On December 20, 2012, the Supreme Court of Canada handed down a decision that tried to balance the religious freedom of Muslim women who wear niqabs with the right of criminal defendants (called the “accused” in Canada) to receive a fair trial.
Although the Supreme Court of Canada is composed of nine justices, only seven took part in the case. Two judges found the right of an accused to a fair trial superseded the right of a Muslim woman to cover her face while testifying.
The lone dissenting judge found such witnesses should be allowed to wear a niqab provided the belief it must be worn is genuinely held and there are no special circumstances.
The four remaining justices, who made up the majority, decided that a Muslim woman’s right to conceal her face should be determined on a case-by-case basis.
Assault Witness Argues Right to Wear Niqab
The complainant, whose name is protected by a publication ban and is known only as “N.S.”, went to the police and claimed she was sexually assaulted by her uncle and cousin when she was younger.
Both men were charged with sexual assault and a preliminary inquiry was commenced in 2009.
N.S. told the court she was a practising Muslim and wanted to testify wearing her niqab. Both accused argued that to have her face concealed while giving evidence breached their right to have a full and fair trial and impeded cross examination.
The preliminary inquiry judge held a voir dire in which N.S. was allowed to testify while her face was covered. She testified she had removed her niqab for a woman to take her driver’s license photo and said she would remove the face covering for a security check at a border point.
The judge determined that although she held a sincere religious belief, it was “not that strong.” He ordered the woman to remove her niqab while testifying. N.S. appealed.
Niqab Appeal Ruling: Judge Can Exclude Evidence
On appeal to the Ontario Superior Court of Justice, Justice Frank Marrocco overturned the decision. He ruled she had a sincere religious belief and could testify while concealing her face. But the judge also held that the preliminary inquiry judge could exclude her evidence if he found the accused had been prevented from conducting a proper cross examination. As N.S. was an essential witness, this would mean there would have been no evidence upon which to commit the men for trial. N.S. appealed this decision to the Ontario Court of Appeal.
The Court of Appeal recognized the competing rights; the right of freedom of religion and the right to a fair trial. The appellate court held if the witness is found to hold a sincere religious belief that mandated the wearing of a niqab, the court had to examine whether concealing her face could result in a fair trial.
Some factors to be taken into account included the importance of the testimony, credibility, the demeanor of the witness and the nature of the defense. The court returned to matter to the preliminary inquiry judge. N.S. appealed this decision to the Supreme Court of Canada.
No Niqab, According to Two Justices
Two members of the court decided the right to a fair trial was just as important as religious rights but that any infringement upon the right to a full and fair cross examination was overriding. Denying an accused the right to a proper cross examination can affect the determination of his or her guilt or innocence.
The justices also wrote about how an open and independent court system is necessary in a democratic society. The public have a right to be able to see how the justice system works. This cannot be accomplished if a witness conceals her face and is unable to fully interact with the judge, the accused, lawyers and jurors.
These justices also found taking factors such as the importance of the testimony into account would make criminal proceedings unduly complex. Wearing a niqab at any stage of a criminal trial violates the principle of open trials and should never be allowed.
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