What happens when the constitutionally protected right of an accused to confront his accuser conflicts with the constitutionally protected right of a citizen not to be discriminated against on the basis of her religion?

According to the Supreme Court - it depends: R v NS, 2012 SCC 72 [see previous post on NS by Dallas: Niqabs and the Criminal Justice System].

M---D S. & M---l S. were charged with sexually assaulting N.S. The parties were N.S.’ cousin and uncle, respectively. The Crown elected by indictment and a preliminary hearing commenced.

At the preliminary hearing the Crown sought to call N.S. as a witness. N.S., a Muslim, wished to testify while wearing her niqab. Both accused sought an order forcing her to remove her niqab when testifying so that they could they could effectively cross-examine her and so that the court could assess her demeanour. A voir dire was conducted.

During the voir dire N.S. explained that her religious belief required her to wear the niqab while in public where men might see her. She conceded, however, that her niqab was removed for a driver’s licence photo taken by a female photographer and that if required she would remove the niqab for a cross border security check.

With these admissions the preliminary hearing judge ruled that her religious beliefs were “not that strong” and ordered her to remove the niqab. The preliminary hearing was adjourned and the matter was appealed, eventually arriving before the nation’s highest court.

In a split majority decision, the Supreme Court ruled that there is no clear rule that would always or would never permit a witness to wear the niqab. Instead, the majority held that a witness, who for sincere religious reasons wishes to wear the niqab while testifying, would only be required to remove it if it would cause a serious risk to the fairness of the trial and if the salutary effects of requiring her to remove it outweigh the deleterious effects of doing so.

Applying this test to the facts of the case, the court first commented that the preliminary hearing judge failed to conduct an adequate inquiry into the sincerity of N.S.’ religious claim. The focus should be the sincerity of the belief rather than the strength of the belief itself.

The Court next recognized that the common law, as a general rule, requires witnesses to testify in open court. However, the court noted that this practice is the norm, not a constitutionally protected right. Moreover, Parliament has recently enacted a number of provisions to assist witnesses in their testimony including having children testify via close circuit television, behind a screen or even by audio link so long as “any potential prejudice to either of the parties caused by the fact that the witness’s face would not be seen by them”.

While the ability to observe a witness’s face clearly affects trial fairness in terms of assessment of demeanour and ability to cross-examine effectively, this risk to trial fairness must be “real and substantial” or “serious”.

Next, the court held that if both the sincerity of religious belief and a real and substantial risk to trial fairness exist the court should attempt to find some other accommodation to solve this conflict. In this case, closed circuit television or a one-way screen may have been options to consider.

Finally, if no accommodation can be made, the court must consider the harm that would be done by limiting the sincerely held religious belief of the witness as well as the broader societal harm from forcing her to remove her niqab. Witnesses may refuse to testify, wrongs will remain undressed, justice will be denied, and perpetrators of crimes will go unpunished immune from legal consequences.

Having considered these deleterious effects the court must balance them against the prospect of an unfair trial. This is of critical importance, not only to the accused, but to public confidence in the justice system.

In summary, the trial court deciding this issue must consider the following four questions:

1) Would requiring the witness to remove the niqab while testifying interfere with her religious freedom?

2) Would permitting the witness to wear the niqab while testifying create a serious risk to trial fairness?

3) If both freedom of religion and trial fairness are engaged, is there a way to accommodate both rights and avoid the conflict between them?

4) If no accommodation is possible, do the salutary effects of requiring the witness to remove the niqab outweigh the deleterious effects of doing so?

The matter was remitted back to the preliminary judge to follow the above test.

The above approach by the majority represents an even-handed attempt to balance conflicting constitutional rights.

Consider, however, that in answering the fourth question there are very few circumstances in which the salutary effects of requiring a witness to remove the niqab would ever outweigh the deleterious effects of doing so. Religious freedom, particularly for victims of sexual assault is a right that should be zealously protected even when it comes into conflict with other constitutional rights. Moreover, courts have repeatedly affirmed that while an accused is entitled to a fair trial he is not entitled to the fairest of all trials.

This reality is represented in the dissent of Abella J. who held that a witness with a sincerely held religious belief should always be allowed to testify wearing a niqab, save and accept where a viewing of her face is directly relevant to the proceedings, such as where the identity of witness is in issue.

In justifying this approach she concluded:

Creating a judicial environment where victims are further inhibited by being asked to choose between their religious rights and their right to seek justice, undermines the public perception of fairness not only of the trial, but of the justice system itself [para 95].