In R. v. N.S., 2012 SCC 72, the Supreme
Court of Canada outlined the framework to be used when determining
whether a witness can be permitted to testify in a criminal
proceeding while wearing a niqab. A niqab is a cloth which covers
the face as a part of sartorial hijab. It is worn by some Muslim
women in public areas where men might see them.
N.S. was called by the Crown as a witness at the preliminary
inquiry in a sexual assault case. N.S. is a Muslim who, for
religious reasons, wished to testify while wearing her niqab. The
preliminary inquiry judge concluded that N.S.'s religious
belief was "not that strong" and ordered her to remove
her niqab. The Ontario Court of Appeal held that if the
witness's freedom of religion and the accused's fair trial
interests were both engaged and could not be reconciled, the
witness may be ordered to remove the niqab depending on the
context. The Court of Appeal returned the matter to the preliminary
inquiry judge, and N.S. appealed.
The Supreme Court declined to follow a strict approach that would
either always require the witness to remove her niqab while
testifying, or one that would never do so. Rather, the majority
concluded that a balancing of interests based on the particular
case before the court was required. A witness who for sincere
religious reasons wishes to wear a niqab while testifying in a
criminal proceeding will be required to remove it if
(a) this is necessary to prevent a serious risk to the fairness
of the trial, because reasonably available alternative measures
will not prevent the risk; and
(b) the salutary effects of requiring her to remove the niqab
outweigh the deleterious effects of doing so.
This framework requires consideration of four questions,
1) would requiring the witness to remove her niqab while
testifying interfere with her religious freedom?
2) would permitting the witness to wear the niqab create a
serious risk to trial fairness?
3) if both freedom of religion and trial fairness are engaged,
is there a way to accommodate both rights and avoid the conflict
between them? and
4) do the salutary effects of requiring the witness to remove
her niqab outweigh the deleterious effects of doing so?
While this was a criminal case, the above framework may have
application in civil litigation matters. Given that an
individual's liberties are not at risk in civil litigation
matters, witnesses will likely be permitted to testify while
wearing a niqab more often in civil than in criminal matters.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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