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. 

Canada's Parliament Returns From Summer Break: Previewing the 2012 Fall Session

CUSLINexus rounds up assessments of Canada's upcoming fall 2012 parliamentary session.

5 Issues That Will Dominate the Fall Session of Parliament, Kieron Lang, CTV News. CTV News outlines and even offers a video segment on the key issues of Canada’s Fall Parliamentary Session. In short:

(1) Trade. EU and Trans-Pacific Partnership deals will get high priority, along with the government's review of a state-owned Chinese company bid to buy Canadian energy producer Nexen).

(2) Quebec. Will the PQ’s return to power in Quebec prompt another referendum. If so, they’ll be headaches in Quebec City and Ottawa.

(3) Government Contracts. There’s been criticism of how the government is handling non-competitive government contracts its administrating.

(4) Courts.  As many as 4 Canadian Supreme Court justices may step down before Harper’s term is up—talk about legacy-making stuff.

(5) NDP.  Last year, the NDP wowed the Canadian political world with a 2nd-place finish. Then, tragically, its leader—Jack Layton died of prostate cancer. Now the NDP’s new leader, Thomas Mulcair has to define himself and the party that needs to show the Canadian public it can take the reigns of Canada’s government.

 
Hoping for a Changed Tone in Parliament? Don’t Hope Your Breath,  Michael Den Tandt, Times Colonist and The Province. Writing for two leading Vancouver publications, Den Tandt previews the fall session—finding it will be much like the last—and again emphasizes trade and Quebec, but highlights the critical role Ontarian voters will play in the 2015 election:

NDP Leader Tom Mulcair has as yet shown no inclination to back away from his “Dutch disease” theme, which holds that the high Canadian dollar, driven by booming resource revenue, is harming Canadian manufacturing, to the benefit mainly of Alberta and the detriment mainly of the rest of Canada.

That ensures the critical political battleground this fall, and likely for the next three years until election 2015, will be economic, with the NDP and Conservatives vying primarily for hearts and minds in Ontario, in particular in the industrial heartland of the southwest, where most Ontarians live and where the economy still rests on automobile manufacturing.

The Conservatives and New Democrats will co-operate, to the extent that both will seek to sideline the third-place Liberals. The Grits will seek to capitalize on their leadership race, which concludes next spring, to maintain visibility. To that end, look for a Liberal leadership candidate or candidates to emerge with a platform that is aggressively conservative economically and just as aggressively progressive on social issues. All eyes now are on MPs Justin Trudeau and Marc Garneau, who are expected to run but have not yet publicly announced their intentions.

Canada’s MPs Set to Return, More Polarized than Ever, Mark Kennedy, Calgary Herald, seconds the polarization while suspecting the Conservatives will push hard to deliver on their platform:

Moreover, emboldened by the majority power they secured in the May 2011 election, the Tories are intent on using that clout for the remaining three years of their mandate to press ahead with an agenda that includes billions of dollars in government cuts, diminished federal environmental oversight on private-sector energy projects, and cuts to the public pension system for future generations of seniors. All have sparked controversy.

But Harper is not backing down, even as public opinion polls showing the Tories’ popularity has dropped, leaving them in a tie with the NDP.

“We’re putting our foot on the gas,” the prime minister said in early July, explaining that he was sticking with the same cabinet ministers because he wants them to continue with the Tory agenda this autumn.

“I’ve told officials in Ottawa the majority is not time to rest.’’

“I think that one step at a time, I think we’re moving the country in the right direction,’’ said Harper.

A Rough Guide to the Fall Sitting, Aaron Wherry, Macleans, gives us a concise, tongue-in-cheek run-down. One aspect worth mentioning, some other debates that will be gripping Parliament:

Stephen Woodworth’s motion on the legal definition of a human being is due to be debated this month. Conservative MP Rob Clarke wants to overhaul the Indian Act. Conservative MP Russ Hiebert wants to change the rules for financial disclosure by unions. And Pierre Poilievre has mused of making it possible to opt out of paying union dues.

Fallout From Cuts Follow MPs Back to Parliament, Jennifer Ditchburn, Chronicle Herald. This Halifax-based publication focuses on the local--emphasizing constituent concerns over Conservative budget cuts:

The Conservative caucus meets for the first time Monday since Parliament packed up for the summer, but the catching-up chatter won’t all be about cottages and barbecues.

Many MPs have had to cope all season with the fallout from last spring’s budget cuts, some of which hit local services in areas such as train travel, the coast guard and interior waterways.

The lobbying has been going on hard in some cases to try and mitigate the impact of the decisions on constituents.

Canada’s Decentralized Securities Regulation Continues—What Can the United States Gain From Canada’s Unique Experience?

by Keith Edmund White

Canada was always unique in how it approached regulating its securities market—being the world's only major economy to adopt a provincial approach to securities regulation.  And now it stands to become an even greater outlier: with the Canadian Supreme Court’s unanimous decision last December finding a proposal to create a comprehensive federal regulator unconstitutional (Reference re Securities Act).  But first, how could the Canadian Supreme Court rule that securities regulation doesn't fall under the federal government's authority?  Well, in short, it didn’t—instead it stated knocked down a comprehensive federal opt-in regulator; yet, it did point out federal areas of regulation.  From the Financial Post:

Power has shifted with the unanimous decision of the court, which establishes that oversight for the investment industry fits squarely within the “property and civil rights” powers that were assigned to the provinces by the Constitution Act of 1867.

But some industry groups hailed the decision as progress, noting that the Supreme Court’s acknowledgment of federal jurisdiction over such matters as systemic risk pushes the idea of some sort of national regulation further along than in the more than 40 years its has been considered.

Naturally, the decision has not killed plans for federal securities regulation—but it has sure made the project much more complicated.  Officially, the Conservative government in Canada has shelved plans for a federal regulator, but just last month Canada's Finance Minister--Jim Flaherty--made clear he hasn't given up on the federal project.   

(Side-note:  The blog concise but thorough summary can be found in this Dec. Financial Post blog post by Jeffrey MacIntosh—though it may be a touch to giddy about the federal government’s Supreme Court slap-down.)

I’ll be exploring this topic in the coming months.  But, for a quite primer on the differences between America and Canada’s respective approaches to securities regulation check out Heather Zordel’s 2010 article Unconventional Wisdom and the Canadian Securities Market.

Selecting The Supremes: What America Can Learn from Canada’s Approach to Appointing Justices to the Canadian Supreme Court

By Keith Edmund White

Last week highlighted the dramatically different approaches Canada and the United States use to appoint members to their highest courts. For only the second time, Canada witnessed the use of a formal Advisory Committee to question the Prime Minister’s Supreme Court appointments. The term ‘advisory’ in the committee’s title exposes an interesting feature of Canada’s constitutional process: “The MPs have no power to confirm or deny the prime minister’s appointments.”

In short, and this may be shocking to American readers, nominees to the Canadian Supreme Court have only one practical hurdle to clear: getting the Prime Minister’s approval. Canada doesn’t have the pleasure of watching four-day long interrogations of Supreme Court nominees by the U.S. Senate (in fact, the Advisory Committee was limited to three hours of questioning). Nor does Canada subject their Prime Minister to the dubious distinction of being ‘Borked’.

And this difference isn’t just a fun institutional ‘quirk’ to use as fodder for small-talk. The issue of how judges are appointed to the highest courts of Canada and America presents an intriguing, if not troubling, question: how should democratic nations select their top judges, keeping in mind that the judiciary (1) can yield immense political power, but (2) often derives its credibility from being considered above politics (or, stated less positively, being an inherently undemocratic institution)?

But, before reviewing what happened at last Wednesday’s committee hearing or comparing Canada and America’s appointment processes, providing an overview of Canada’s approach to Supreme Court appointment may prove useful to American readers.

Technically, the Governor General of Canada—not the Prime Minister—is vested with the power to appoint members of the Supreme Court, after consultation with the Queen’s Privy Council for Canada (the non-partisan bureaucratic support staff for Canada’s federal cabinet and the prime minister). But, in practice, this means that the Prime Minister’s cabinet—which, in essence, means the Prime Minister’s support—selects and appoints justices to the Canadian Supreme Court.

Also, there are two rules of appointment to the Canadian Supreme Court concerning geographic representation, one formal and one informal, which may surprise American readers. First, reflecting Quebec unique constitutional status, the Supreme Court Act—the 1875 parliamentary act that created and now governs the Canadian Supreme Court—mandates that the Canadian Supreme Court have at least three justices from Quebec. Second, there remains a convention that, out of the remaining six justices, three justices be appointed from Ontario, two justices from Western Canada, and one justice from the Atlantic provinces. (While the two new justices will return the Court to this ‘conventional’ ratio, the Court currently made up of four judges from Quebec, two from Ontario, two from Canada’s Western provinces—Manitoba and British Columbia, and one from Nova Scotia).

But, this background aside, what transpired at last Wednesday’s Advisory Committee hearing? Well, the Globe and Mail predicted that the two appointees—Mr. Justice Michael Moldaver and Madam Justice Judge Andromache Karakatsanis (both currently serving on Ontario’s Court of Appeal)—would face “a battery of questions”:

Supreme Court of Canada nominees Mr. Justice Michael Moldaver and Madam Justice Judge Andromache Karakatsanis have just one day left to prep for a nerve-wracking parliamentary hearing where they will field a battery of questions from MPs. 

However, the chances are slim that the hearing will develop into a free-wheeling session in which the personal lives and views of the nominees are flushed into the open. Instead, it promises to be a tightly scripted affair where MPs largely avoid touching on hot-button social, legal or political issues. 

“I think there will be fair questioning, but I don’t think it will be adversarial questioning,” said Liberal MP Irwin Cotler, a member of the Supreme Court search committee that prepared a list of six finalists for Prime Minister Stephen Harper to select from.

Yet, Emmett Macfarlane, writing for Macleans, was unimpressed with the committee’s “vacuous” questioning:

For advocates of greater transparency and democratic accountability in the Supreme Court appointments process, Wednesday afternoon’s ad hoc committee hearing—which gave members of Parliament an opportunity to interview the prime minister’s two nominees—was rather difficult to watch. 

The questions ranged from vacuous puffery, such as asking Justices Andromache Karakatsanis and Michael Moldaver to name their personal heroes, to glib and disrespectful challenges to Moldaver regarding his inability to speak French. The broader question of whether Supreme Court justices ought to have proficiency in both of Canada’s official languages is most definitely a legitimate one. And it was certainly not out of bounds for members to ask Justice Moldaver about the importance of language capacity and his intentions to learn French. (I’ll set aside for now the debate about whether we should make bilingualism a prerequisite for appointment to the Court). 

But by the time NDP MP Joe Comartin was using his second round of questions to ask Moldaver for the fifth or sixth time about the language issue, it had become painfully obvious that the hearing had nothing to do with learning about the judges or the role of the Court and everything to do with the MPs playing politics. Comartin had already asked a question in French to test Moldaver in a manner that could only have been meant to embarrass him. Not only was it rude, it was also pointless; Moldaver had already expressed regret and pledged to do his best to learn French as quickly as possible. It was as if Comartin hoped that his endless pestering would force Moldaver to quit, which is bizarre enough considering Comartin was on the committee that unanimously approved the short-list from which Stephen Harper named the two judges. 

That sideshow notwithstanding, the hearing offered little of substance from which to learn anything relevant about the judges’ views on their role as justices or the role of the Supreme Court. It was a stark contrast from the first time a Supreme Court nominee was publicly interviewed in Parliament. The 2006 hearing where Justice Marshall Rothstein answered an array of questions on his views about the Court and its function had its share of fluff, but was truly edifying by comparison.

Yet, this criticism isn’t unique to the Canadian process. This was the Washington Time’s take on Justice Elena Kagan’s (then) upcoming confirmation hearings:

The most important question members of the Senate Judiciary Committee should ask Supreme Court nominee Elena Kagan is, “Who do you think you are kidding?” 

The hearings process for high court nominees has become ritualized to the point that it is almost useless. Nominees are extensively coached to avoid voicing a real opinion. There is no intellectual give and take. Spontaneity is largely absent. Anyone who can reasonably keep his cool and regurgitate platitudes for a few hours can enjoy a lifetime appointment to the most important judicial body in the land.

But two important features in Canada’s selection process should be pointed out: (1) the five-person search committee did not only question the Prime Minister’s two Supreme Court choices, but also cut the Prime Minster’s list of 12 semi-finalists to 6 finalists, and (2) the committee included two members from Canada’s opposition parties.

As reported by the Globe and Mail, “[h]aving Liberal and NDP members on the search committee gave them a say in the process as well as a vested interest in the result, [Liberal committee member] Mr. Cotler acknowledged. ‘At the end of the day, the two people were also recommended by us.’”

These differences reflect a boarder, constitutional divergence between America and Canada’s Supreme Court appointment processes. As a result of its unique constitutional history, appointments to the Canadian Supreme Court, in essence, overtly political: the Prime Minister can install anyone to the Canadian Supreme Court who is constitutionally eligible. But this high level of discretion has pressured Canadian Prime Ministers to craft practices that afford their Supreme Court picks greater political legitimacy, and the freedom to experiment with different approaches to gain such legitimacy.

The United States, by contrast, embodies a rigid process of ensuring Supreme Court nominees earn political legitimacy: U.S. Senate confirmation. But this institutional mechanism has seemingly led the United States in a hyper-politicized process that has little hope of changing. (But does, at least to some, still offers a ‘teachable moment’ to American citizens).

Admittedly, both processes are only as good as the political actors make them. And, while Canada’s constitution gives the Prime Minister the power to look for innovative solutions to the Canadian Supreme Court’s democratic deficient, the Prime Minister’s ultimate control over the process could make Canada “look more like a dictatorship.” For example, in 2008 Prime Minister Harper, then with only a minority government, bypassed Parliament completely when appointing Justice Thomas Albert Cromwell to the Canadian Supreme Court. But, it should be noted that Prime Minister Harper (1) chose a justice with board support, (2) was able to quickly fill an important vacancy, and (3) consulted with then Liberal-opposition leader Michael Ignatieff.

And, at the end of the day, it seems Canada and America’s very different approaches to selecting Supreme Court justices bring the same result: hearings that offer little substance, and results dictated by the Prime Minister or President’s political capital.

Perhaps Canada’s current approach to appointing Supreme Court justices needs improvement. Yet, when the next vacancy on the U.S. Supreme Court occurs, American politicians, policymakers, and voters should look to Canada’s recent experiences with judicial appointment. Not only will they perhaps discover new ways to improve the America’s appointment process, they may also come to appreciate the benefits of Canada’s constitutional flexibility.