Testifying Behind The Veil: The Facts In The N.S. Case

On September 10, 2008, M---D.S. and M.---L. S. appeared before His Honour Judge Weisman for their preliminary hearing on charges arising out of historical sexual assault allegations. The victim, N. S., was a child at the time, when, according to her allegation, her uncle and her cousin sexually assaulted her. Although she complained of the assaults at the time, her father did not want the matter to be further investigated.

It was only as a mature adult, married and with children of her own, did N. S. reinstate the allegation and charges were subsequently laid. The allegations were such that the primary evidence against the two accused was from the alleged victim, making credibility the main determining factor in the case.

Unfortunately, this kind of situation, involving historical sexual assault allegations involving family members, is not unusual. What did make this case unusual was the manner in which the witness N. S. was dressed when she attended court to give evidence. As a practicing Moslem, N. S. was wearing a full body covering, known as an hijab, with a face covering veil, called a niqab, which showed only her eyes.

Defence counsel objected to her garb and requested the judge order the removal of the veil in order to conduct face-to-face cross examination. Judge Weisman, in open court, without conducting a formal hearing in which N.S. would have testified under oath and be subject to cross examination, questioned N. S. on her reason for wearing the veil. N. S. confirmed wearing the veil for religious reasons of modesty and only disrobing for family members. Another reason she did not wish to unveil herself was that:

--- the accuseds in this case are from the same community, they all go to the same place of worship as my husband as well and I have had this veil on for about five years now and it is --my face does not make any special, you know, like I know that--you know, there's body language, there's eye contact. I mean, I can look directly at the defence counsel, that is not a problem...it is a part of me and showing my face to--and it is also about--the religious reason is not to show your face to men that you are able to marry. It is to conceal the beauty of a woman, and you know, we are in a courtroom full of men and one of the accused is not a direct family member. The other accused is a direct family member and I, you know, I would feel a lot more comfortable if I didn't have to, you know, reveal my face. You know, just considering the nature of the case and the nature of the allegations and I think, you know, my face is not going to show any signs of--it is not going to help, it really won't.

N. S. was, however, unveiled for a driver's licence photograph, but a female photographer took the image while N. S. was behind a screen.

Judge Weisman ordered N. S. to remove her veil for her testimony. The decision was quashed upon judicial review by Justice Morrocco, but an application to permit N. S. to wear her veil during testimony was refused. This decision was appealed to the Ontario Court of Appeal, where, in a well written and reasoned decision, Justice Doherty, speaking for the panel, upheld Justice Morrocco's decision and remitted the matter to the preliminary hearing Judge to make the final determination on whether or not N. S. could testify behind the veil.

In another posting, I will discuss the reasoning for these decisions, but today I would like to point out the significance of the information given by N. S. at the time she was questioned by the Court, albeit in a less than procedurally satisfactory situation.

It appears, there are, in actuality, two issues to determine: the wearing of the veil for religious reasons and the wearing of the veil in order to provide comfort and privacy.

One issue, the wearing of the veil in accordance with Moslem modesty laws and tradition, is an issue of religious freedom under s.2(a) of the Charter. In this instance, this right comes into direct conflict with the accused's right to face his or her accuser for full answer and defence of the charges and is a protected principle of fundamental justice under s.7 of the Charter. 

The other issue, of comfort and privacy, engages N.S.'s right to protect her personal integrity and self-identity during the criminal process. Thus, society's interest in protecting trial fairness and in encouraging reporting by victim's of abuse is engaged as well. 

This delineation of the two issues is important as the final determination must take both concerns into account. Indeed, there are already provisions in our laws, specifically in the Criminal Code, to provide a more comfortable experience for a witness. One way this can be done is by permitting the witness to testify behind a privacy screen according to s.486.2(2), if "necessary to obtain a full and candid account from the witness." If so ordered, only the Judge and the lawyer conducting the examination can view the witness. Such an order strikes the right balance: as witness privacy rights are preserved and the trier of fact is able to assess demeanour and credibility. The constitutionality of this procedure was upheld by the Supreme Court of Canada in the Levogiannis case.

The other issue at stake, involving the freedom of religion and the competing interest of an accused's fair trial rights, must be assessed on a different basis. It is this clash of ideals which is at the heart of the N. S. appeal recently heard before the Supreme Court of Canada, and which will be further discussed in another posting. But here too, I suggest, there is an opportunity to strike a balance and come to an accommodation which preserves the rights of all.

Testifying Behind The Veil: A Study In Conflicting Charter Rights

Last week, the Supreme Court of Canada (SCC) reserved judgment after hearing argument on the N.S. case involving a witness's religious right to wear a naqib or a face covering veil while testifying. This Charter right comes into direct conflict with the right of an accused, under s. 7 of the Charter, to full answer and defence, a principle of fundamental justice and "one of the pillars of criminal justice on which we heavily depend to ensure the innocent are not convicted." 

As discussed in previous blogs, Charter rights are not absolute and may be restricted by the government if justified in a free and democratic society. Charter rights may also be limited when rights conflict. In those instances, the Court is required to determine the parameters of the competing claims in a just and appropriate manner consistent with Charter values. Just how the Court must approach this decision is the subject of this blog as a primer to the specific rights at issue in the N.S. case, which I will fully discuss in a future posting.

How to balance competing Charter rights? In the Dagenais case, Chief Justice Lamer considered the competing rights where a publication ban is ordered in a criminal trial. According to Lamer, "a hierarchical approach to rights, which places some over others, must be avoided" in favour of a balanced decision which "fully respects the importance of both sets of rights." As a result, the publication ban prohibiting CBC from showing the fictional account of abuse in The Boys of St. Vincent was overturned, despite the fair trial interests of the accused Christian Brothers, but on the basis the ban was overly broad and too protective.

The correct approach is, therefore, to balance the conflicting interests instead of choosing one right as more important, and thereby, more worthy of protection. This balancing must take into account all interests at stake, including the societal interest in promoting and protecting both sets of rights.

In the N.S. case, freedom of religion and the right of an individual to privacy conflicts with the principles of fundamental justice, which lay at the core of our criminal justice system. Add to that, the societal interest in promoting multiculturalism and tolerance and in protecting the presumption of innocence and fair trials, and the issues become even more complicated. 

It is these hard cases, where all interests are valid and Charter worthy, which make for interesting law. And it is the Court's subsequent response, which can change society.

The Sixty Day Review: Occupy Canada and Impaired Driving Alberta

Slightly more than sixty blog days have passed and it is time to review. I have chosen two of my most popular posting areas to review: the Occupy movement and the new Alberta impaired driving laws. 

As discussed previously, although the courts have recognized violations of freedom of expression resulting from the City's bylaws prohibiting the erecting of shelters in public spaces, these laws have been saved under s.1 of the Charter. This means the legislated restrictions on freedom of expression is justifiable in a free and democratic society. These decisions from across Canada have resulted in the removal of the various "Tent Cities," which were the outward manifestation of the movement's "occupy" philosophy. 

The media coverage of the court cases to remove the protesters seemed to overshadow the true nature and meaning of the protest. I recently read an excellent blog posting by the Dean of Osgoode Hall Law School, Lorne Sussin, who reminds us of the important "teachable moments" presented by the protest. In particular, Dean Sussin speaks of poverty and the inequalities arising from it, as the true issue to be resolved. 

This reminder lead me back to the letters written by the CCLA (Canadian Civil Liberties Association) to the various Canadian Mayors to remind the municipalities of their obligation to respect the protestors' human rights through "constitutionally-required tolerance towards peaceful, democratic activities."

As discussed in my previous posting, these reminders from the Dean and the CCLA provides the lessons we can learn from Charter values.

The second area of review is the contentious amendments to the Alberta Traffic Safety Act, which was passed late Tuesday, December 6 by the Tory dominated Alberta Legislature. After the Bill was passed, Premier Redford "softened the blow" by announcing the incremental implementation of the law.

The first phase, to begin in January 2012, will see the extraordinary penalties assessed against those whose BAC is over 80 and face criminal code charges as well. The second phase, involving increased penalties for those driving with BAC between 50 and 80, has no implementation date stamp as yet. According to Premier Redford, this second phase will be "accompanied by lengthy public education."

Already, there has been charts, graphs, and other such various multimedia presentations on what the new legislation "means." The difficulty is that these explanations are merely a general guideline and should not be used as a definitive guide to drinking and driving in Alberta. The calculations are estimates at best which rely on certain assumptions, which may or may not be the same for every person. As a result, the education may lead to more confusion.

In British Columbia, the harsh impaired driving laws, on which Alberta fashioned their new law, received a legal set back as discussed in my previous blog here. The BC government has still not announced their response, other than to recognize the need to change their legislation in order to make it constitutionally worthy. The growing issue is the response to all of the affected drivers, who were penalized under the old regime, and whether they will receive some recourse from the government.

The Alberta saw a real time example of impaired driving when Conservative MP Peter Goldring was stopped, after his constituency Christmas party, for drinking and driving. Goldring is now sitting outside of his caucus as a result of the charges: refuse to provide a breath sample contrary to the Criminal Code.

The only truly accurate educative message is: do not drink alcohol and drive. To that end, December, according to the Alberta Traffic Safety Plan Calendar, is Impaired Driving Awareness Month. As said in previous blogs, awareness education may be the best message to stop the dire consequences of drinking and driving. 

In the past sixty days we have discussed many interesting and important connections between ideas and the law. I invite you to read or even re-read these blogs, by visiting the "home" page, to make your own connections.

Follow Up Connections: Human Rights, Science, and Literature

As this blog is about connecting ideas, this follow up post will do just that: provide some interesting connections between human rights, science, and literature.

As discussed yesterday, International Human Rights Day, celebrated yearly on December 10, recognizes the anniversary of the most influential human rights document: the Universal Declaration of Human Rights. For more on this, read yesterday's posting here.

December 10, is also the day in which the Nobel Prize Laureates receive their Prize in a ceremony fraught with history and solemnity. This year, the Nobel Peace Prize recipients are three courageous women: Ellen Johnson Sirleaf, Leymah Gbowee, Tawakkol Karmen. According to the Nobel Committee, these three women won "for their non-violent struggle for the safety of women and for women’s rights to full participation in peace-building work". How apt these women received this prize on International Human Rights Day. Their inspiring lectures are a constant reminder that the struggle for human rights is ongoing, even though the Universal Decleration of Human Rights has been enacted for 63 years.

Yesterday was also exceptional for the lunar eclipse seen throughout many parts of the world. Historically, both solar and lunar eclipses, as an omen of fate, stopped wars, or, as in the case of the Peloponnesian War, changed the course of history. Thus, the lunar eclipse as a harbinger of peace, is a meaningful event on a day we celebrate human dignity.

Finally, December 10 was the birth date of a poet, who understood the power of words to express love and hate. Emily Dickinson was a shy and retiring poet, who wrote astoundingly simple yet breathtakingly beautiful poetry. In her 8 line poem from Part One: Life, Emily reminds us where our priorities lie:

I HAD no time to hate, because
The grave would hinder me,
And life was not so ample I
Could finish enmity.
Nor had I time to love; but since
Some industry must be,
The little toil of love, I thought,
Was large enough for me.

Connecting With International Human Rights Day

Today is International Human Rights Day, a celebration of the establishment of the Universal Declaration of Human Rights in 1948. The document was the natural progression of the newly formed United Nations in 1945, which was created in response to the atrocities of World War II. Below is a photograph of then Minister of Justice and Attorney General of Canada, Louis St. Laurent, signing the UN Charter in San Francisco:

This act in 1945, appeared to solidify Canada's presence at the UN as a peacekeeping nation and stolid protector of human rights.

In actuality, although John Peters Humphrey, a Canadian law professor, was the original drafter of the Declaration, Canada was not initially supportive of its implementation. William Schabas, presently a professor of international law and Director of the Irish Centre for Human Rights, in his excellent journal article entitled Canada and the Adoption of the Universal Declaration of Human Rights, explains Canada's initial refusal to support the Declaration when Lester Pearson, the then External Affairs Minister to the UN, abstained in an earlier vote.  It was only after pressure from Canada's allies, the UK and the USA, that Canada's final vote was changed in favour of implementation.

Schabas, through a detailed review of archival documents uncovered the real reason for this reluctance, bordering on "hostility," shown by the Canadian delegation. Pearson and others in the Canadian Government were concerned with the entrenchment of the broad human rights, which would become available under the Declaration, and could be used by "suspect" groups in Canada. In particular, the government feared the rights of freedom of religion and freedom of association would protect the Communists and Jehovah Witnesses, two groups identified by the government as "subversive" groups. Indeed at the time, the infamous Padlock Laws, enacted by then Quebec Premier Duplessis, which empowered authorities to "padlock" any building which held any "communist" literature or permitted the gathering of anyone associated with communism, was still in force.

It is, therefore, important to recall this dark side to Canada's history when rejoicing in our global commitment to freedom and choice through protections of human rights. Our successes in the area seem to be that much more impressive when we embrace the missteps of the past and move toward a more inclusive tomorrow.

This cannot be more so when we recall Canada's recent contribution to international human rights through Louise Arbour, an exceptional legal jurist who served as the High Commissioner for Human Rights and as Chief Prosecutor for the International Criminal Tribunals for the former Yugoslavia and Rwanda. Admittedly, her tenure did not go without controversy, however, she is a prime example of the dedication Canadians have shown to our international covenants.

More importantly, what makes today a cause for Canadian celebration and pride, is our commitment to human rights nationally. Our Charter of Rights and Freedoms has changed the fabric of Canadian society and has given life and meaning to fundamental freedoms and protections. It is this duality of commitment, which is epitomized by Louise Arbour as a former Supreme Court of Canada Justice, who wrote strongly in favour of the protection of rights, and, as the author of the Arbour Report, uncovered abuses at the Prison for Women at Kingston Penitentiary.

This truly is the legacy of the Declaration.