In a turn of events that sheds some light on the slow process of
modern justice, Judge Weisman of the Ontario Court of Justice
revisited the question of whether a criminal complainant, known
only as N.S., would be allowed to wear a niqab while giving
testimony during a preliminary inquiry. Judge Weisman's initial
ruling on the matter was given on October 16, 2008. This decision
was reviewed three times, culminating in a ruling by the Supreme
Court of Canada that laid down further guidance as to how the
Charter issues in this case ought to be resolved. For a more
in-depth history of the case,
please refer to my colleague Chris Dormer's blog article on the
In an unreported decision revisiting his ruling
from 5 years ago, Judge Weisman implemented the SCC's
requirements to guide his decision on whether a niqab could be worn
by N.S.; nevertheless his conclusion was the same as 5 years ago.
He determined that, while N.S.'s religious belief is sincerely
held, the potential for a wrongful conviction was too great a risk,
due to her central role in the Crown's case. As a result, Judge
Weisman ordered that N.S. could not testify unless she removed the
The first impression of this result is that the process of
appealing Judge Weisman's earlier decision was a waste of time
and public money. Criticism of the SCC's decision in this case
included that it was too vague and would result in further appeals.
However, it is clear that a greater level of certainty with respect
to the legal test for the balancing of conflicting Charter rights
has been achieved through this case. By continually expanding the
jurisprudence on this matter, hopefully the cost of future appeals
will be forestalled.
Finally, the applicability of this test in the context of
non-criminal litigation is still untested. The role of cross
examination in the civil context is just as pivotal as in the
criminal context, although the stakes are generally considered less
critical. We will have to wait until a case emerges that pits the
Charter rights of a veiled witness against another party who cannot
invoke the danger of a wrongful conviction before we see how far
the logic from R v N.S. can be taken.
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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In Irwin v. Alberta Veterinary Medical Association, 2015 ABCA 396, the Alberta Court of Appeal found that the "ABVMA" failed to afford procedural fairness to a veterinarian undergoing an incapacity assessment.
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