Content warning: this summary includes mentions of sexual assault in the ‘Facts’ section.
This case concerned access to justice for women who wear the niqab.
LEAF intervened before the Ontario Court of Appeal and Supreme Court of Canada.
Facts
N.S., a Muslim who wore the niqab, reported that she had been sexually assaulted. At the preliminary inquiry, the judge ordered N.S. to remove her niqab before testifying.
N.S. applied to the Superior Court for an order allowing her to testify while wearing her niqab. The judge ordered that N.S. should be allowed to do so if she had a sincere religious reason for wearing the niqab, but that the judge could exclude her testimony if the niqab prevented true cross-examination. The Court of Appeal held that the judge needed to consider the sincerity of the witness’ religious belief, and whether the niqab impacted the accused’s right to a fair trial. N.S. appealed to the Supreme Court of Canada.
Arguments
LEAF argued that the preliminary inquiry judge had no jurisdiction to order the removal of the niqab. While the trial judge would have jurisdiction to order the removal of the niqab, such an extraordinary order would violate the Charter rights of sexual assault complainants – including their rights to access justice without having to relive being forcibly stripped by the accused, and their rights to practice their religion in accordance with their beliefs without sacrificing their fundamental right to the law’s protection. As a result, these orders should rarely, if ever, be made.
For niqab-wearing complainants, the sexual assault preliminary inquiry and trial must not automatically commence with a hearing into the validity, sincerity and voluntariness of their religious practice. Rather, their religious convictions should be presumed. Cross-examination of the complainant on her religious beliefs also carried the real danger of facilitating yet another form of wide-ranging virtue testing of the complainant, as well as attacks on her credibility by casting doubt on her religious beliefs.
Outcome
A majority of the Supreme Court dismissed N.S.’s appeal. The majority held that a witness would be required to remove the niqab where:
- It was reasonably necessary to prevent a serious risk of trial unfairness, because other reasonably available measures would not prevent the risk; and
- The benefits of requiring the witness to do so outweigh the costs of doing so
LEAF is grateful to Susan Chapman and Joanna Birenbaum, counsel in this case, as well as Nancy Brooks, Ottawa agent for LEAF.
Download the Ontario Court of Appeal factum here.
Download the Supreme Court of Canada factum here.
Read the Ontario Court of Appeal’s decision here.
Read the Supreme Court of Canada’s decision here.
Our records are imperfect, but we are doing our best to update them – if you were involved with LEAF on this case but your name is not reflected here, please email us at [email protected].
