R v NS: Behind the Veil on Niqabs in the Witness Stand

In R v NS, 2010 ONCA 670, a unanimous Ontario Court of Appeal sets out a framework for triers of fact who that are dealing with a question that is becoming increasingly prevalent in our multicultural society: should a female Muslim witness be allowed to wear a niqab – a veil that covers the face – while testifying before a court?

In dealing with the issue, the court was confronted with an incredibly challenging set of facts. N.S. alleged that she was repeatedly sexually assaulted by her uncle and cousin, the accused M—I.S. and M—d.S., when she was a child. The alleged abuse occurred between 1982 and 1987, and began when N.S. was six years old. The assaults were revealed to a teacher in 1992, but N.S.’s father did not want to proceed with charges at the time.

At the preliminary inquiry, both accused men sought an order that would require N.S. to remove the niqab before testifying. N.S., unassisted by counsel at the time, strongly objected to the motion. She testified that the niqab was an important part of her beliefs, and being asked to remove her religious garb as part of a judicial proceeding would make her very uncomfortable.

The accused, on the other hand, put forward the argument that given the severity of the charges against them, their right to make full answer and defence required that they be able to see the witness’s face, particularly when she was being cross-examined.

To further complicate the matter, the preliminary inquiry judge’s reasons indicate that he was made aware of the fact that N.S. had previously been photographed for a driver’s licence. Although special accommodations had been made for the photograph to be taken in the presence of a female photographer, the judge in the preliminary inquiry eventually concluded that the complainant’s religious belief “is not that strong,” and that she should testify in the preliminary inquiry without her veil.

At the appellate level, the court set out a framework for balancing the complex competing rights that are often at stake when the religious beliefs of a witness are in conflict with the rights of the accused.

Facts and History

At the Superior Court, it was held that “where an application is made to require a witness to remove her niqab, the court must enquire into the reason for the wearing of the niqab and the genuineness of any religious belief relied on to explain the wearing of the niqab.” The court quashed the preliminary inquiry judge’s order requiring that N.S. testify without a niqab, and the matter was remitted to the preliminary inquiry judge for redetermination.

N.S. then sought relief in the Court of Appeal, where the court considered if the preliminary inquiry judge had the jurisdiction to decide whether a witness should be required to change their attire. While the Court noted that a judge in a preliminary inquiry has no remedial jurisdiction under the Charter, the judge can take Charter principles and values into consideration when exercising statutory powers. The court concluded that:

If the preliminary inquiry judge must render decisions that are in accordance with the Charter, he or she must have regard to competing Charter values and endeavour to render decisions that reflect an appropriate reconciliation of those values.

The court was ultimately satisfied that a preliminary inquiry judge has the statutory power to regulate how a witness would testify, including the power to ask a witness to change their attire before they take the stand.

Unveiling a New Approach to the Niqab

After answering the first issue on appeal in the affirmative, the Court of Appeal went on to consider whether the preliminary inquiry judge had erred in law by requiring N.S. to remove her niqab. In considering this issue, the Court was clearly aware of the broader political debate surrounding the hijab and the niqab. Earlier in the judgment, the Court noted:

The wearing of a niqab in public places is controversial in many countries including Canada. The controversy raises important public policy concerns that have generated heated debate. Those difficult and important questions are not the focus of this proceeding and cannot and should not be resoled in this forum.

The court’s technique in distancing itself from the broader public debate about Muslim religious garb was to compare the rights of the witness in this case to a witness who is wearing dark sunglasses, and the various constitutional values that are attached to the witness’s reasons for wearing the glasses.

The court’s analysis of the preliminary inquiry judge’s decision similarly tries to divorce the niqab from the broader public debate. Instead, the court places the focus on the parties’ interests that are at stake specifically in this case.

The Court of Appeal’s decision dictates that when deciding on such an issue, the preliminary inquiry judge must attempt to reconcile the rights of the parties, and ensure that “no Charter right be treated as absolute and that no one right be regarded as inherently superior to another.” The court first considered the accused men’s right to a fair trial, noting that covering the face of a witness may impede cross-examination by limiting the trier of fact’s ability to assess the demeanour of the witness, and depriving the cross-examiner of insight provided by non-verbal communication.

The court then considered the religious rights that are at issue, using jurisprudence under s. 2(a) of the Charter, dealing with freedom of religion, as a framework for an assessment of the complainant’s rights. The court also considered the preliminary inquiry judge’s use of the driver’s licence photograph as a central factor, noting that it may provide some insight when measuring the sincerity of the religious beliefs, “past practice cannot be equated with present belief.” However, the court did set out a way for past exceptions to be tendered as part of the analysis:

I think it would be important, given the information provided concerning the licence photograph, to determine the extent to which N.S.’s belief that she must wear a niqab in public admits of exceptions. If that belief admits of an exception that could reasonably cover the circumstance of a witness testifying at a criminal trial, I do not think that N.S.’s right to religious freedom would extend to her decision that she would not avail herself of that exception in this particular situation. If testifying without the niqab – perhaps in modified circumstances, including, if need be, the exclusion of the male public except for the accused and counsel – would fall within the boundary of the exception that N.S. has recognized to her requirement to wear a niqab in public, requiring her to remove that niqab to testify, even if she did not want to do so, would not interfere with her ability to act in accordance with her personal religious beliefs.

The court then set out the approach a preliminary inquiry judge may take in reconciling these rights. First, they would determine whether the course of action is religiously motivated, and whether the claimant’s religious beliefs are sincerely held. If the judge is satisfied that the answer to these questions is in the affirmative, they must then determine the level of interference with the accused’s ability to conduct a cross-examination.

If the judge is satisfied that both parties’ claims are sufficiently engaged, the judge must try to reconcile the rights by first trying to give effect to both. The court noted that context becomes important at this stage, because the trier of fact must consider the interference with assessments based on demeanour, the nature of the proceeding, the forum where the trial will be conducted, and the nature of the evidence that will be given by the evidence. The court also noted that the nature of the defence, and any grounds that link the ability to see the witness’s face with the defence’s ability to make full answer and defence, will also configure into this contextual analysis.

As part of this context-specific analysis, the court also found that the preliminary inquiry judge must take other constitutional values and societal interests into account, such as minority rights and access to justice. The court noted that there are public interest arguments for and against wearing a niqab when testifying in a trial; the inability to protect their religious beliefs could make Muslin women less likely to lay criminal charges for fear of testifying in court. Although a trier of fact may not be able to give full voice to all of these diverse and competing interests, the court noted that they should be acknowledged and considered in reaching a decision.

In trying to reconcile these rights, preliminary inquiry judges would also have the option of “constructive compromises,” where accommodations such as an all-female court staff and female judge can be used to address both concerns.

The Court of Appeal also left the door open to the possibility that efforts to reconcile the rights of the witness and the accused may fail. In these cases, the court noted:

If the judge concludes that the wearing of the niqab in all of the circumstances would infringe the accused’s right to make full answer and defence, the right must prevail over the witness’s religious freedoms and the witness must be ordered to remove the niqab.

The Court of Appeal agreed with the Superior Court that the preliminary inquiry judge’s order should be quashed, and that the matter should be remitted to the judge to conduct a proper inquiry into the issue.

A Fine Balance

In N.S., the court manages to sketch out a well-balanced approach to the issues of witnesses in niqabs, placing the focus on a balancing of rights. Given the circumstances of a judicial proceeding, the court struck an appropriate balance. This approach allows equal consideration of the rights of both parties, and the trier of fact is left with the responsibility of reaching a contextual compromise.

Although the current controversy about the merits and appropriateness of wearing niqabs and hijabs in public in Canada will continue, the court was right to decouple the issue in the case at bar from the broader public debate and should be applauded for their efforts in doing so.

It remains to be seen if N.S. will be appealed to the Supreme Court of Canada. Quite frankly, it does not need to be. In articulating a framework for judges who are faced with similar conflicts in the future, the Court of Appeal has done an excellent job of striking the right balance.