N.S. v. R. (Ontario C.A.)(Appeal scheduled for June 8 & 9, 2010)

N.S involves a sexual assault complainant who wears a niqab – a veil which covers the face, with the exception of the eyes. N.S. alleges that she was sexually abused as a child from the ages of 6 – 12. She is now in her early 30s. The accused are the complainant’s uncle and cousin. N.S. reported the alleged abuse to a teacher when she was a child, but her father convinced the police not to lay charges.

The accused object to N.S. wearing her niqab while giving evidence at the preliminary inquiry and trial, asserting a right to “demeanour evidence”, including N.S.’s full facial expressions. The preliminary inquiry judge ordered the complainant to remove her niqab. On appeal to the Ontario Court of Appeal, N.S. seeks an Order that she is entitled to wear her niqab at the preliminary inquiry and trial.

LEAF’s factum argues that N.S. is entitled to wear her niqab at the preliminary inquiry and trial, and that an Order requiring N.S. to remove her niqab as a precondition to testifying would violate her rights under ss.7 and 15 of the Charter.

LEAF argues that the accuseds’ objection to the complainant testifying in her niqab must be situated in the context of the historical and ongoing legal and procedural norms which re-victimize sexual assault complainants and reinforce their inequality. In particular, the objection must be seen in the context of defence tactics to “whack the complainant”, in an attempt to humiliate and intimidate complainants so that they withdraw from participating at trial or are diminished and beaten down as witnesses for trial.

LEAF argues that whatever one’s personal views are on the niqab, effectively disenfranchising sexual assault complainants who wear the niqab from the criminal justice system is inconsistent with promoting their substantive equality and respecting and protecting their s.7 Charter rights to life, liberty and security of the person.