Sunday, December 23, 2012

Niqabs in Canadian courtrooms? Sometimes...maybe...says Supreme Court

Woman in Niqab - courtesy of The Guardian
The Supreme Court of Canada has issued an important and controversial ruling tackling the issue of the right a witness to wear a niqab (with a face covering, showing only the eyes of the wearer) in a criminal trial.  In the case of R v. N.S., seven judges participated in the decision.  The Court issued three different sets of reasons.  The majority decision, supported by four of the seven judges, held that a woman may be asked to remove a niqab in certain specified circumstances, but may be able to wear it otherwise.   Two of the judges would have ordered that women testifying in court must always remove their niqabs.  One judge would have permitted the wearing of a niqab in almost all cases other than where identity is at issue.

The majority decision is written by Canada's Chief Justice McLachlin.  The decision is balanced and thoughtful.  It tries to weigh two competing interests - religious tolerance and the right to a fair and open trial in a criminal proceeding.  It sets out rules for adjudicating cases in which these two sets of rights come into play.

Canada's Supreme Court has developed a strong tradition of emphasizing the acceptance and accomodation of religious minorities. Its decisions have recognized that accommodating minority religious belief and practice is integral to Canadian values as a welcoming multicultural country with a diverse population. 

However, these rights are not unlimited.  Chief Justice McLachlin discusses the importance in Canada of a fair and open trial for the accused and the need to be vigilant in protecting against the possibility of an unfair trial.  This right to a fair trial comes into a direct clash with freedom of religious practice in this case and the Court must find a way to address this challenge.  All seven judges recognize the need to resolve this clash.

The majority runs into difficulties in trying to apply these principles and balance the two rights without coming down clearly on one side or the other.  In this case, the witness was the alleged victim of sexual assaults. She was to be a key witness in the trial.  There is little doubt that two competing rights are fully engaged.  Yet, the majority decides that the case should be sent back to the trial judge to determine whether the witness was "sincere" about her religious belief of the need to wear the niqab.  The majority also suggests that the trial judge should consider how important it is to the accused that the accused be able to see the face of the witness during disputed evidence.  Chief Justice McLachlin sets out a test for dealing with these matters.  But ultimately, any reasonable application of the majority's test, based on everything the Chief Justice writes elsewhere in her decision, will lead to the removal of the niqab in most cases involving a criminal trial.  While the court's attempted sensitivity is admirable, the decision muddles the matter and creates some extra layers of judicial uncertainty where the results will be predictable most of the time based on the principles set out by the Court. 

Two of the Supreme Court's judges, Justices LeBel J. and Rothstein J. issued a dissenting set of reasons in which they would have adapted a clear rule that a niqab can never be worn in a court room.  Their decision suggests that any manifestation of religious practice is unwelcome if it clashes with "Canadian values" and seems to depart markedly from the more sensitive accomodation-oriented wording that is found in the majority decision and that has characterized other Supreme Court decisions in freedom of religion cases.  For these judges, the rights of the accused always trump freedom of religion.  They would not have allowed a woman to wear a niqab in a court, even where the evidence to be given is uncontroversial, irrespective of the consquences for the woman and her religious beliefs.

Justice Abella issued a lone dissenting opinion.   Her decision would have permitted women to wear niqabs in Canadian court rooms in all cases other than where identity is at issue.  Like the majority decision, Justice Abella's  decision considers this to be a case of a clash between two sets of competing rights.  However, Justice Abella is not convinced that a witness must always show her full face for there to be a fair trial.  She cites the examples of the use of interpreters, child evidence behind screens and other recognized exceptions.  Moreover, she is concerned about the possibility that women who have been assaulted will not come forward to testify because they would face the requirement to violate their religious practices.  As a result, she would have departed from the majority and would have required women to remove niqabs only
where identity is at issue.

The case addresses an issue that is extremely important for every democratic, multicultural country.  How should courts reconcile competing constitutional rights?  Do the rights of the accused always trump the right to religious freedom?  Is there a way to try to accomodate these competing rights?  The Court did not even consider the notion of whether equality rights also come into play.  That is another issue that courts worldwide will face with increasing regularity.

While the decision of Canada's Supreme Court is a valiant and well-meaning effort, it fails to set out clear guidelines.  If the court intended to ban the niqab in most cases, other than where the evidence is "uncontested" it should have said that clearly and ended the matter.  This seems to be the way that this decision will be interpreted most of the time.

In this case however, the Court chose to send the matter back to the trial judge to examine the witness's sincerity.  As Justice Abella concludes, this is probably unnecessary.  In most cases, sincerity will not be in issue.  However, it should be largely irrelevant and near impossible to discern.  The Court needs to set out guidelines for when a witness can or cannot wear a niqab in a criminal trial, assuming sincerity and assuming that the evidence is contested.  I suspect this type of case will wind up back at the Supreme Court in a reasonably short period of time and the Court will be required to issue a more definitive decision.


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