Dear LEAF Supporter
The Supreme Court of Canada (SCC) released its decision yesterday in the case of R. v. NS. In a split decision, Chief Justice McLachlin, writing for the majority, and Justice Abella, in her dissent, agree that access to justice for women who wear the niqab is important.
LEAF celebrates this recognition of the argument we made at both the Ontario Court of Appeal and the SCC. The majority decision does recognize both the right of complainants to testify and that sexual assault complainants have historically faced greater challenges in that regard. However, they balance those rights against the rights of the defendant to a fair trial.
Susan Chapman, lawyer for LEAF, the Women’s Legal Education and Action Fund, states: “The starting proposition here is that she’s entitled to wear it [the niqab] until somebody demonstrates, namely the accused, that it will impact adversely on his fair trial rights …The onus I see is on the accused.”
We are disappointed to see an emphasis given to demeanour evidence, particularly as the majority cites that insufficient evidence had been presented to establish that demeanour evidence is so subjective as to be unreliable. The corollary is of course true, and no evidence was presented firmly establishing its worth. Rather, the decision relies on the fact that demeanour evidence has a long history. Many of the examples it cites mention facets of demeanour evidence that would remain available even if a women was veiled.
Ms. Chapman said she was disappointed that the top court relied on tradition, in going by the common law practice that faces are seen in a courtroom.
“We live in a multicultural society. The fact that something is tradition is not an adequate answer to a human rights question,” Chapman said.
Nonetheless, we are heartened that the SCC has not precluded women who wear the niqab from testifying. We will continue to monitor R. v. NS and other situations in which the test outlined in the decision is developed and used.
For more information please contact:
Marilyn Roycroft Susan Chapman
Acting Executive Director (LEAF) Co-counsel
(416) 595-2170 (ext.225) (416) 969-3061