N.S v. R. involves a sexual assault complainant who wears a niqab – a veil that covers the face, with the exception of the eyes. The question before the SCC was whether N.S. can access the Canadian justice system wearing her niqab.
LEAF intervened before the Ontario Court of Appeal and the Supreme Court of Canada.
N.S., who is now in her 30s, alleges that she was repeatedly sexually abused as a child from the ages of 6 – 12 by her uncle and cousin (the accused). N.S. reported the alleged abuse to a teacher when she was a child, but her father convinced the police not to lay charges. As a result, charges were not laid until 2007.
On the first day of the preliminary inquiry, the accused objected to N.S. wearing her niqab while giving testifying, asserting a right to “demeanour evidence”, including N.S.’s full facial expressions.
The preliminary inquiry judge ordered the complainant to remove her niqab. The Ontario Superior Court of Justice and the Ontario Court of Appeal quashed that order. The lower courts, however, did not hold that N.S. has a right to wear the niqab. Instead both courts directed that the accuseds’ objection be re-considered by the preliminary inquiry judge. N.S. is appealing to the SCC for an order that she is entitled to wear the niqab at the preliminary inquiry and trial.
LEAF argued 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 argued 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 that re-victimize sexual assault complainants and reinforce their inequality.
In particular, LEAF argued that the objection must be seen in the context of defence tactics to “whack the complainant.” In other words, the removal of the niqab in this context is best understood as an attempt to humiliate, degrade and intimidate the complainant. Such intimidation can force a complainant to withdraw from participating at trial, likely putting an end to the prosecution.
LEAF’s submission was 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.
In a split decision, the SCC imposed a test aimed at balancing the complainant’s rights against those of the accused.