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, namely:

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.

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