R. v. N.S., 2012 SCC 72

Two accused persons stood charged with sexually assaulting N.S. When called to testify, N.S. stated that she wished to wear a niqab which covered her face, and which she insisted was a necessary part of her Muslim faith.

The trial judge refused to let N.S. wear the niqab on the grounds that she had not proven that her religious faith was sufficiently strong to justify it. The Court of Appeal upheld this conclusion, finding that when a witness’ right to wear the niqab conflicts with the fair trial rights of the accused, the witness may be required to remove the garment.

The Supreme Court of Canada’s decision on the matter sought to strike a balance between the fair trial rights of the accused and the religious freedom of witnesses, stating that these decisions need to be made on a case-by-case basis by the trial judge. The Court outlined some basic questions that judges should ask themselves when exercising this discretion:

First, would requiring the witness to remove the niqab while testifying interfere with her religious freedom? To rely on s. 2(a) of the Charter, N.S. must show that her wish to wear the niqab while testifying is based on a sincere religious belief…

The second question is: would permitting the witness to wear the niqab while testifying create a serious risk to trial fairness? … Where evidence is uncontested, credibility assessment and cross-examination are not in issue. Therefore, being unable to see the witness’s face will not impinge on trial fairness. If wearing the niqab poses no serious risk to trial fairness, a witness who wishes to wear it for sincere religious reasons may do so…

If both freedom of religion and trial fairness are engaged on the facts, a third question must be answered: is there a way to accommodate both rights and avoid the conflict between them? …
If no accommodation is possible, then a fourth question must be answered: do the salutary effects of requiring the witness to remove the niqab outweigh the deleterious effects of doing so? …

The contentious nature of this issue was demonstrated by the fact that not all Supreme Court Justices would sign on to the compromise solution. Justice LeBel and Rothstein wrote a dissenting opinion holding that the wearing of a niqab by a witness was incompatible with the rights of the accused, while Justice Abella found that requiring a witness to remove her niqab was an unjustifiable limitation on religious freedom.

Decided by the Supreme Court of Canada on December 20, 2012.
Click here for the full text of the decision.

1 Comment

Filed under Section 11(d): Presumption of Innocence, Section 2(a): Freedom of Religion, Section 2: Fundamental Freedoms, Section 7: Life, Liberty, & Security of the Person

One Response to R. v. N.S., 2012 SCC 72

  1. John Adams

    This was a good read.

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