NS case leaves rights of niqab-wearing women in doubt

In another respect, Canadian society in general and courts in particular continue to have much catching up to do in the respectful treatment of sexual assault survivors such as NS who, while still a child, reported alleged abuse to a teacher. However, her father convinced police not to lay charges. Charges were eventually laid when NS was an adult.

In the NS case, the accused, a male cousin and an uncle, allege that an inability to see the full face of NS while she testifies denies them the right to a fair trial because they need to observe her facial demeanour as a means of assessing credibility. NS’s lawyers, among others, argued that this is a red herring, since demeanour is at best an inexact, subjective science that, even if relied upon, can be measured in innumerable other ways in ultimately making a determination about truthfulness.

Whacking the complainant

In the end result, the majority of the Supreme Court sent the issue back to the original judge hearing the case, concluding that decisions about the niqab could be made on a case-by-case basis. While some appeared satisfied with the result – including the complainant’s lawyer – the decision failed to resolve a number of significant issues. Chief among them is whether the defendants’ demand for a removal of the niqab – which NS had already said would make her very uncomfortable – is another form of continuing abuse, what intervening group  Women’s Legal Education and Action Fund (LEAF) called an attempt to “whack the complainant,” a common defence tactic.  

In other words, as LEAF argues, “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.”

Indeed, that issue remains a live one in the NS case, as she still does not know whether a judge will order her to remove her niqab. While the Supreme Court majority found that requiring “witnesses to park their religion at the courtroom door is inconsistent with the jurisprudence and Canadian tradition,” if such uncertainty is to become the standard, this will likely create a barrier that keeps a specific group of women from accessing the justice system when they have been wronged.

Ironically, the male defendants in the NS case did not appear to object at the original preliminary inquiry when NS was questioned about her strongly held beliefs by the judge. That judge  listened to her responses while she was wearing her niqab and did not say that her niqab prevented him from assessing her testimony. During that questioning (one she undertook without the benefit of prior legal advice), NS said she had worn niqab for five years, declared she would look defence counsel squarely in the eyes, and said that she would feel “a lot more comfortable” if she did not have to remove it. The judge, however, concluded her religious belief was “not that strong,” and so began the process leading to the Supreme Court challenge. (The Supreme Court, notably, said the judge failed to undertake a proper inquiry into the sincerity of her belief. Equally notable, the Supreme Court has ruled in the past that “a court is in no position to question the validity of a religious belief.”)

Inadvertent discrimination

While two dissenting Supreme Court justices insisted on a complete ban on the niqab in all criminal proceedings, Justice Rosalie Abella, in her singular dissenting opinion, declared that unless “the witness’s face is directly relevant to the case, such as where her identity is an issue, she should not be required to remove her niqab.”

Judge Abella’s findings, which appear more sympathetic to NS’s view, may still nonetheless be exploited to “whack the complainant,” while perhaps inadvertently buying into the notion that a woman might wear niqab to hide behind false charges. It is difficult to imagine that, even under the narrow circumstances described by Justice Abella, a defence lawyer will be shy about pushing the identity envelope.

Meanwhile, Natasha Bakht notes that a similar vein of inferring the potential for misrepresentation via niqab is one that has arisen in Pakistani courts for niqab-wearing lawyers, remarking: “That veiled advocates are suspected of misrepresenting themselves when lawyers have codes of conduct that they are required to abide by, indicates that even those most educated in justice do injustice by resorting to biased beliefs about a marginalized group of women.”

Thus, assaulted women who wear niqab will still question whether it is safe to go to court, since an ironclad guarantee is not in place. This is ironic, since within the Supreme Court’s decision are found numerous examples of why the main argument – the need to see NS’s face – is not necessarily determinative of the strength of her testimony.

Demeanour evidence

“Courts regularly accept the testimony of witnesses whose demeanour can only be partially observed and there are many examples of courts accepting witnesses who are unable to testify under ideal circumstances because of visual, oral, or aural impediments,” Justice Abella wrote, noting that a demeanour assessment of NS could include gestures, eyes, body language, tone and inflection of the voice, cadence of her speech, and, ultimately, the substance of her verbal answers, which would be subject, no doubt, to vigorous cross examination.

In a scholarly article “Objection, Your Honour! Accommodating Niqab-Wearing Women in Courtrooms,” Ms. Bakht quotes a study finding “that with rare exception, ‘no one can do better than chance at spotting liars by their demeanour.’ It is amazing to many people when they learn that all of the other professional groups concerned with lying – judges, trial attorneys, police, polygraphers who work for the CIA, FBI or NSA (National Security Agency), the military services, and psychiatrists who do forensic work – did no better than chance. Equally astonishing, most of them didn’t know they could not detect deceit from demeanour.”

Notably, while members of the Supreme Court insisted on the right of the accused to face an accuser, there remain instances, largely affecting Muslims in Canada, where this is simply not allowed. In security certificate cases, most of which are heard in secret, an individual never sees, much less hears, or even reads transcripts of, the allegations being made against them. In addition, in the limited public hearings, witnesses from the Canadian Security Intelligence Service often insist on testifying behind screens or video videolink from secure bunkers, invoking vague claims of national security.

Similarly, individuals sought under extradition are generally not allowed to call as witnesses the individuals who piece together the paperwork that forms the basis of the extradition request.

Ultimately, while the Court majority noted “The need to accommodate and balance sincerely held religious beliefs against other interests is deeply entrenched in Canadian law,” Judge Abella’s dissent starkly reveals that, while accommodations will be sought, individuals like NS still face being “forced to choose between laying a complaint and wearing a niqab, which may be no meaningful choice at all.”