Niqab-wearing accuser vs. defendant rights: When Charter freedoms clash

| December 12, 2011

The tone of the Supreme Court of Canada on Thursday was tense as Justice Morris Fish asked lawyer David Butt to name one lawyer who'd willingly cross-examine a veiled witness.

Butt replied "some blind lawyers that I know" which was met with an impatient "Well, how about seeing lawyers -- your response quite explicitly and dramatically answers the question." The question before the Court was whether a witness testifying while wearing the niqab -- a veil which covers the face with only the eyes showing -- would undermine the fairness of a trial.

The hearing, in which principles protected equally under the Canadian Charter of Rights and Freedoms came in direct conflict with one another, lasted nearly seven hours in the nation's highest courtroom.

According to a factum from LEAF (Women's Legal Education and Action Fund) , N.S., a Canadian-Muslim woman in her 30s, alleges having been sexually abused by her uncle and cousin between the ages of six and 12. As a child she'd confided in a teacher. However, at the time her father convinced the police to not press charges. The case would effectively remain closed until 2007 when, upon N.S.'s request, charges were pressed against the accused.

At trial, the preliminary inquiry judge ordered that N.S. remove her niqab in order to testify. This order was quashed by the Ontario Supreme Court of Justice and the Ontario Court of Appeal. But N.S.'s right to wear the niqab was never established by the lower courts. Instead, they simply redirected the matter to the preliminary inquiry judge for reconsideration. N.S. then appealed to the Supreme Court of Canada seeking an order entitling her to wear the niqab while testifying at trial.

This means then that out of the 34 appeals on the Supreme Court docket this year, all hot-button topics ranging from copyright wars to hate speech and homosexuality, perhaps the most importunate and of-moment case is R v. N.S.

And here's why.

It is no secret that societal stigma and a general reservation, bordering on fear, of approaching, accessing and utilizing the criminal justice system is why sexual assault and rape is one of the most severely underreported crimes.

Throw in a victim of colour or a minority with immigrant status, and the likelihood of her being susceptible to fear and intimidation of Canada's law enforcement and court room authorities becomes that much more amplified.

On its face, R v. N.S. engages the complainant's s. 7 rights to life, liberty, and security of the person and s. 15 rights to equality.

"The right to practice one's religion is protected if there is a sincere, subjective belief that a practice is mandated by religion," University of Manitoba law professor and director of the Centre for Human Rights Research, Karen Busby, told rabble.ca in an interview.

"Niqab-wearing women believe that the practice is mandated and that it brings them closer to God," said Busby. "Ironically, the defendants are her uncle and cousin and the alleged abuse took place over many years... [but] she could show them her face in court [because they are related]. The problem is the other men in the courtroom."

A decision against N.S. could have severe implications for sexual assault cases.

It is a time-honoured tradition for finder's of fact to rely on a witness's demeanour to assess credibility. But forcing women to disrobe and then face the court, including the perpetrator of her attacks, has enormous potential of further relegating victims of sexual assault to the fringes of society -- making minute an already minority population.

The defence argues the necessity of seeing a complainant's face in order to best structure a cross-examination. Thus, it becomes crucial for the courts to reconcile the accused's right to a fair trial -- one of the inviolable pillars upholding this country's legal system -- with the complainant's freedom of expression.

But let's be clear on a couple of things.

This is not about how you or I feel about the niqab, hijab or any other symbol so frequently and vociferously alleged to be a form of a Muslim woman's mind, body, and sexuality's oppression. This certainly does not extend to the perceived ultra-nefarious global threat of Islamicism.

Instead, what this case is about is honouring a connection which, the individual alleges with her religiosity. This is about challenging the sterility of the courtroom by bringing in compassion, tolerance, and honouring the value system of those knocking on justice's door. Lending a term from economists, isn't trickle-down, from the highest Court of Canada to the street, not one direction for change to seep in to society at large?

In the courts, demeanour is not restricted to a witness's facial expressions. The right to make full answer and defence wouldn't be infringed had N.S been blind or suffering from a deformity leading to arbitrary and uncontrollable facial movements or even if she had required a sign language interpreter due to a hearing disability.

In fact, pursuant to section 714.3 of the Criminal Code, the courts even accept witness testimony and allow for cross-examination, over the telephone.

Really, just as there is no foolproof and verifiable way of telling who is the host of truth and who is the consummate liar between a well-polished individual taking the witness stand in opposition to an unkempt, unruly-in-appearance witness, there is no unassailably failsafe way of establishing the integrity and credibility of the veiled witness standing next to the unmasked one.

As intervener, Canadian Civil Liberties Association, quote in a court-filed factum:

"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...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... straight in the face than if he casts his eyes on the ground, perhaps from shyness or a natural timidity?"

Combine that with other variables; the witness's intelligence, race, social status, level of comfort, age -- and what you are left with is a means of getting at the truth that based on a whole lot of subjectivity and very little bearing on a person's actual truthfulness.

In light of recent anti-niqab legislation across Europe and Quebec's Bill 94, coupled with this case's clash of fundamental Charter-protected freedoms, whichever way the Court goes, the decision will be the legal playing field's magnum opus, speaking volumes and bearing heavily on where we currently stand as a society.

Maria Kari is a writer and law student from Vancouver, B.C. Follow her on Twitter: @mariakari1414.

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