The Supreme Court has rendered its decision in the case of R. v. N.S., which considered whether a sexual assault complainant could testify in Court while wearing a niqab for religious reasons. One of the accused in the case argued that the niqab could not be worn as this would affect the ability of his lawyer to effectively cross-examine the complainant and impair the ability of the judge (and/or jury) to assess her credibility by observing her demeanour.
The CCLA intervened in the case to argue that freedom of religion must be respected and that, where there is a conflict between this freedom and an accused’s right to a fair trial, these rights must be reconciled. However, CCLA’s submissions noted our ongoing concerns about the use and value of demeanour as an indicator of credibility and stated that allowing a witness to testify in accordance with her religious convictions promotes trial fairness.
A majority of the Supreme Court has agreed that the religious rights of the complainant must be reconciled with the accused’s right to a fair trial. The decision provides a number of considerations that will be relevant to determining how this reconciliation can be achieved on a case-by-case basis, including the nature of the evidence the witness is expected to give and how crucial it is to the case. While we are pleased that the majority of the Court recognized the importance of reconciling rights, it remains to be seen how the decision will be applied in practice. It is likely that there will be very few cases where this issue will arise, but we are concerned that, when it does, individuals may be forced to choose between accessing the justice system and staying true to their religious convictions.
The dissenting reasons of Justice Abella provide greater protection for freedom of religion, recognizing that while it is easier to assess demeanour if a witness’ face is not covered, there are many other indicators of demeanour that are not affected by the niqab. Absent a case where a witness’ face is at issue in the case (for example, when there is a question of identity), Justice Abella would not require a witness to remove her niqab in order to testify.