R v NS, 2010 ONCA 670 (13 October 2010)
The Ontario Court of Appeal recently handed down a significant decision regarding the conflict between the constitutional rights of a witness in a criminal proceeding and the constitutional rights of the accused in that same proceeding. The witness, an alleged victim of sexual assault, sought to uphold her right to religious freedom by wearing her veil, or niqab, while appearing as a witness. The accused contended that his right to a fair trial required that he, his counsel and the trier of fact be able to see his accuser's face when she appeared as a witness. The judgment discussed these competing rights and how courts should go about reconciling them.
NS, a female Muslim, alleged that she was repeatedly sexually assaulted by her uncle and cousin from 1982, when she was six years old, until 1987. In September 2008, a preliminary inquiry was established before a judge and jury. At the inquiry, the accused sought an order requiring NS to remove her niqab when testifying. NS, who wore a full body dress and veil, or niqab, in public and in the presence of males who were not direct family members, challenged the order sought. After informal inquiries as to the strength of her religious belief, the judge ultimately decided that NS should testify without wearing a niqab.
On appeal a Superior Court justice granted certiorari, quashing the order and remitted the matter to the preliminary inquiry judge for further determination. Both NS and the accused appealed to the Ontario Court of Appeal.
The Court addressed three key issues:
1. First, did the preliminary inquiry judge have jurisdiction to balance Canadian Charter of Rights and Freedoms values?
The Court held that the preliminary inquiry judge did have the necessary jurisdiction and observed that the balancing of Charter values was an inevitable aspect of regulating the conduct of a trial.
2. Second, did the preliminary inquiry judge err in law in requiring NS to remove her niqab?
In determining this question, the Court looked at the competing rights of the accused and the witness and considered how they might be reconciled.
Section 2(a) of the Canadian Charter, which protects religious freedom, includes the protection of religious beliefs and conduct that is motivated by, or manifested from, those religious beliefs. In order to claim the benefit of the protection, the Court stated that a person must establish, firstly, a sincere belief in a practice annexed to his or her religious beliefs and, secondly, an interference with those practices by the impugned measure. The relevant inquiry focuses on the person's beliefs and conduct at the time of the alleged interference with his or her religious freedom.
The Court required the witness to establish that her niqab was a legitimate exercise of her religious freedoms. It stated that where this is shown to be the case, the accused must then show that her exercise of this right would compromise his right to a fair trial. Sections 7 and 11(d) of the Canadian Charter protect the right to a fair trial, which includes the right to cross-examine witnesses as part of the right to make full answer and defence at trial. The accused argued that covering the face of a witness can impede cross-examination by a) limiting the trier of fact's ability to assess the demeanour of the witness, and b) denying the cross-examiner an insight into valuable non-verbal communication from the witness. The Court accepted that such interference may deny an accused fairness at the trial, although it acknowledged that the process must be considered as a whole and some limits on cross-examination will not necessarily compromise trial fairness.
In attempting to reconcile the rights of the witness and the potential interference with the accused's ability to cross-examine the witness, the Court noted that context is important. For example, where the witness is central to the prosecution's case and his or her credibility is virtually determinative of the outcome, there is a stronger argument for a full view of that person's face during cross-examination. Further, Courts must also consider other constitutional values and societal interests that may be affected by the judge's decision on whether a witness should be required to remove her niqab.
The Court also observed that reconciliation of these competing interests requires acknowledgement and consideration of each person's rights and interests. Indeed, the Court noted that recognition, itself, ‘tends to validate that person's claim, even if the ultimate decision does not give that person everything he or she wanted’ . The Court also referred to the importance of seeking 'constructive compromises' which may ‘mitigate any potential harm to both the witness' right to exercise her religious beliefs and the accused's right to fully defend himself’ . For example, it suggested that it may be appropriate for the court to be closed to all males other than the accused and his counsel; or a witness could be asked to wear a style of niqab that least interferes with the trier of facts' ability to assess her demeanour.
Having explained the need for such a formal approach, the Court found that the preliminary inquiry judge did not conduct a proper inquiry into NS' religious freedom claim and his order was quashed.
3. Finally, the Court considered whether it could make a definitive order on the matter.
It maintained that a determination of whether NS should be allowed to testify wearing her niqab could only be made after a proper inquiry, as outlined above. Accordingly, it remitted that inquiry to the preliminary inquiry judge.
Despite the decision to remit the inquiry, the Court made some significant closing comments that would likely influence any ultimate decision on the issue. Firstly, it proposed that an objection to the wearing of the niqab, ‘based exclusively on the argument that facial demeanour was important to assessing credibility or assist the cross-examination’, would likely fail . However it also suggested that if a judge found, in all of the circumstances, that the wearing of the niqab would infringe the accused's right to make full answer and defence, then that right must prevail over the witness' religious freedoms and the witness must be ordered to remove the niqab (subject, of course, to any order available that would reduce the impact on the witness). This is a significant statement in the balancing of constitutional values – though decisions will turn, ultimately, on the facts of each case.
Relevance to the Victorian Charter
In Victoria, the right to freedom of thought, conscience, religion and belief is protected in s 14 of the Victorian Charter in substantially the same way as s 2(a)-(b) of the Canadian Charter. Similarly, the right to a fair trial is protected in ss 21, 24(1), 25(1), and 25(2)(g) of the Victorian Charter in substantially the same way to ss 7 and 11(d) of the Canadian Charter. Unlike the Canadian Charter, the Victorian Charter also expressly protects a person's right to examine witnesses who give evidence against him or her, unless otherwise provided for by law. Given the similarities between the protections set out in both Charters, the case provides compelling guidance as to an appropriate approach that may taken by courts in Victoria when faced with a similar situation.
The decision is at www.canlii.org/en/on/onca/doc/2010/2010onca670/2010onca670.html.
Marcus King is a Law Graduate with Allens Arthur Robinson