The Canadian Civil Liberties Association will present arguments before the Ontario Court of Appeal regarding whether a Muslim woman, who is a complainant in a sexual assault case, must remove her niqab in order to testify. A niqab is a garment, often worn for religious reasons, that covers the facial features below the eyes. Although the right to a fair trial is a fundamental right which the CCLA supports vigorously, it does not usually encompass permitting a defendant to prescribe how a witness may be dressed, seated or made comfortable in the context of trial proceedings. Scientific evidence indicates that facial cues are unreliable predictors of credibility – particularly in the context of cultural differences. CCLA will argue that, absent objective threats to fair trial rights, individuals should not be required to choose between following their religious beliefs, and accessing justice.
The right to a fair trial, a fundamental right and essential component of the justice system, is a right which CCLA supports vigorously. Defendants must be able to rigorously test the evidence presented by cross-examining witnesses and calling witnesses and evidence of their own. Ensuring fair trial rights, however, does not normally encompass permitting a defendant to prescribe how a witness may be dressed, seated or made comfortable in the context of trial proceedings.
Generally, lawyers must take the witness in the state in which he or she presents himself or herself to the court: witnesses who do not speak English testify through translators; witnesses who are deaf may use sign language; witnesses who may have minimal or no facial expressions – either by personality, or by physical disability – testify in normal course. The way in which a witness testifies cannot be fully controlled by the cross-examiner. We allow witnesses to sit so that they may be comfortable, even though it often prevents the cross-examiner or trier of fact to see trembling hands or shaking knees. This does not undermine the right to cross-examine and test the evidence such that it leads to an unfair trial; it simply allows the witness to testify in a comfortable courtroom setting, facilitating candid and complete testimony, and ultimately the elicitation of truth.
In the context of this case, ordering a witness to testify in a manner that contravenes her religious belief has serious negative consequences for the elicitation of the truth and for access to justice. People should not have to choose between obeying religious tenets and being heard in court, unless it is absolutely necessary to do so.
Witnesses have testified with a niqab in other contexts. The impact on the ability to assess credibility is minimal because available scientific evidence shows that visual facial cues are very unreliable indicators of credibility. Numerous studies have shown that visual facial cues do not materially help show when a person is lying. In fact, overall witness deportment has been increasingly discredited as a tool to determine whether a witness is telling the truth in the judicial setting. As explained by the Hounourable Justice Gloria Epstein:
The reason deportment should be, and particularly now with social context training is, less and less relevant is that we are learning that there is no “Pinocchio response.” There is nothing of which we are currently aware that people do when they lie and do not do under other circumstances. Apparently a prominent anchorman once said: “I can always tell when someone is lying because they …” In my view, it matters not how one fills in that blank, it will always be wrong. There is no eye movement, no body posture, no stammer, no slip of the tongue that always reveals deception. For demeanour to count, you would have to know the person’s demeanour in a variety of circumstances to determine if a particular mannerism is reliably correlated with lying. This is impossible because witnesses normally are strangers to our courtrooms.
In summary, tests have shown that demeanour has proven to be a very unreliable basis for detecting deception, and, in my experience, judges strenuously resist allowing demeanour to factor into an assessment of credibility.
Cross-examination is about testing the facts, the reliability of the recollection of the witness, and the possible bias, misapprehension or malice that may characterize an individual’s testimony: this does not depend on seeing the nose and mouth of a witness. Overall, the impact on the right to a fair trial is minimal when compared to the impact on access to justice and freedom of religion.
In CCLA’s view, the proper administration of justice should not be aligned solely with the accused’s interests, but must also take into account the values of equality, religious accommodation and access to justice. Without a proven risk to fair trial rights, individuals should not be forced to choose between their religion, and justice. For these reasons it is the CCLA’s position that an order to remove a woman’s niqab while testifying, contrary to her religious beliefs, is not justifiable.
 For a summary of recent scientific literature see Max Minzner, “Detecting lies using demeanor, bias, and context” (2007-2008) 29:6 Cardozo Law Review 2558 at 2565.
 Gloria Epstein, “What factors affect the credibility of a witness”, (Summer 2002) 21:1 Advocates’ Soc. J. 10.