Peeling Back the Court’s Decision in R v NS

On December 20^th, 2012, the Supreme Court of Canada released its decision in R v NS, 2012 SCC 72 [NS]. As Kirk Makin stated in an article written for the Globe & Mail:

“The key question for the judges was: Can religious ritual and observance trump the right of defendants to a fair trial? While the court has wrestled with religious protections in the past, rarely has a case spawned such a violent clash of principles.”

No matter what side of the debate one falls on, it has become clear that the practice of veiling tests the limits of the law’s toleration of religion freedom. This case activates a variety of tensions and I will focus on three key issues: religious freedom, sexual assault, and the significance of demeanor evidence as a component of the accused’s right to a fair trial.

This case came before the courts in 2007 when NS alleged that she had been sexually assaulted by her uncle and cousin when she was a child. During the preliminary inquiry, NS’s request to testify while wearing her niqab was refused. The issue was framed as a conflict of rights: NS asserted her freedom of religion right to wear the niqab while both of the accused claimed that allowing NS to do so would infringe their rights to a fair trial. The decision of the preliminary inquiry judge was appealed to the Ontario Court of Appeal, and again to the Supreme Court of Canada. The Supreme Court’s decision was split into three groups of judges, all of whom would have returned the case to the preliminary inquiry judge with different directions regarding the permissibility of allowing NS to wear her niqab while testifying. Chief Justice McLachlin, writing on behalf of the majority laid out the framework that a court should consider when determining whether a witness should be allowed to testify wearing a niqab. Justice Lebel and Justice Fish dissented and proposed a clear rule whereby a witness should never be allowed to testify wearing a niqab. Finally, Justice Abella also dissented and provided a direction to the trial judge that NS be allowed to wear her niqab throughout the preliminary inquiry and any trial that followed.

Turning to the majority’s decision, as mentioned above, Chief Justice McLachlin articulated a framework that courts should apply to determine whether a witness should be allowed to wear the niqab while testifying. The proposed framework consists of four questions (para 9):

1. Would requiring the witness to remove the niqab while testifying interfere with her religious freedom?
2. Would permitting the witness to wear the niqab while testifying create a serious risk to trial fairness?
3. Is there a way to accommodate both rights and avoid the conflict between them?
4. If no accommodation is possible, do the salutary effects of requiring the witness to remove the niqab outweigh the deleterious effects of doing so?

Question 1: Interference with Religious Beliefs:

At this stage of the analysis, the question is whether the witness sincerely believes that her religion requires her to wear a niqab. The preliminary inquiry judge concluded that NS’s belief was not strong enough because she removed her niqab to have her driver’s license photo taken and because she stated she would remove her niqab for a security check. The majority recognizes that the sincerity of a belief is not precluded merely because a witness has “lapsed” in her beliefs at certain times or because there are certain exceptions to the practice. Chief Justice McLachlin states (para 13):

“Departures from the practice in the past should also be viewed in context; a witness should not be denied the right to raise s.2(a) merely because she has made what seemed to be a compromise in the past in order to participate in some facet of society.”

Because the preliminary inquiry judge focused on the “strength” of NS’s belief, and not on sincerity, the majority concludes that the matter must be returned to the judge. Nevertheless, the majority goes on to explain the application of the remaining three questions in the framework.

Question 2: Serious Risk to Trial Fairness:

The accused’s right to a fair trial has several core components, but the two key components activated by this case are effective cross examination and assessment of credibility. Trial fairness is (arguably) at issue here because the niqab would prevent the accused from seeing the witness’s face, and as such, the accused would not have access to demeanor evidence which is (arguably) integral to cross-examination. Trial fairness could therefore be interfered with in two ways: first by preventing effective cross-examination and second, by interfering with the ability of the trier of fact to assess NS’s credibility.

Question 3: Accommodation of Both Rights to Avoid the Conflict Between Them

To answer this question, the parties must place evidence before the judge outlining possible options for accommodation—a compromise that respects both the witness’s freedom of religion and the accused’s right to a fair trial. If no accommodation is possible, then the judge will move on to the final question.

Question 4: Salutary Effects Versus Deleterious Effects

It seems that the heavy analytical lifting is done at this stage of the test, which mimics the proportionality analysis used under section 1 of the Oake’s Test. Under this question, a court must determine whether the salutary effects of requiring the witness to remove the niqab outweigh the deleterious effects of allowing her to wear it. While a judge must only focus on “sincerity” of belief rather than “strength of belief” in answering the first question, in the final stage, however, NS’s strength of belief becomes relevant.

Problems with the Court’s Approach:

Infallibility of Demeanor Evidence

Both the decision of the majority, and Justice Lebel’s dissent, approach the effectiveness and accuracy of demeanor evidence as if it provided infallible access to “The Truth.”  Although Chief Justice McLachlin repeatedly emphasizes the lack of evidence regarding the effectiveness of demeanor evidence, she concludes that “In the absence of evidence showing that beliefs about demeanor evidence are unsubstantiated ‘myths’, it would be a radical step to excise the importance of demeanor evidence from the law” (para 49). The issue here, however, is not about whether demeanor evidence is important—both sides of the debate might agree that it is. The issue is whether it is important enough to limit the protection of religious freedom that would otherwise be granted to a woman who wears a niqab. As Justice Abella states:

“I concede without reservation that seeing more of a witness’ facial expressions is better than seeing less. What I am not willing to concede, however, is that seeing less is so impairing of a judge’s or an accused’s ability to assess the credibility of a witness, that the complainant will have to choose between her religious rights and her ability to bear witness against an alleged aggressor. This also has the potential to impair the rights of an accused, who may find herself having to choose between her religious rights and giving evidence in her own defence. The court system has many examples of accepting evidence from witnesses who are unable to testify under ideal circumstances because of visual, oral, or aural impediments. I am unable to see why witnesses who wear niqabs should be treated any differently.”

While Justice Abella also agrees that the first stage of the analysis should look at whether the individual’s belief is sincerely held, she goes on to state that where both freedom of religion and the accused’s right to a fair trial are engaged, there is no realistic possibility for accommodation. She believes the real question is whether the impact of not having full access to the usual “demeanor assessment package” can be said to so materially harm trial fairness that the religious right must yield. She considers a variety of situations where the accused does not have access to demeanor evidence and yet the right to a fair trial is not impeded—the most obvious example would be hearsay evidence where a statement is put into play by someone other than the declarant. In the case of hearsay evidence, the declarant is unavailable to be cross-examined; in the case of a witness who testifies wearing a niqab, she is available for cross-examination. One would think that hearsay evidence would pose more problems for the effectiveness of cross-examination since the accused does not have access to any demeanor evidence from the person who made the statement. In other words, if hearsay evidence is admissible, it would seem to suggest that demeanor evidence—while important—is not a necessary condition to satisfy the accused’s right to a fair trial.

Taking my cue from Justice Abella’s dissent, while I do not want to suggest that demeanor evidence is entirely unimportant, I also believe that the majority has overemphasized how crucial it is as a pathway to “The Truth” and as a tool for effective cross-examination. Judges, juries, and lawyers are not as equipped as we’d like to think in assessing the meaning behind non-verbal cues. The Court seems to herald non-verbal cues as integral to effective cross-examination on the assumption that the person interpreting those cues has access to the true meaning behind a person’s raised eyebrow or furrowed brow. These sorts of non-verbal cues may mean something, but we may be inept at accurately determining their meaning. Furthermore, as Justice Abella states, the accused is not deprived of all demeanor evidence when faced with a witness wearing a niqab. He will still be able to note vocal inflections, the clarity of her tone, hand gestures etc. Justice Abella quotes from the Court of Appeal’s decision in R v Pelletier, ​2003 SCC 2 (para 100):

 “I question whether the respect given to our findings of fact based on the demeanour of the witnesses is always deserved. I doubt my own ability, and sometimes that of other judges, to discern from a witness’s demeanour, or the tone of his voice, whether he is telling the truth. He speaks hesitantly. Is it the mark of a cautious man, whose statements are for that reason to be respected, or is he taking time to fabricate? Is the emphatic witness putting on an act to deceive me, or is he speaking from the fullness of his heart, knowing that he is right? Is he likely to be more truthful if he looks me straight in the face than if he casts his eyes on the ground, perhaps from shyness or a natural timidity? For my part I rely on these considerations as little as I can help.”

Additionally, the purpose of demeanor evidence, at least as understood by the majority (and to a certain extent Justice Lebel in dissent) is to facilitate communication between the accused and his accuser. The Court, however, does not seem to adequately consider the effect of requiring NS to remove her veil on demeanor evidence. For NS, the niqab is an aspect of her identity as a religious individual and is a way of manifesting her connection to the divine. If asked to remove it, she may feel uncomfortable, she may feel that her privacy has been invaded, she may feel powerless as compared to the accused who remains comfortable in the clothes he always wears—these sorts of feelings may result in “demeanor” that is wholly unrelated to the truth-content of the evidence she provides on the stand, and yet nevertheless may be interpreted by the defendant’s counsel (and by the judge assessing her) as signs that she is not telling the truth. The legal imagination has certain ideas of what constitutes a credible witness: confident assertions, calm rhythm of speech, clear intonation, level responses to questions et cetera. If asked to remove the veil, NS may not fit into the legal picture of how a credible witness delivers her evidence; and this interpretation would result not because she is lying, but because she has experienced a profound intrusion into her sense of self as a religious individual.

Freedom of Religion in the Context of Sexual Assault

Under the final stage of the framework, the Court must balance the salutary effects of requiring the witness to remove the veil against the deleterious effects of doing so. In considering the deleterious effects on the witness’s freedom of religion right, the Court emphasizes that the focus is on the witness’s “strength of belief”. Importing a “strength” test seems to contradict, and indeed undermine, the Court’s assertions in previous freedom of religion cases. For example, in Syndicat Northcrest v Amselem, 2004 SCC 4, the Court stated that witnesses should not be put through an inquisition regarding their religious practices nor should courts attempt to become the arbiters of religious dogma. In this way, the sincerity of belief test is a comparatively lower threshold than that required by the strength of belief test posited in NS. Furthermore, the Court does not provide any real guidelines for how lower courts should go about determining the strength of a given belief, which is particularly problematic since the legal system struggles to understand what characteristics a given practice or belief must possess to be labeled “religious” for the purposes of the law. It seems, then, that lower courts may start to rely on “objective” truths about a given religious practice, which will set them on a very complex and convoluted path. Justice Abella, by contrast, recognizes that different faith communities, belonging to the same religion, can have different interpretations of sacred texts and different opinions about how to go about manifesting religious belief. She is concerned about the kind of evidence that would be required to determine the “strength” of a belief, particularly because there is disagreement within the Islamic faith itself about the “objective” nature of requiring Muslim women to wear a niqab. Indeed, it was the complexity of varying interpretations of a given religious belief that prompted the Court in Amselem to warn the judiciary to stay away from the type of inquiry the Court seems to have introduced in NS under this part of the analysis.

Justice Lebel’s decision would seem to have the most drastic consequences for witnesses who choose to wear the niqab. Although he repeatedly emphasizes that the courts are meant to be an open forum that welcomes individuals regardless of race, religion, gender, or other social identity factors, there appears to be a lack of recognition for the ways in which an absolute ban on the niqab would actually exclude Muslim women, not only from testifying, but also from reporting instances of sexual assault. The majority recognizes this problem, and this recognition presumably influenced the decision not to enforce an absolute ban. That said, given the Court’s prioritization on demeanor evidence provided specifically by facial cues, and its focus on the “strength” of an individual’s religious belief, it may be that the framework created by the Court will lead the judiciary to require the removal of the niqab more often than allowing the witness to wear it. This is particularly troubling for sexual assault cases because the Court states (para 44):

“…where the liberty of the accused is at stake, the witness’s evidence is central to the case, and her credibility vital, the possibility of a wrongful conviction must weigh heavily in the balance, favoring removal of the niqab.”

Sexual assault cases rely heavily on the testimony of the victim, a victim who must endure the ordeal of having to retell the events of the assault first to the police, and then again in open court. While the majority’s decision does not enact a complete ban, it is still open-ended enough that a victim will not know whether her request to wear the veil will be granted until she is before a judge. The difficulty, then, is that women who veil may decide that the risk of being required to testify without a niqab is too high and may therefore decide not to report instances of sexual assault. It is important to emphasize that NS is being asked to remove an article of clothing while testifying against her accuser’s in a sexual assault case. This is particularly troublesome not simply because it involves the literal removal of clothing, but because it involves a shift in the power balance in favor of the accused; the very same shift that occurs when sexual assault takes place. Individuals who commit sexual assault do so because of the control and power which results from rendering the victim entirely vulnerable. Requiring NS to remove the niqab is another manifestation of this power and control, and may be interpreted by Muslim women who wear a niqab as a removal of their choice to report sexual assault and testify against those they have accused. As Justice Abella states (para 96):

“The majority’s conclusion that being unable to see the witness’ 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, as previously noted, may be no meaningful choice at all.”

Conclusion

The decision suggests that the law has a weak understanding of the protection that should be afforded to religious freedom, and a potentially misguided understanding of the significance of demeanor evidence in accessing “The Truth,” and therefore in producing effective cross-examinations and credibility assessments. This leads to a skewed scale on which the Court balances the harms to trial fairness against the harms to freedom of religion; a scale that may lead lower courts to ban the veil more often than not. Aside from the difficulties with the Court’s attempts to understand freedom of religion generally, this case provokes controversy because, in the words of Justice Abella, the Court is deciding these issues against the backdrop of questions about “whether the niqab is mandatory for Muslim women or whether it marginalizes the women who wear it; whether it enhances multiculturalism or whether it demeans it”, and of whether these global questions matter when a single woman comes before the court to testify against those who have assaulted her, and asks to do so in accordance with her religious beliefs.