Sexual Assault Complainant Should Not Be Stripped of Niqab
December 7, 2011 – Ottawa: On Thursday, December 8, 2011, the Supreme Court of Canada will hear the appeal of a niqab-wearing sexual assault complainant who was ordered to remove her niqab as a precondition to testifying at the preliminary inquiry of two male family members charged with sexually abusing her as a child.
N.S. is asking the Supreme Court of Canada to affirm her right to testify wearing the niqab.
“Women who have been sexually assaulted should not be shut out of the justice system just because they wear the niqab”, says LEAF Legal Director and co-counsel, Joanna Birenbaum.
“The accused are asking the court to forcibly remove a deeply personal article of religious clothing worn by a sexual assault complainant. This demand must be seen in the context of the discriminatory treatment of women who report sexual assault” Birenbaum explains. “The sexual assault preliminary inquiry has a long history of being used to degrade, humiliate, intimidate and re-victimize sexual assault complainants, to get women to drop sex assault charges or discourage them from reporting sex assault in the first place.”
Susan Chapman, LEAF co-counsel, says “niqab-wearing women are already a stigmatized racial minority in Canada, subjected to heightened scrutiny and stereotyping. If niqab-wearing women believe that they will be ordered to remove their niqabs if they seek the protection of the Canadian legal system, will they ever report sexual assault? The message will be that these women can be sexually assaulted with impunity. This is clearly unacceptable.”
The Ontario Court of Appeal quashed the lower court order requiring N.S. to remove her niqab, but left open the possibility that N.S. could be ordered to remove her niqab at the preliminary and at trial.
LEAF’s Supreme Court factum argues that the preliminary inquiry judge has no jurisdiction to order the removal of the niqab. LEAF further argues that while the trial judge has jurisdiction to order the removal of the niqab, such an extraordinary order would violate the Charter rights of sexual assault complainants and should rarely, if ever, be made.
“The constitutional rights engaged by an order stripping a sexual complainant of her niqab are profound” says Birenbaum. “These rights include: the right to be free from state-imposed psychological trauma, physical and psychological integrity, equality, and a justice system which operates free of discrimination and prejudice.”
Chapman explains that “mere access to “demeanor evidence”” (which may include the facial expressions of a witness) is “insufficient to justify the intrusive order requested. Put simply, the accused have no constitutional right to demeanor evidence. Moreover, demeanor evidence has a proven history of subverting the truth-seeking function of the criminal trial, particularly in the sexual assault and cross-racial contexts. Stereotypes and discriminatory assumptions deeply influence judgments of credibility.”
Even the Ontario Court of Appeal recognized the unreliability of demeanor evidence. “The Court of Appeal noted that allowing the complainant to wear her niqab could advance the truth seeking function of the criminal trial” says Chapman, “The Court recognized that a complainant who normally wears the niqab and is unveiled cannot be expected to “be herself” on the stand.”
“LEAF takes no position on the practice of wearing the niqab”, says Birenbaum. “LEAF is very concerned, however, that women who wear the niqab are not excluded from basic democratic institutions.”
LEAF is also concerned that racist and other stereotypes of Muslims not influence the public discussion of this sexual assault complainant’s right to access the justice system and participate in a fair trial.
“Almost all of the focus has been on the impact of the veiled-witness on the rights of the accused. But the disadvantage at trial will almost certainly be experienced by the niqab-wearing woman. In the current political climate in which veiled Muslim women are feared and distrusted, how will the evidence of a niqab-wearing witness be received? A Muslim woman who covers her face in court faces significant prejudices that she is hiding something and cannot be believed.”
LEAF’s Supreme Court of Canada factum in R. v. N.S. is available at:
LEAF’s Backgrounder on R. v. N.S. and Quebec Bill 94 is available at: