The Supreme Court’s Decision in N.S – a bright line rule, thinly veiled

1. The Supreme Court’s Decision in N.S – a bright line rule, thinly veiled Ewa Krajewska Associate at Borden Ladner Gervais LLP ekrajewska@blg.com 416.367.6244

2. The Underlying Allegations • N.S. alleged that when she was a young girl, she was repeatedly sexually assaulted by her uncle, the accused, M. ---l.S, and her cousin, the accused M. --- d.S. • The offences allegedly occurred between 1982, when N.S. was six years old, and 1987. • In 1992, N.S. revealed the assaults to a teacher who spoke to N.S.’s parents. N.S.’s father did not want to proceed and the police did not lay charges at the time. • The accused were ultimately charged with various sexual assault offences against N.S. in two informationssworn in 2007.

3. The Preliminary Inquiry • At the outset of the preliminary inquiry, the accused sought an order requiring N.S. to remove the niqab while counsel cross-examined her. • Neither accused filed affidavits in support of their application. • A police officer asked N.S. if she would testify without a veil. She refused. • The accused then advised that they would not admit the sincerity of her belief and wished to cross-examine her on it. • The Crown asked the court to give N.S. the opportunity to retain legal advice.

4. The preliminary inquiry judge decided to immediately question N.S. “informally.” • She was not asked to take an oath. • The appeals proceeded on the understanding that she had not been cross-examined.

5. N.S. was questioned on an “informal basis” by Justice Weisman • N.S.:   Okay.  So the – the objection is very strong.  It’s a respect issue, one of modesty and one of – in Islam, we call honour.  The other thing is the – the accusedsin the case are from the same community, they all go to the same place of worship as my husband as well and I’ve had this veil on for about five years now and it’s – my face doesn’t make any special, you know, like, I know that – you know, there’s body language, there’s eye contact.  I mean, I can look directly at the defence counsel, that’s not a problem.  But I don’t – you know, I really feel that, you know, it’s a part of me and showing my face to – and it’s also about – the religious reason is to not show your face to men that you are able to marry.  It’s to conceal the beauty of a woman and, you know, we are in a courtroom full of men and one of the accused is not a direct family member.  The other accused is a direct family member and I, you know, I would feel a lot more comfortable if I didn’t have to, you know, reveal my face.  You know, just considering the nature of the case and the nature of the allegations and I think, you know, my face is not going to show any signs of – it’s not going to help, it really won’t.  • THE COURT:  All right.  So there is a difference of opinion as between you and counsel as to whether it will help.  Now, can you just tell me, when are you without your veil? • N.S.:  Only with family members.  So people that you are not allowed to marry.  So, father, brother, father in law, dads, brothers, moms brothers and women, all women, and children. • THE COURT:  But not in public. • N.S.:  Not in public, no. 

6. But… she was cross-examined • Application before Morrocco J., Ont. C.A. proceeded on the basis that she was not cross-examined. • She had in fact been cross-examined. That transcript is only filed at the Supreme Court of Canada.

7. Cross-examination • Whether N.S. ever made an exception to not wearing the veil: • medical examination? • passport photograph? • driver’s license: • Photograph taken without the niqab by a female photographer in an open office with a screen between the Applicant and male onlookers.

8. The late-filed transcript: • Q. Ms. [N.S.], in terms of being in a courtroom environment, if there were an issue as to proving your identity what possible things would you be comfortable in doing in terms of being able to ascertain your identity in a court environment/ have you ever turned your mind to that? • A. Well, who – like who would need to authenticate the identity? • Q. If potentially if it was the trial judge in the Court or his Honour, have you ever turned your mind to that sort of situation? • A. If the judge needed to see that I am who I am on the driver’s license, then I could show him like I could do it in front of him because he is the guy in authority in this case, if it was a border guard, same thing and judges, license and the person would compare the picture, it’s not – it’s not for everybody to say okay, yes, pass it on, just the one person that is in authority of whatever you are trying to do and if this difficulty comes up.

9. Justice Weisman’s Decision • Decided he has jurisdiction: this is an evidentiary issue. • Balancing of Charter values: • accused has the right to make full answer and defence; • N.S.’s freedom of religion. • Justice Weisman found that N.S.’s decision to pose for the photograph was not consistent with the strength of her belief about showing her face. • Driver’s license exception. • Candid admission that it was a matter of her being “more comfortable”.

10. Application to Superior Court – Marrocco J. (95 OR (3d) 735) • N.S. moved for an order in the nature of certiorari quashing the order requiring that she remove her niqab + an application under s. 24(1) of the Charter. • Three grounds: • Lack of jurisdiction; • Violation of her right to freedom of religion; • Procedure followed by the preliminary inquiry judge was unfair and resulted in jurisdictional error.

11. Superior Court (Cont.) • Marrocco J. quashed the order that N.S. testify without her niqab and sent the matter back to the preliminary inquiry judge with a direction. • N.S. should be allowed to testify wearing a niqab if she assertes a sincere religious reason for doing so. • But, the preliminary inquiry judge would have the option to exclude her evidence if the niqab were found to have prevented true cross-examination.

12. Ontario Court of Appeal – Doherty, Moldaver and Sharpe JJ.A.(2010 ONCA 670) • Jurisdiction: • Preliminary inquiry judge has no remedial jurisdiction under the Charter (R. v Mills) • But hehas the jurisdiction to consider and balance Charter values when exercising her statutory powers. • Example: R v L.R. (1995), 100 CCC (3d) 329 where the accused brought an application requiring the production at the preliminary inquiry of certain psychiatric records of the victims. • There is no specific statutory provision of Part XVIII of the Criminal Code that addresses orders involving the attire of witnesses. • But judge has the power to regulate the course of the inquiry “in any way that appears to the justice to be consistent with the Act”.

13. Fair Trial Rights • Accused’s statutory right to cross-examine a witness called by the Crown at the preliminary inquiry is a component of his right to make full answer and defence at trial. • But, not every limit on the right to cross-examine compromises trial fairness. Denial from the traditional face to face public confrontation between accused and witness will run afoul of the Charter only if they result in a denial of a fair trial to the accused.

14. Context: From the Specific to the Broad • The somewhat limited manner in which the wearing of the niqab interferes with the trier of fact’s assessment based on demeanor. • Nature of the proceedings: • Jury trial v. judge alone; • Preliminary inquiry v. trial. • Nature of the evidence to be given by the witness. • Nature of the defence to be advanced and any specific grounds linking the ability to see the witness’ face. • Broader constitutional values: • N.S. is a Muslim, a minority that many believe is unfairly maligned and stereotyped in contemporary Canada. • N.S. is an alleged victim in a sexual assault case. • Visible administration of criminal justice in open courts where witnesses, judges, and the accused can be seen and identified by the public.

15. N.S. seeks leave to the SCC

16. Interveners – For the Niqab • South Asian Legal Clinic of Ontario: • Importance of access to justice. • Barbra Schlifer Commemorative Clinic: • initial onus should be on the accused to demonstrate that his right to a fair trial is compromised. • LEAF: • history of discriminatory demands made of women in sexual assault cases. • CCLA: • Accused who seeks an order compelling a witness to remove her niqab should be required to establish (1) that there is a real and substanial risk to the fairness of trial, no reasonable alternative measures, and that the salutary effect of the order to remove the niqab outweigh the deleterious effects. • Canadian Council on American-Islamic Relations • Presumption of admissibility with respect to the testimony of women in niqab.

17. Interveners – For the Accused • Canadian Criminal Lawyer’s Association • Right of the accused to make full answer and defence should prevail over the request of a witness to wear a niqab testifying. • Importance of demeanour to the trier of fact; • Advocates’ ability to effectively cross-examine is integrally tied to her observation of the witness’ facial cues. • Complainant’s Charter rights not equivalent to an Accused

18. Other Interveners • Ontario Human Rights Commission • Develop a test to reconcile rights. • Barreau du Quebec • No hierarchy of rights. • Attempt to find an equilibrium. If not possible, then complainant should remove her niqab. • Muslim Canadian Congress • A meaningful and particularized inquiry must be held in each case where freedom of religion is raised by an applicant. • Wearing the niqab is an unequal and potentially isolating practice for women. • Deleterious effects are lessed when the religious pracitce or belief is removed from the core values of a free and democratic society.

19. SCC Hearing • Only three interveners granted leave to make oral submissions: Barbra Schlifer Clinic, MCC and Criminal Lawyer’s Association. • Impression from the hearing was that Justices Lebel and Fish were pretty strong on the right to cross-examine the accused.

20. Supreme Court of Canada • Three sets of reasons: • McLachlin C.J.,Dechamps, Fish, Cromwell JJ. • Lebel and Rothstein JJ. • Abella J.(dissenting)

21. The Chief Justice’s Reasons • The Framework: • Would requiring the witness to remove the niqab while testifying interfere with her religious freedom? • Would permitting the witness to wear the niqab while testifying create a serious risk to trial fairness? • Is there a way to accommodate both rights and avoid the conflict between them? • If no accommodation is possible, do the salutary effects of requiring the witness to remove the niqab outweigh the deleterious effects of doing so?

22. Freedom of Religion • The issue 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. • Critical of the preliminary inquiry judge. • Matter should be returned to preliminary inquiry judge for full consideration of whether N.S.’s desire to wear a niqab is based on sincere religious belief.

23. Serious Risk to Trial Fairness • No expert evidence in this case on the importance of seeing a witness’s face to effective cross-examination. • The common law, supported by provisions of the Criminal Code and judicial pronouncements, proceeds on the basis that the ability to see a witness’s face is an important feature of a fair trial. • Face to face confrontation is the norm, although not an independent constitutional right. • 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.

24. Reconciliation / Accommodation • When matter returns before the preliminary inquiry judge, parties should put evidence before the court relating to possible accommodation: • Excluding men from the courtroom? • Closed-circuit television? • One-way screen?

25. Salutary v Deleterious Effects • 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.

26. Deleterious Effects

27. Salutary Effects • Preventing harm to the fair trial interest of the accused and safeguarding the repute of the administration of justice. • Cost of unfair trial is severe. • Right to a fair trial is a fundamental pillar without which the edifice of the rule of law would crumble. • Even at preliminary inquiry

28. Hints as to where the majority is going… • “Where evidence is uncontested, credibility assessment and cross-examination are not in issue; therefore, being able to see the witness’ face will not impinge on the accused’s fair trial rights.” • “An important consideration will be the extent to which cross-examination and credibility assessment on this witness’s testimony is central to the case.” • “As already discussed above, if the witness’ 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.” • “At this point, however, it may be ventured that where the liberty of the accused is at stake, the witness’ 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.”

29. Justices Lebel and Rothstein • Strict rule against wearing the niqab. • “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?”

30. Trial is an act of communication with the public at large • “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.”

31. Justice Abella (dissenting) • Agrees with 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. • Disagrees with the majority that the “strength” of a witness’ belief, while not relevant in assessing the witness’s prima facie religious claim, is nonetheless somehow relevant when balancing that claim against trial fairness.

32. Chilling effect on complainants in sexual assault cases. • “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.”

33. The Limits of Demeanour Evidence • Cases critical of demeanour evidence. • Courts regularly accept testimony of witnesses whose demeanour can only be partially observed: • Assistance of an interpreter • Physical or medical limitations. • Exceptions to the hearsay rule: R v. Khan, [1990] 2 SCR 531

34. What if the witness is the accused? • Only raised by Justice Abella in her dissenting reasons. • May not be the same considerations.

35. Merci !