A Balancing Act: The Supreme Court of Canada and Testifying Behind The Veil

In two concurring reasons and one dissenting reason, the Supreme Court of Canada, in the N.S. decision, has continued the Charter discourse surrounding conflicting rights. Unsurprisingly, the majority message, written by Chief Justice McLachlin, is one of balance and accommodation on a case-by-case determination. The Trial judge must weigh the conflicting rights in the context of the case with due deference to Charter values. The values, however, are flexible, adaptable, and tolerant of each other. In the Charter arena, there is no room for immoveable values, which are fixed and unbending.

This approach does, on the face, appear to be consistent with the Charter itself, which guarantees rights and freedoms but not absolutely: they are subject to the reasonable limits of a free and democratic society. This, however, is a liberal concept, a concept born in the revolutionary times of the 18^th century when religion was given a tempered view in favour of scientific and provable reasoning. As a result, the question remains whether the balancing act proposed by the SCC will provide enough protection to freedom of religion/belief in an age where having a belief system is not required in a free and democratic society.

On the other hand, the traditional concept of criminal law based on the presumption of innocence and fair trial, as values to be balanced, may very well be eroded by this balancing act as well. Critics of the SCC approach might properly ask: how can the very essential core concepts of criminal law ever be subject to accommodation? Some values, those critics would argue, should never give way or they will fail to stand on their own. Interestingly, these concerns form the basis of the concurring judgment of Justices Lebel and Rothstein.

Justice Abella’s dissent is not based on religious rights as a concept to be jealously guarded, but is based on Charter values flowing from earlier Charter cases on protecting the vulnerable members of our society such as children and women. Her dissent focuses on the very real issues of access to justice and the marginalization of those less powerful sectors of our society. This viewpoint becomes even more important in light of the recent release of Wally Oppal’s Report on missing women and the trend toward dismissing the rights, or even the existence of, prostitutes, the homeless, and Aboriginal women.

In the N.S. decision, we see a microcosm of Canadian society: differing viewpoints arising out of the same context, which reflect strongly held values, but which also reflect the true legacy of the Charter as a document that encompasses, and tolerates, all. 

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 Road Taken by the Supreme Court of Canada

The Supreme Court of Canada, this Fall has already released a number of important judgments. The PHS Community Services Society decision on Ministerial discretion, or lack thereof, under s.56 of the CDSA for an exemption of a safe injection site in Vancouver is one such case. Another, is the Crookes v. Newton case in which the Court described a hyperlink in a website article as a reference and not a defamatory publication. 

The Court has also heard and reserved on some controversial cases such as the Whatcott case involving the constitutionality of the hate speech provisions in the Saskatchewan Human Rights Code. Whatcott is a good example of the difficult issues found in a Charter case involving conflicting fundamental freedoms as the freedom to express competes with freedom of religion. Not unusually with these conflicts, there is rarely a clear winner. As Ronald Dworkin, an American constitutional scholar, would say, one right does not "trump" another. For our rights in Canada, although guaranteed, are limited within the Charter itself. Ever reasonable, we Canadians prefer the balanced route, the road taken so to speak.

For tomorrow's blog we will be "taking rights seriously" as I speculate on the case the SCC has not yet heard, but should, and possibly, will.