Dissenting Justice Says Niqabs Can Be Worn
Justice Abella held that, barring certain defined circumstances, women who hold a sincere religious belief that the niqab must be worn should be allowed to wear one while giving evidence. One exception is when the identification of the witness is at issue.
Abella pointed out there are other circumstances in which the demeanor of the witness cannot be fully observed. Examination of a witness’s demeanor is impacted when they give evidence through an interpreter.
And some witnesses have physical or medical limitations that result in involuntary body movements or speech impediments that prevent their demeanour from being accurately determined.
Yet none of these witnesses are prevented from testifying even though their cross examinations may be affected.
The justice also noted that a conflict between religious beliefs and the criminal justice system may result in witnesses attempting to avoid giving evidence as a witness if they have to bare their faces. And victims of a crime may be hesitant to report it if they know they will be forced to remove their face covering when they appear in court.
Muslim Women May Wear Niqab: Depending On Circumstances, Says Majority
The remaining four justices held the competing rights should be balanced and employing the extremes; that a niqab can never be or can always worn by a witness is unrealistic. The majority devised four questions that trial judges must answer to make a proper determination.
The first question to be asked is whether the witness’s religious belief is sincere. If “yes,” then her religious rights are interfered with if she has to remove her face covering and this leads to the second question. Is there a serious risk (the risk has to be a serious one) to the fairness of a trial if the witness is allowed to wear a niqab?
If the answer that question is “yes,” then the trial judge must decide if the conflict between the competing rights can be reconciled in any way. If the answer to that question is “no,” then the court must go on to the fourth question.
The fourth question is whether the benefits of having the niqab removed outweigh the deleterious effects of requiring the witness to go against her religious beliefs. In arriving at this conclusion the court is required to balance a variety of factors. These include the importance of the witness’s testimony, the loss of liberty upon conviction, safeguarding the administration of justice and the societal interest in not dissuading women who wear niqabs from participating in the justice system.
Only by conducting such an examination can the rights to religious freedom and a fair trial be fully reconciled.
Next Steps for N.S. Trial
The matter has been sent back to the preliminary inquiry judge for a determination based upon the criteria set out in the majority decision.
Judgments of the Supreme Court of Canada. R v. N.S. (2012). Accessed December 28, 2012.
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