resolve a
conflict between two protected constitutional rights within the framework
established by the constitutional system. It is not a question of reconciling
a constitutional right, the guarantee of freedom of religion, with a mere
common law right, the right to cross-examine a witness, the complainant. As
found in the jurisprudence, the right to cross-examine is a component of the
constitutional right of the accused to make full answer and defence to the
charges against him or her.
[64]
Indeed, the reasons of the Chief Justice
recognize the importance of the right of cross-examination as a tool to ensure
the effectiveness of the right of the accused to make full answer and defence.
It tests the witness. Many cross-examinations fail or, in the end, actually
assist the prosecution. Some succeed, on occasion brilliantly. Like the Chief
Justice, I think that allowing participants to observe the face of a witness
during cross-examination is an important part in the exercise of the right of
the accused to defend himself against criminal charges, and that the appellant
has failed to show that this view is wrong.
[65]
I do not cast doubt on the sincerity of the
appellant’s religious beliefs. I do not doubt that the environment of a
criminal trial is hardly congenial or comfortable for the witnesses or the
parties, particularly in cases involving matters such as sexual assaults, even
sexual assaults within the family circle, as in this case. Lawyers and judges
get used in their lives to the courtroom environment. As judges, we may forget
how new, strange or intimidating it may prove to be for those who do not live
their lives in the law.
[66]
Parliament and courts have put processes in
place designed to protect young persons and victims of crimes like sexual
assault during a criminal trial. They are available to all those who belong to
the classes of persons that are deemed to be in need of protection in the
course of a trial. Nevertheless, despite these safeguards, the courtroom
environment can be traumatic for many litigants and witnesses.
[67]
But the Canadian criminal trial process remains
faithful in its core aspects to an adversarial model. This process developed in
the common law. Some of its features are now part of the constitutional order.
The accused, who is the target of the process, may himself be going through a
painful and traumatic experience from the time of the criminal investigation to
the arrest, the laying of charges and the wait for a trial date in open court.
Indeed, he is the target of a process established to satisfy the public
interest in the pursuit and punishment of crime. Nevertheless the criminal
process itself is also designed to ensure that the accused is given a fair
trial, to safeguard the constitutional presumption of innocence and, hopefully,
to avert wrongful convictions. The adversarial model is based on interaction
between the prosecution, the plaintiff, counsel for the parties, witnesses and,
finally, the judge and, where applicable, the jurors. This model of justice
imposes a significant personal burden on witnesses and parties. This burden
cannot be lifted entirely. The price might very well be reading the most basic
rights of the accused out of the criminal law and of the Charter .
[68]
In this context, it would be possible to expound
at length on the theme of the reconciliation of rights. But the Court is, first
of all, tasked with resolving a problem of balancing of rights, which both
enjoy constitutional protection. I agree, in this respect, with the reasons of
the Chief Justice that, when the issue involves the credibility of a key
witness in respect of the core questions raised by a charge, the rights of the
accused must be protected. Since cross-examination is a necessary tool for the
exercise of the right to make full answer and defence, the consequences of
restrictions on the rights in question weigh more heavily on the accused, and
the balancing process works in his favour. A defence that is unduly and
improperly constrained might impact on the determination of his guilt or
innocence. As a result, the witness, the complainant in this case, must be
asked to remove her veil while giving evidence at the preliminary inquiry and
at trial.
III.
The Niqab — Some Practical Aspects of
the Conduct of the Trial
[69]
But this does not mean that I agree with the
solution the Chief Justice proposes to the problem of a witness wearing a niqab
while testifying. In her view, whether a witness will be allowed to wear a niqab
would depend on the nature or the importance of the evidence. The
application of these criteria looks highly problematic. First, their
application could trigger new motions, and possibly another type of “voir
dire” that would add a new layer of complexity to a trial process that is
not always a model of simplicity. We should not forget that a trial is itself a
dynamic chain of events. It can often be difficult to foresee which evidence
might be considered non-contentious or important at a specific point in a
trial. The solution may vary at different stages of a trial, and also with what
is known about the evidence. What looked unchallengeable one day might appear
slightly dicey a week later. Given the nature of the trial process itself, the niqab
should be allowed either in all cases or not at all when a witness testifies.
In my opinion, a clear rule should be chosen. Because of its impact on the
rights of the defence, in the context of the underlying values of the Canadian
justice system, the wearing of a niqab should not be allowed.
IV.
Values of the Canadian Criminal Justice
System
[70]
A few years ago, Abella J. wrote some words of
caution about the need to respect differences, but at the same time to preserve
common values of Canadian society:
Endorsed in legal instruments ranging from
the statutory protections found in human rights codes to their constitutional
enshrinement in the Canadian Charter of Rights and Freedoms , the right
to integrate into Canada’s mainstream based on and notwithstanding these
differences has become a defining part of our national character.
The right to have differences protected,
however, does not mean that those differences are always hegemonic. Not all
differences are compatible with Canada’s fundamental values and, accordingly,
not all barriers to their expression are arbitrary.
(Bruker v. Marcovitz, 2007
SCC 54, [2007] 3 S.C.R. 607, at paras. 1-2)
[71]
Those common values are the ones that allowed
Canada to develop and live as a diverse society. They preserve a public space
where all will be welcome as they are, but where some core common values will
facilitate the interaction between all members of society. In his seminal
opinion on the interpretation and application of s. 1 of the Charter in Oakes,
Dickson C.J. adverted to the presence and importance of these common
values (R. v. Oakes, [1986] 1 S.C.R. 103). In his comment on the
meaning of the words “free and democratic society” in s. 1 of the Charter ,
he emphasized that these values were the source of the constitutional
rights guaranteed by the Charter :
The
underlying values and principles of a free and democratic society are the
genesis of the rights and freedoms guaranteed by the Charter and the
ultimate standard against which a limit on a right or freedom must be shown,
despite its effect, to be reasonable and demonstrably justified. [p. 136]
[72]
Dickson C.J. recognized in Oakes that the
Charter is grounded in a long history and tradition. The “living tree”
keeps growing, but always from its roots. Today, we may rightly say that, in s.
27 of the Charter , Canada accepts the importance of multiculturalism in
its social life. In s. 27, Canada signals its acceptance that it’s changing
through every day of its history. At the same time, however, the recognition of
multiculturalism takes place in the environment of the Constitution itself, and
is rooted in its political and legal traditions. 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.
[73]
The will to maintain an independent and open
justice system in which the interests and the dignity of all are taken into
consideration remains a key aspect of the traditions grounding this democratic
society. The religious neutrality of the state and of its institutions,
including the courts and the justice system, protects the life and the growth
of a public space open to all regardless of their beliefs, disbeliefs and
unbeliefs. Religions are voices among others in the public space, which
includes the courts.
[74]
A system of open and independent courts has
become a core component of a democratic state, ruled by law (T. Bingham, The
Rule of Law (2010), at p. 8). This system is part of the complex web of
institutions, rules and values embraced by the notion of the rule of law, of a
state and a society living under and within the law. Such a system is critical
to the maintenance of the rule of law, a fundamental Canadian value, as this
Court held, for example, in the Quebec Secession Reference (Reference
re Secession of Quebec, [1998] 2 S.C.R. 217) and in Reference re
Remuneration of Judges of the Provincial Court of Prince Edward Island, [1997]
3 S.C.R. 3.
[75]
There are all sorts of exceptions to the
openness of the courts and to the publicity of trials. But they remain
exceptions. Courts work under a general principle that they are open to the
public and that the public is entitled to know or learn about what goes on
before them. As La Forest J. wrote:
The importance of ensuring that justice be
done openly has not only survived: it has now become “one of the hallmarks of a
democratic society” . . . . The open court principle, seen as “the very soul
of justice” and the “security of securities”, acts as a guarantee that justice
is administered in a non-arbitrary manner, according to the rule of law. In Attorney
General of Nova Scotia v. MacIntyre, [1982] 1 S.C.R. 175, openness
was held to be the rule, covertness the exception, thereby fostering public
confidence in the integrity of the court system and understanding of the
administration of justice.
(Canadian Broadcasting Corp. v. New Brunswick (Attorney General),
[1996] 3 S.C.R. 480, at para. 22)
[76]
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. The principle of openness
ensures that the courts and the trial process belong to all regardless of
religion, gender or origin.
[77]
In the courts themselves, as I mentioned above,
the trial is a process of communication. To facilitate this process, the
justice system uses rules and methods that try to assist parties that struggle
with handicaps to overcome them in order to gain access to justice and take
part effectively in a trial. Blind or deaf litigants, and parties with limited
mobility, take part in judicial proceedings. Communication may sometimes be
more difficult. But the efforts to overcome these obstacles and the rules
crafted to address them tend to improve the quality of the communication
process. Wearing a niqab, on the other hand, does not facilitate acts of
communication. Rather, it restricts them. It removes the witness from the scope
of certain elements of those acts on the basis of the assertion of a religious
belief in circumstances in which the sincerity and strength of the belief are
difficult to assess or even to question. The niqab shields the witness from
interacting fully with the parties, their counsel, the judge and, where
applicable, the jurors.
[78]
A clear rule that niqabs may not be worn would
be consistent with the principle of openness of the trial process and would
safeguard the integrity of that process as one of communication. It would also
be consistent with the tradition that justice is public and open to all in our
democratic society. This rule should apply at all stages of the criminal trial,
at the preliminary inquiry as well as at the trial itself. Indeed, evidentiary
issues arise and evolve at the different stages of the criminal process, and
they affect the conduct of the communication process taking place during the
trial.
[79]
Because of the way the litigation and the
appeals were conducted, I agree with the disposition proposed by the Chief
Justice. I would remit the matter to the judge presiding at the preliminary
inquiry, the stage at which this case has remained bogged down for years as a
result of the incidents that this Court is now trying to resolve.
The following
are the reasons delivered by
Abella J. (dissenting) —
Introduction
[80]
Controversy hovers over the context of this
case: whether the niqab is mandatory for Muslim women or whether it
marginalizes the women who wear it; whether it enhances multiculturalism or whether
it demeans it. These are complex issues about which reasonable people can and
do strenuously disagree. But we are not required to try to resolve any of
these or related conceptual issues in this case, we are required to try to
transcend them in order to answer only one question: Where identity is not an
issue, should a witness’ sincerely held religious belief that a niqab must be
worn in a courtroom, yield to an accused’s ability to see her face. In other
words, is the harm to the accused’s fair trial rights in not being able to see
a witness’ entire face, greater than the harm to that witness’ religious
rights.
[81]
N.S., the complainant, is alleging that she was
repeatedly sexually assaulted by the accused while she was a child. She
asserts that her religious beliefs require her to wear a niqab — a veil which
covers her face but not her eyes — while testifying in front of any man who is
not a direct family member. The accused argues that his right to a fair trial
requires that he, his counsel, and the judge be able to see N.S.’s face during
her testimony and cross-examination. The issue, therefore, is weighing the
competing harms.
[82]
I concede without reservation that seeing more
of a witness’ facial expressions is better than seeing less. What I am not
willing to concede, however, is that seeing less is so impairing of a judge’s
or an accused’s ability to assess the credibility of a witness, that the
complainant will have to choose between her religious rights and her ability to
bear witness against an alleged aggressor. This also has the potential to
impair the rights of an accused, who may find herself having to choose between
her religious rights and giving evidence in her own defence. The court system
has many examples of accepting evidence from witnesses who are unable to
testify under ideal circumstances because of visual, oral, or aural
impediments. I am unable to see why witnesses who wear niqabs should be
treated any differently.
[83]
I would, however, make an exception in cases
where the accused can demonstrate that the witness’ face is directly relevant
to the case, such as where the witness’ identity is in issue. In such cases,
seeing the witness’ face is central to the issues at trial, rather than merely
being a part of the assessment of demeanour.
Analysis
[84]
I agree with the majority that the issue at the
first stage of the analysis is whether N.S.’s claim to wear a niqab while
testifying is grounded in the guarantee of freedom of religion in s. 2 (a)
of the Canadian Charter of Rights and Freedoms . There is no
question that an order requiring N.S. to remove her niqab in the courtroom
would interfere with her freedom of religion in a substantial manner: Alberta
v. Hutterian Brethren of Wilson Colony, [2009] 2 S.C.R. 567, at para. 32.
[85]
Where both sets of competing Charter interests
are shown to be engaged, the next step is to attempt to reconcile them though
reasonably available alternative measures, or accommodation. But where the
rights cannot be reconciled, a “true conflict” is made out, and the court will
be required to balance the interests at stake: Reference re Same-Sex
Marriage, [2004] 3 S.C.R. 698, at para. 50. In the context of a witness
wearing the niqab, I see very little realistic possibility for accommodation.
[86]
The crux of this case, therefore, is whether the
impact of not having full access to the usual “demeanour assessment package”
can be said to so materially harm trial fairness that the religious right must
yield. In my view, with very limited exceptions, the harm to a complainant of
requiring her to remove her niqab while testifying will generally outweigh any
harm to trial fairness.
[87]
This Court has adopted a low threshold when it
comes to establishing sincerity of belief. Inquiries into sincerity are to be
“as limited as possible”, intended “only to ensure that a presently asserted
religious belief is in good faith, neither fictitious nor capricious, and that
it is not an artifice”: Syndicat Northcrest v. Amselem, [2004] 2 S.C.R.
551, at para. 52. As a result, sincerity of belief is only the first step
through the gate in the discussion regarding a claimant’s freedom of religion: S.L.
v. Commission scolaire des Chênes, [2012] 1 S.C.R. 235, at paras. 2 and
26-27.
[88]
In my view, particularly in the context of this
case, a probing inquiry into the claimant’s sincerity of belief is
unwarranted. For a start, it is unclear what sort of evidence a court would
actually require in order for the claimant to establish a sincerity of
religious practice: Sara Weinrib, “An Exemption for Sincere Believers: The
Challenge of Alberta v. Hutterian Brethren of Wilson Colony” (2011), 56 McGill
L.J. 719, at p. 728. Rigorous focus on a claimant’s past religious
practice to determine whether his or her current beliefs are sincerely held is
largely inconclusive, as are the beliefs of co-religionists given the spectrum
of beliefs and practices even within the same religion: Amselem, at
para. 53. Moreover, it strikes me as manifestly unrealistic to assume that a
witness would insincerely wear the niqab in an effort to gain some sort of
testimonial advantage. As a result, I agree that the preliminary inquiry judge
improperly focussed on N.S.’s decision to remove her niqab when having her
driver’s licence photo taken and at potential security checks. The record
shows that N.S. has worn her niqab for five years in sincere religious
observance. In my view, she met the sincerity threshold.
[89]
With great respect, however, I disagree with the
majority that the “strength” of a witness’ belief, while not relevant in
assessing the witness’ prima facie religious claim, is
nonetheless somehow relevant when balancing that claim against trial fairness.
It is unclear to me how a claimant’s “strength” of belief — particularly given
the highly subjective and imprecise nature of the freedom of religion analysis
— affects the protection a claimant should be afforded under the Charter .
Such an approach, in my respectful view, risks re-entering into inappropriate
inquiries into a claimant’s past practices, or into the extent to which a
claimant’s practices follow a religion’s orthodox traditions.
[90]
The next stage of the analysis is to ask whether
permitting the witness to wear the niqab while testifying creates a serious
risk to trial fairness. The accused argues that allowing N.S. to testify with
her face covered by a niqab violates his right to a fair trial both by preventing
effective cross-examination and by presenting an obstacle to the trier of
fact’s ability to assess her credibility. This brings us to the heart of the
issue.
[91]
There can be no doubt that the assessment of a
witness’ demeanour is easier if it is based on being able to scrutinize the
whole demeanour package — face, body language, voice, etc. Nor is there any
doubt that historically and ideally, we expect to see a witness’ face
when he or she is testifying. That, however, is different from concluding that
unless the entire package is available for scrutiny, a witness’credibility
cannot adequately be weighed.
[92]
To start, while I think it is clear that
witnesses in common law criminal courts are expected to testify with their
faces visible to counsel and the trier of fact, it does not follow that if they
are unable to do so, they cannot testify. A general expectation is not the
same as a general rule, and there is no need to enshrine an historic practice
into a “common law” requirement. Canada’s justice journey has absorbed and
accommodated an evolutionary recognition that while history assists in
understanding the past, it need not necessarily command the future. That is
why we have come to use screens for children, interpreters for those without
facility in our official languages, and a myriad of other means to facilitate a
witness’ ability to give evidence in the courtroom. As this case demonstrates,
courts are engaged in a constant process of reconciling historic expectations
and practices with the Charter ’s vision.
[93]
A number of interests are engaged when a witness
is not permitted to wear her niqab while testifying. First, she is prevented
from being able to act in accordance with her religious beliefs. As noted by
Martha C. Nussbaum, religious requirements are experienced as “obligatory and
nonoptional”, that is, as not providing a genuine choice to the religious
believer:
. . . laws
. . . often put religious minorities in something like Antigone’s dilemma:
either they have to violate a sacred requirement or they have to break the law
and/or forfeit some state-granted privilege.
(Liberty of
Conscience: In Defense of America’s Tradition of Religious Equality (2008),
at pp. 117 and 167)
[94]
This has the effect of forcing a witness to
choose between her religious beliefs and her ability to participate in the
justice system: Natasha Bakht, “Objection, Your Honour! Accommodating Niqab-Wearing
Women in Courtrooms”, in Ralph Grillo et al., eds., Legal Practice and Cultural
Diversity (2009), 115, at p. 128. As a result, as the majority notes,
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. It is worth pointing out as well that where the
witness is the accused, she will be unable to give evidence in her own
defence. To those affected, this is like hanging a sign over the courtroom
door saying “Religious minorities not welcome”.
[95]
The order requiring a witness to remove her
niqab must also be understood in the context of a complainant alleging sexual
assault. As this Court stated in R. v. Mills, [1999] 3 S.C.R. 668, “an
assessment of the fairness of the trial process must be made ‘from the point of
view of fairness in the eyes of the community and the complainant’ and not just
the accused” (para. 72): see also R. v. O’Connor, [1995] 4 S.C.R.
411, per McLachlin J., at para. 193. Creating a judicial environment where
victims are further inhibited by being asked to choose between their religious
rights and their right to seek justice, undermines the public perception of
fairness not only of the trial, but of the justice system itself.
[96]
The majority’s conclusion that being unable to
see the witness’ 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, as previously noted, may be no
meaningful choice at all.
[97]
This brings us to the extent to which N.S., by
exercising her freedom of religion in wearing a niqab, harms the accused’s fair
trial rights. The right to a fair trial is crucial to the presumption of
innocence and maintaining confidence in the criminal justice system. While I
agree that witnesses generally and ideally testify with their faces uncovered
in open court, abridgements of this “ideal” often occur in practice yet are
almost always tolerated.
[98]
“Demeanour” has been broadly described as “every
visible or audible form of self-expression manifested by a witness whether
fixed or variable, voluntary or involuntary, simple or complex”: Barry R.
Morrison, Laura L. Porter and Ian H. Fraser, “The Role of Demeanour in
Assessing the Credibility of Witnesses” (2007), 33 Advocates’ Q. 170, at
p. 179. Trial judges often rely on many indicators other than facial
cues in finding a witness credible, including
certitude in speaking, dignity while on the
stand, exhibition of disability, exhibition of anger, exhibition of
frustration, articulate speaking, thoughtful presentation, enthusiastic
language, direct non-evasive answering, non-glib answering, exhibition of modesty,
exhibition of flexibility, normal (as in as expected) body movement, cheerful
attitude, kind manner, normal exhalation, normal inhalation. . . .
(Morrison, at p. 189)
[99]
Moreover, while the ability to assess a witness’
demeanour is an important component of trial fairness, many courts have noted
its limitations for drawing accurate inferences about credibility. In Faryna
v. Chorny, [1952] 2 D.L.R. 354, for example, the British Columbia Court of
Appeal held that relying on the “appearance of sincerity [would lead to] a
purely arbitrary finding and justice would then depend upon the best actors in
the witness box” (p. 356). According to the court, demeanour “is but one of
the elements that enter into the credibility . . . of a witness”, with other
factors including the witness’ opportunity for knowledge, powers of
observation, judgment, memory and ability to describe clearly what he or she
has seen and heard (pp. 356-57).
[100]
The Court of Appeal for Alberta similarly urged
caution in relying on demeanour in R. v. Pelletier (1995), 165 A.R. 138:
I question
whether the respect given to our findings of fact based on the demeanour of the
witnesses is always deserved. I doubt my own ability, and sometimes that of
other judges, to discern from a witness’s demeanour, or the tone of his voice,
whether he is telling the truth. He speaks hesitantly. Is it the mark of a
cautious man, whose statements are for that reason to be respected, or is he
taking time to fabricate? Is the emphatic witness putting on an act to deceive
me, or is he speaking from the fullness of his heart, knowing that he is right?
Is he likely to be more truthful if he looks me straight in the face than if he
casts his eyes on the ground, perhaps from shyness or a natural timidity? For
my part I rely on these considerations as little as I can help.
. . . I judge a witness to be unreliable if his evidence is, in any
serious respect, inconsistent with these undisputed or indisputable facts, or
of course if he contradicts himself on important points. I rely as little as
possible on such deceptive matters as his demeanour. [para. 18]
(Citing a 1973 paper by Justice MacKenna and approvingly quoted in
P. Devlin, The Judge (1979), at p. 63.)
See also R. v. Levert
(2001), 159 C.C.C. (3d) 71, at p. 81.
[101]
The Canadian Judicial Council’s model jury
instructions also acknowledge the inherent limitations in relying on demeanour:
What was
the witness’s manner when he or she testified? Do not jump to conclusions,
however, based entirely on the witness’s manner. Looks can be deceiving. Giving
evidence in a trial is not a common experience for many witnesses. People react
and appear differently. Witnesses come from different backgrounds. They have
different intellects, abilities, values, and life experiences. There are simply
too many variables to make the manner in which a witness testifies the only or
the most important factor in your decision.
(Model Jury Instructions, Part I, Preliminary Instructions, 4.11
Assessing Testimony (online))
[102]
And courts regularly accept the testimony of
witnesses whose demeanour can only be partially observed. Section 14 of the Charter ,
for example, states that a witness who cannot hear, or who does not
understand or speak the language used in the proceedings, has the right to the
assistance of an interpreter. In such cases, “the trial judge ha[s] to make
credibility findings through the filters of the interpreters”: R. v. A.F.
(2005), 376 A.R. 124 (C.A.), at para. 3; see also R. v. R.S.M., 1999
BCCA 218 (CanLII), at paras. 12-14. The use of an interpreter may well have an
impact on how the witness’ demeanour is understood, but it is beyond dispute
that interpreters render the assessment of demeanour neither impossible nor
impracticable. As stated by the Alberta Court of Appeal in R. v. Davis
(1995), 165 A.R. 243:
The
interpreter is usually calm and professional and so the English interpretation
heard by the judge is done in a calm, non-contentious manner. There is a brief
time delay allowing the witness, who [might] understand English, more time to
provide her answer. An interpreter no doubt communicates in appropriate
language when possible, and may well improve upon the explanation of the
witness. I do not suggest for a moment that is done dishonestly, but rather
because there may often be no more appropriate translation.
This is not to say that
witnesses who testify through interpreters can never demonstrate demeanour. They can and do, and the assessment of that demeanour may help a
fact-finder determine truth. [Emphasis added; paras. 18-19.]
[103]
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 thereby impaired.
[104]
There are other situations where we accept a
witness’ evidence without being able to assess demeanour at all. The Criminal
Code, R.S.C. 1985, c. C-46 , permits a judge to order and admit a
transcript of evidence by a witness who is unable to attend the trial because
of a disability, even when the accused’s counsel is not present for the taking
of the evidence: ss. 709 and 713 . Courts also allow witnesses, including
material witnesses, to give evidence and be cross-examined by telephone: Criminal
Code, s. 714.3 ; see also R. v. Chapdelaine, 2004 ABQB 39 (CanLII); R.
v. Butt (2008), 280 Nfld. & P.E.I.R. 129 (N.L. Prov. Ct.).
[105]
Exceptions to hearsay evidence are another
example where the trier of fact is completely unable to assess the demeanour of
the person whose statement is being admitted as evidence. In R. v. Khan,
[1990] 2 S.C.R. 531, McLachlin J. developed a principled exception to the
hearsay rule where the statement met the requirements of necessity and
reliability (p. 542), with the result that the Court in a sexual assault case
admitted the statement of a three-year-old child to her mother because it was
unrealistic to require the child to testify and undergo cross-examination. The
Court noted that “in most cases the concerns of the accused as to credibility
[can] be addressed by submissions as to the weight to be accorded to the
evidence” (p. 547).
[106]
Wearing a niqab presents only a partial obstacle
to the assessment of demeanour. 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’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. Unlike out-of-court statements, defence counsel still
has the opportunity to rigorously cross-examine N.S. on the witness stand.
[107]
It is clear from all of this that trial fairness
cannot reasonably expect ideal testimony from an ideal witness in every case,
and that demeanour itself represents only one factor in the assessment of a
witness’ credibility. As Morden A.C.J.O. noted in R. v. Levogiannis
(1990), 1 O.R. (3d) 351 (C.A.), the ideal is subject to several exceptions and
qualifications in the interests of justice:
Accepting that [face-to-face confrontation]
is a right, of a kind, I do not think that it can be said to be an absolute
right, in itself, which reflects a basic tenet of our legal system. It is a
right which is subject to qualification in the interests of justice.
The
reason underlying the right is said to be that it is more difficult not to tell
the truth about a person when looking at that person eye to eye. . . . [B]ut .
. . it is difficult to dogmatize about this — and in some cases . . . eye to
eye contact may frustrate the obtaining of as true an account from the witness
as is possible. This is why I think the right is more accurately considered to
be one that is subject to exceptions or qualifications rather than a fundamental
or absolute one. [p. 367]
[108]
And since, realistically, not being able to see
a witness’ whole face is only a partial interference with what is, in any
event, only one part of an imprecise measuring tool of credibility, we are left
to wonder why we demand full “demeanour access” where religious belief prevents
it.
[109]
In my view, therefore, 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 not being able to see a witness’ whole face.
[110]
Since, in my view, N.S.’s sincerity has been
established, I see no reason to require her to remove her niqab. I would
therefore allow the appeal and remit the matter to the preliminary inquiry for
continuation, directing that N.S. be permitted to wear her niqab throughout
both the preliminary inquiry and any trial that may follow.
Appeal dismissed, Abella J. dissenting.
Solicitor for the
appellant: David B. Butt, Toronto.
Solicitor for the respondent Her
Majesty The Queen: Attorney General of Ontario, Toronto.
Solicitor for the respondent M‑‑‑d S.: Michael
Dineen, Toronto.
Solicitor for the intervener the
Ontario Human Rights Commission: Ontario Human Rights Commission,
Toronto.
Solicitors for the intervener the
Barbra Schlifer Commemorative Clinic: Norton Rose OR, Toronto;
Simcoe Chambers, Toronto.
Solicitors for the intervener the
Criminal Lawyers’ Association (Ontario): Sack Goldblatt Mitchell,
Toronto.
Solicitors for the intervener the
Muslim Canadian Congress: Borden Ladner Gervais, Toronto.
Solicitors for the intervener the
South Asian Legal Clinic of Ontario: Bennett Jones, Toronto.
Solicitors for the intervener Barreau du
Québec: BCF, Montréal; Barreau du Québec, Montréal.
Solicitors for the intervener the Canadian Civil
Liberties Association: Blake, Cassels & Graydon, Toronto.
Solicitors for the intervener the
Women’s Legal Education and Action Fund: Green & Chercover,
Toronto; Women’s Legal Education and Action Fund, Toronto.
Solicitors
for the intervener the Canadian Council on American‑Islamic
Relations: Peggy Smith Law Office, Kingston.