Opinions and Current Issues Blog

Saba Ahmad is a Litigator working on environmental, administrative and commercial matters in Toronto. Learn more at www.sabaahmad.com

#SCC hedged in its decision on Niqab

Last month, the Supreme Court of Canada ruled veiled Muslim women may sometimes be required to remove the niqab in order to testify in court.  The case arose from allegations of molestation by a niqabi woman (identified as “N.S.”) against her uncle and cousin.

At a preliminary inquiry, a trial judge ordered N.S. to remove her niqab before testifying.  N.S. brought a motion, which ultimately reached the country’s top court.

The SCC’s decision avoids any explicit, contentious pronouncements.  On the surface, the decision demonstrates Canada’s tolerance for religious expression, while leaving it to the trial judge to weigh the importance of competing rights at stake, in light of the facts.

However, as an unfortunate consequence of the ruling, decision-makers will be deprived of relevant, critical and available evidence in cases where a woman refuses to unveil.  It means rapists who target niqabis might avoid prosecution.

The Law

Canadian jurisprudence is reasonably clear on the rights at stake for the niqabi.  Religious beliefs are important.  We do not intrude on religious practices lightly.  Under section 2(a) of the Charter of Rights and Freedoms, reasonable accommodation is required when religious practice is the result of a sincerely held religious belief.

The competing rights of defendants are less clear in this situation.  In the United States, the 6th amendment to the Constitution provides a criminal defendant shall have the right to confront the witnesses against him.  We have no similar constitutional clause in Canada, but the right to see the face of a witness is considered part of the right to a fair trial.

In addition to the rights of a witness and the accused, courts have rules about the admissibility of evidence.  In very general terms, relevant evidence is admissible unless it is prejudicial.  In other words, we do not admit evidence where its probative value is outweighed by fairness concerns.  This basic principle guides the quest for truth.

The Decision’s Contribution to the Law

The SCC judgment does not shed much light on the nature of a defendant’s right to face his accuser and does not satisfyingly explain how a niqab might interfere with that right.  Given the importance of the issue, the Court ought to have gone further to discuss the value of live testimony in general and why depriving some victims of rape the opportunity to testify might be necessary to protect the rights of the accused.

The Supreme Court canvassed some reasons why face-to-face confrontation can be important for a fair trial.  For example, a move from calm expression to an excited gabble – or a sudden failure to make eye contact – can be revealing, as noted in paragraph 26 of the decision. Clearly, in some situations, demeanor helps the trier of fact to assess credibility.

While full visibility of the face is helpful, the Court did not rule that seeing a person’s face is critical to evaluating testimony.  The Court did not discuss basic principles of admissibility and how a niqab might render live testimony unfairly prejudicial, confusing, or unreliable.

The Court provides no analysis to explain why evidence of reduced quality should be barred in some situations and not others. The majority proceeds on the assumption that a court is capable of securing higher quality evidence by an exclusionary rule.  The majority ignores the possibility that N.S. may refuse to uncover her face, compelling the result that her alleged rapists will go unprosecuted.

This Muslim Woman Lawyer’s Perspective

Many factors diminish the quality of evidence available at trial.  Witnesses might have memory problems or medical issues.  They might be professionally trained actors.  Some witnesses are just naturally likeable, sympathetic, or well-coached.  Some may be confronted by skilled cross-examiners, while others are not.

In all these cases, we accept compromises of the fact-finder’s ability to weigh and interpret live testimony.

We take witnesses as they are.  We do not require hirsute male witnesses to shave their beards.  We do not require non-English speakers to learn English.

A niqabi should be treated in like fashion.  Once a judge is persuaded that her niqab is not merely situationally convenient, it should be permitted.

The issue is not very much about a niqabi’s rights.  A witness is just a witness.  There is no way to compel anyone to testify and there is no way to compel N.S. to remove the niqab.

Rules of admissibility are supposed to be about fairness to the accused and the quest for truth.  Closing the door to N.S. does not advance the quest for truth because live evidence from the victim, with her face exposed, is simply not available when the victim is a niqabi.

The correct question to have asked is whether the reduced quality of live evidence due to a niqab interferes with the quest for truth in a manner that is unduly prejudicial to the accused.

I see no unfair prejudice to N.S.’s alleged molesters by permitting her to testify with the niqab, because:

  • A typical niqab does not shield all expression from evaluation and judgment.  Hesitations, gabbles, excitement, and a failure to make eye contact are all evident.
  • While the niqab interferes with the quality of testimony, that interference does not begin with the cross-examination, to the prejudice of the defence.  It begins with the examination in chief, to the prejudice of the Crown.  With her face partially obscured, N.S. may be less likely to attract sympathy.  Her testimony will carry less weight in the first instance, diluting the entirety of her evidence.  The niqab does not, however, make the witness’ testimony unreliable.

The reduced evidentiary value of a niqabi’s testimony is not necessarily unfair to an accused.  It may even make the prosecution’s case harder to make.

With respect to basic principles of admissibility, there are no grounds to exclude a niqabi’s evidence, any more than there is to exclude evidence from bearded men or non-native English speakers.

Proper instruction could assist a jury to weigh the evidence of a witness whose face is partially obscured.

We ought not close courtroom doors to Muslim women who veil.  If we do, it only makes it easier to assault niqabi women, since the victims might not reveal their faces to complain about it.

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This entry was posted on January 24, 2013 by in Uncategorized.

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