Supreme Court of Canada Offers Test to Permit Removal of Testifying Witness's Niqab (Read the Dissent)

When should a niqab-wearing witness be forced by the court to remove her niqab when testifying? Don't have time to the read the full decision? Read the summary below; and then--whatever your position--read the dissent--it's masterful judicial writing.

You can read the full (and rather short) decision here, courtesy of CanLII. In short, a niqab can be removed; decision offers a very mushy, skeleton test; remands back to preliminary court to do the test.

I think the most compelling writing must go to the dissent by Rosalie Silberman Abella, which blows serious holes in the "demeanor ideal" be pushed by the majority, and shows a potential and very serious ill-effect of the majority's rule: a sexual assault victim may "be forced to choose between laying a complaint and wearing a niqab, which may be no meaningful choice at all."

The dissent also uses the most effective (or, depending on your position, manipulative) rhetorical tools to convey its message, not an unusual advantage when writing the losing side.

Highlights--majority holding:

• Four-inquiry, factor test that goes against having a "clear rule" in favor or removing or not removing a witness's niqab: 
• (1) does removal "interfere with her religious freedom"? 
• (2) permitting niqab "create a serious risk to trail fairness" (i.e. uncontested testimony doesn't require removal)?
• (3) alternative means (totally punts this to the trial judge to figure out)
• (4) "do the salutary effects of requiring the witness to remove the niqab outweigh the deleterious effects of doing so?" [The key inquiry]

• Test for inquiry (4):
• "The judge must assess all these factors ["importance of religious practice to the witness," "state interference" with that practice, "actual situation" in court, "societal harms," and interest of the accused and nature of the evidence (yeah that last one blurs with (3)).] and determine whether the salutary effects of requiring the witness to remove the niqab outweigh the deleterious effects of doing so."

Highlights--concurrence (agrees with test, but makes clear preference for a "clear rule" that niqab may be removed):

• From this broader constitutional perspective, the trial becomes an act of communication with the public at large. The public must be able to see how the justice system works. Wearing a niqab in the courtroom does not facilitate acts of communication. Rather, it shields the witness from interacting fully with the parties, their counsel, the judge and the jurors. Wearing the niqab is also incompatible with the rights of the accused, the nature of the Canadian public adversarial trials, and with the constitutional values of openness and religious neutrality in contemporary democratic, but diverse, Canada. Nor should wearing a niqab be dependent on the nature or importance of the evidence, as this would only add a new layer of complexity to the trial process. A clear rule that niqabs may not be worn at any stage of the criminal trial would be consistent with the principle of public openness of the trial process and would safeguard the integrity of that process as one of communication.

Highlights--dissent:

• Rule: "Unless the witness’s face is directly relevant to the case, such as where her identity is in issue, she should not be required to remove her niqab."
• All of these are departures [permitting stroke victims, use of interpreter] to testify, from the demeanour ideal, yet none has ever been held to disqualify the witness from giving his or her evidence on the grounds that the accused’s fair trial rights are impaired. Witnesses who wear niqabs should not be treated any differently. 
• "A witness who is not permitted to wear her niqab while testifying is prevented from being able to act in accordance with her religious beliefs. This has the effect of forcing her to choose between her religious beliefs and her ability to participate in the justice system. As a result, complainants who sincerely believe that their religion requires them to wear the niqab in public, may choose not to bring charges for crimes they allege have been committed against them, or, more generally, may resist being a witness in someone else’s trial. Where the witness is the accused, she will be unable to give evidence in her own defence. "
• "The majority’s conclusion that being unable to see the witness’s face is acceptable from a fair trial perspective if the evidence is 'uncontested', essentially means that sexual assault complainants, whose evidence will inevitably be contested, will be forced to choose between laying a complaint and wearing a niqab, which may be no meaningful choice at all.