Part I: R v NS

In 2007, NS accused two men, her uncle and cousin, of sexually assaulting her. She alleged that “she was sexually abused from the age of six.”^{Footnote 8} In 1992, she reported the assaults to a teacher, but her father intervened.^{Footnote 9} Years later, NS sought justice. Charges were laid and she was called as a witness in the preliminary inquiry and wished to testify wearing her niqab. NS described the niqab as “a part of me”; she asserted that it was essential to her “modesty” and “honour.”^{Footnote 10} The accused sought an order that she remove it. The preliminary inquiry judge, Weisman J., held a voir dire and concluded that since NS had allowed her picture to be taken for a driver’s license and had shown her face in the context of borders and travel, her religious belief was “not that strong.”^{Footnote 11} He ordered her to remove her niqab. The preliminary inquiry was adjourned due to NS’s objections.

NS then applied to the Superior Court of Justice for an order to permit her to wear the niqab and was partially successful. Marrocco J. held that NS should be allowed to wear the niqab if she had a sincere religious belief, but that the preliminary inquiry judge would have the right to exclude her evidence if the wearing of the niqab interfered with the right of the accused to a full and fair defense.^{Footnote 12}NS appealed, and one of the accused cross-appealed. The Court of Appeal held that if court procedures could not be accommodated to balance the interests of the parties, then “the accused’s fair trial interest may require that the witness be ordered to remove her niqab.”^{Footnote 13} The case was returned to the preliminary inquiry judge, but NS appealed to the Supreme Court of Canada. Her appeal was denied. The failure of the majority to consider these extra-legal, contextual issues is disturbing given the briefs provided by interveners, in particular the Legal Education and Action Fund (LEAF), the Barbara Schlifer Clinic, the Canadian Council on American-Islamic Relations, and the Canadian Civil Liberties Association.^{Footnote 14} For example, the brief from the Barbara Schlifer Clinic argued that the Court should have considered the balancing of the rights of the accused and the complainant in the context of “(i) the effect of the removal order on the underreporting of sexual violence, and (ii) the potential discriminatory exclusion of a class of women from access to the justice system.”^{Footnote 15}

Speaking for the majority (which included Deschamps, Fish, and Cromwell J.J.), McLachlin C.J. rejected both the assertion that “the courtroom is a neutral space where religion has no place” and the counter-argument that the justice system “should respect the witness’s freedom of religion and always permit her to testify with the niqab on.”^{Footnote 16} She asserted that a woman could be ordered to remove her niqab if “permitting the witness to wear the niqab while testifying create[s] a serious risk to trial fairness” and no accommodation could be found. Fundamentally, she argued that, in this case at least, the interests of the accused to a fair trial outweighed the religiously based concerns of the complainant.^{Footnote 17}

The judge in the preliminary inquiry had asserted that NS’s religious belief was not strong. McLachlin C.J., however, held that the judge’s inquiry in this regard had been insufficient and that “a witness should not be denied the right to raise section 2(a) merely because she has made what seemed to be a compromise in the past in order to participate in some facet of society.”^{Footnote 18} She ordered that the preliminary inquiry must reconsider this issue. She then assessed the argument by the defendant that “allowing NS to testify with her face covered by a niqab denies his fair trial rights.”^{Footnote 19} McLachlin C.J. admitted that the issue of “effective cross-examination and accurate assessment of a witness’s credibility” was hotly disputed. She asserted that “provisions of the Criminal Code, RSC 1985, c C-46, and judicial pronouncements” presume that the “ability to see a witness’s face is an important feature of a fair trial” and that “this common law assumption cannot be disregarded lightly.”^{Footnote 20} The majority minimized the obligation of the Court to consider fair trial rights in sexual assault cases from the perspective not only of the accused, but also of the complainant, and did not give adequate weight to the prejudice that exists against veiled women in the larger society. McLachlin C.J. did note that “if . . . women are required to remove the niqab while testifying against their sincere religious belief they will be reluctant to report offences and pursue their prosecution.”^{Footnote 21} However, she asserted that the interests of the accused and “safeguarding the repute of the administration of justice” were more compelling in this case since “no less is at stake than an individual’s liberty.”^{Footnote 22} She concluded that trial judges would have to weigh the interests of all parties in future cases, and that the niqab could be ordered removed when the Court determined that it would interfere in a fair trial.

Concurring in the disposition, LeBel J. and Rothstein J. (with reasons delivered by LeBel J.) asked whether wearing the niqab in any trial was compatible “with the constitutional values of openness and religious neutrality in contemporary democratic, but diverse, Canada.”^{Footnote 23} While LeBel J. prefaced his decision with the comment that he does “not cast doubt on the sincerity of the appellant’s religious beliefs,”^{Footnote 24} he considered such beliefs far less important than the rights of the accused. In particular, he asserted that “cross-examination is a necessary tool for the exercise of the right to make full answer and defense . . . and the balancing process works in his favour.”^{Footnote 25} This finding ignored the vulnerability of the victim-witness in sexual assault cases and the long history of credibility evidence being used in rape trials to discredit the victim.^{Footnote 26} LeBel J. also found that the “trial is itself a dynamic chain of events” and that allowing discretion with regard to when women can and cannot wear the niqab would lead to complications, confusion and mistrials: “[G]iven the nature of the trial process itself, the niqab should be allowed either in all cases or not at all . . . Because of its impact on the rights of the defense, in the context of the underlying values of the Canadian justice system, the wearing of a niqab should not be allowed.”^{Footnote 27}

Abella J. dissented. In balancing the interests of the victim and the defendant, she considered the context of sexual assault and asserted that “the harm to a complainant of requiring her to remove her niqab while testifying will generally outweigh any harm to trial fairness.”^{Footnote 28} She asserted that visual evidence is unnecessary, as “the court system has many examples of accepting evidence from witnesses who are unable to testify under ideal circumstances because of visual, oral, or aural impediments. I am unable to see why witnesses who wear niqabs should be treated any differently.”^{Footnote 29} The niqab also does not, she argued, prevent the assessment of the complainant’s demeanor, as “a witness wearing a niqab may still express herself through her eyes, body language, and gestures . . . the tone and inflection of her voice, the cadence of her speech, or, most significantly, the substance of the answers she gives,”^{Footnote 30} and a woman wearing a niqab may still be vigorously cross-examined. Unlike the majority, Abella J. explicitly noted that “a judicial environment where victims are further inhibited by being asked to choose between their religious rights and their right to seek justice undermines the public perception of fairness not only of the trial, but of the justice system itself.”^{Footnote 31} Abella J. would have sent the case back to trial with NS’s right to wear her niqab vindicated.

While the Supreme Court of Canada has spoken, for NS, this ordeal is far from over. On April 24, 2013, Weisman J., the same judge who initially determined that NS’s religious belief was “not that strong,”^{Footnote 32} ruled that NS must remove her niqab to testify in her sexual assault trial. Her lawyer has announced his intention to appeal.^{Footnote 33}

Part II: Veiled Women, Prejudice, and Section 15

In the West, particularly since the attacks of September 11, Muslim women often face hostility and suspicion.^{Footnote 34} As the Canadian Council on American-Islamic Relations asserted in their brief to the Court, “in popular discourse they (niqab-wearing women) are either vilified as fanatics who refuse to integrate, or infantilized as victims who are prevented from seeing their own oppression.”^{Footnote 35} The history of Western discourse is rife with “representations constructing women from the East and other parts of the world as exotic Others who needed to be unveiled so that their hidden natures could be consumed by the colonizers.”^{Footnote 36} The constructed opposition between “West versus East; modernity versus primitive tribalism; freedom versus oppression; democracy versus totalitarianism; Christianity versus Islam”^{Footnote 37} underlies the interpretation of veiling as hiding^{Footnote 38} and constructs niqab-wearing women as mysterious, untrustworthy and inscrutable.^{Footnote 39}

Critiques of these stereotypes of Muslim women abound. Jen’nan Ghazal Read finds that Muslim women in the West often veil “against the wishes of their father and husbands . . . to deal with the marginality they experience as outsiders in western society,” or to allow them more freedom of movement outside their homes.^{Footnote 40} Homa Hoodfar notes similar findings among Canadian teenagers.^{Footnote 41} Marie Lavigne argues that veiling—wearing the hijāb—is complex: “As a religious symbol, it raises the question of freedom of religion . . . As a cultural symbol it forces the . . . majority to consider their own capacity to assimilate people who are different. As a political symbol, it is associated in many minds with Islamic fundamentalism, and with opposition to democratic values.”^{Footnote 42} Similarly, Sharon Todd’s analysis finds that veiling “is no innocent ‘signifier’ . . . It has come to symbolize everything from Islamic fundamentalism . . . [to] women’s subordination.”^{Footnote 43}

As initially conceived, the veil was a symbol of respectability; it was not until the time of the Ottoman Empire that veiling became associated with religious practice as opposed to public decency and social status.^{Footnote 44} Now, the two are often conflated; the majority of young participants in a study cited the “freeing” aspects of the veil within Muslim communities in Canada—when they veiled, or when they socialized with girls who did, they showed their communities that they were “good” Muslim women who did not need to be strictly surveilled.^{Footnote 45} As scholar Reem Meshal points out, “Like their counterparts the world over, Muslim women are well aware of the significance of dress as a vehicle of gender expression.”^{Footnote 46} Hoodfar notes of veiling that “what we wear . . . has significant social and political functions, serving as a non-verbal medium of ideological communication.”^{Footnote 47} In practice, women veil for many reasons; however, courts have an obligation to recognize the myths that affect veiled Muslim women in Western, majority-Christian societies. Instead, the NS court, with the exception of Abella J., wrote judgments that, while ostensibly focused on upholding common law precedents regarding the rights of the accused to a fair trial, in effect reinforced stereotypes of veiled Muslim women as unworthy and untrustworthy.

The concern with courtroom openness indicates not the necessity to see the witness’s face—all of the decisions acknowledge exceptions—but the discursive constructions of Canada, Canadian identity, and “regular” Canadians within the context of multiculturalism. Yasmin Jiwani argues that the current political discourse of multiculturalism creates a false us-them binary in which those who are “multicultural” stand opposed to “regular” Canadians, and to Eurocentric constructions of “freedom, liberation, and democracy.”^{Footnote 48} Similarly, Carl James and others demonstrate “that Canada’s multicultural policy, and by extension multicultural education, sustain a discourse of diversity in which “other” Canadians (commonly read as “foreigners”) and their differences are merely “patronized” and tolerated, but not accepted.”^{Footnote 49} LeBel J. invoked the vague but ideologically powerful narrative of “common,” culturally authentic “roots,”^{Footnote 50} moving a troubling construction of multiculturalism to the heart of this decision. He argued that the “appeal . . . illustrates the tension and changes caused by the rapid evolution of contemporary Canadian society and by the growing presence in Canada of new cultures, religions, traditions and social practices”^{Footnote 51} and asked whether wearing the niqab is “compatible . . . with the constitutional values of openness and religious neutrality in contemporary democratic . . . Canada.”^{Footnote 52} When LeBel J. defined multiculturalism as a “space where all will be welcome . . . but where some common values” control interactions, he moved from multiculturalism to assimilation.

In general, Canadian Muslim women who veil “are deemed to be strange and strangers,”^{Footnote 53} despite their status as Westerners. Arguing that Canada has an “independent and open justice system in which the interests and the dignity of all are taken into consideration” and that “open and independent courts” are “a core component of a democratic state, ruled by law” instead of, presumably, religious fundamentalism, LeBel J. situated veiling firmly outside independence, openness, justice and even the rule of law.^{Footnote 54} The existing social construction of veiled women as “other” allowed the LeBel J. majority to render NS an outsider who has come up against “common values [which] . . . allowed Canada to develop and live as a diverse society.” It should be noted that the “hard line” position taken by LeBel J. and Rothstein J. was not supported by most other judges. McLachlin C.J., notably, concluded that in cases where the presiding judge finds that a woman’s right to wear the niqab does not impede a free and fair trial, the right to wear the niqab should be honoured. Nevertheless, we argue that in a society where “common values of Canadian society” ^{Footnote 55} support Islamophobia and Eurocentrism, it is likely that most niqab-wearing women will be found to be impeding a free and fair trial, at least if counsel for the accused raises the issue.

Definitions of multiculturalism such as that implicitly argued by LeBel J. have come under attack by anti-racist activists and scholars alike because they deny experiences of structural racism by racialized people.^{Footnote 56} Jiwani argues that eradicating the common-sense racism that affects veiled women in the West is difficult because “dominant discourses of denial . . . trivialize and dismiss the subtle and overt expressions of racism or simply refuse to name them as such.”^{Footnote 57} In foregrounding the hardships suffered by the accused when balancing religious rights with the right to a fair trial, LeBel J. ignored the double-bind that women of colour face when systems of patriarchy collude against them. Jiwani argues that the “colonial representation of women of colour as secretive, deceptive, and as appearing to be meek and submissive while plotting against their benevolent colonizers—or, for that matter, against their own men” positions racialized women as potentially dangerous, not only to the patriarchy of settler-colonizers, but also to the patriarchal privilege within their own group.^{Footnote 58}

Afsaneh Najmabadi argues that the veil is “an overdetermined sign . . . already disqualifying the woman as a liberal autonomous subject, a sign of extranational belonging that constitutes a civilizational threat, a sign of religious challenge to the secularism of modern states, and finally a sign of women’s oppression.”^{Footnote 59} The veil is seen

The presumption “that the real nature of these women is concealed, their truth is disguised and they appear in a false deceptive manner”^{Footnote 61} has particularly damaging consequences in the context of a sexual assault trial and both relies on and reifies the myth that women lie about rape.

Part III: Sexual Assault and Section 7

Sherene Razack argues that “Aboriginal women and women of colour are considered inherently less innocent and less worthy than white [Christian] women and the classic rape in legal discourse is the rape of a white woman.”^{Footnote 62} These underpinnings of racialization lead the Supreme and lower courts to assert that in order for NS to be trustworthy—to give “open” evidence—she must remove a visible marker of her racialized identity. This is despite the fact that Canadian courts, particularly the Supreme Court, have previously recognized that rape is endemic in Canadian society and that women face considerable obstacles in prosecuting perpetrators of rape. As Moldaver J. argued in Jane Doe, “[M]ost women fear sexual assault and in many ways govern their conduct because of this fear. In this way male violence operates as a method of social control.”^{Footnote 63} As l’Heureux-Dube J. asserted in R v Ewanchuk (1999), “[V]iolence against women is as much a matter of equality as it is an offence against human dignity and a violation of human rights,” and the Court has an obligation to protect women from harassment, intimidation and demeaning and prejudicial stereotypes in the course of determining a sexual assault complaint.^{Footnote 64} The Court has also recognized the long history of the prejudicial nature of demeanor evidence in the specific context of sexual assault trials.^{Footnote 65} Demeanor evidence has been used by defense counsel to humiliate, harass, intimidate, and discredit victim-witnesses.

It need not be shown here that myths with regard to rape have repeatedly been used in cross-examination and in the attempt to define the demeanor of the victim as untrustworthy, since this is well established in legal and social science literature. Rape remains the most under-reported serious crime in North America, and false reports of rape are no more common than are false accusations in other types of crime,^{Footnote 66} yet the myth that women lie about sexual assault remains pervasive.^{Footnote 67} This myth is particularly powerful with regard to suspect groups, such as minority women. LeBel J. asserted that “the niqab shields the witness from interacting fully with the parties, their counsel, the judge and, where applicable, the jurors,”^{Footnote 68} not-so-subtly suggesting that the niqab allows her to lie.

Legislation and court decisions have sought to protect women from the use and abuse of such stereotypes in the context of cross-examination.^{Footnote 69} However, as Elizabeth Sheehy has illustrated, “[E]very law reform in evidence law that has been generated to overcome sex discrimination in the adjudication of rape has been met with counter-moves by the defense bar.”^{Footnote 70} Attitudes about the niqab in this case provide a new example of a counter-move by the defense.^{Footnote 71} In 1999, the Supreme Court of Canada asserted unequivocally that, in the context of sexual assault, “an assessment of the fairness of the trial process must be made ‘from the point of view of fairness in the eyes of the community and the complainant’ and not just the accused.”^{Footnote 72} McLachlin J. (as she was then) made this same argument in R v O’Connor, in the decision that a complainant’s sexual assault counseling records were prejudicial and would not be made available to defense counsel: “[W]hat constitutes a fair trial takes into account not only the perspective of the accused, but the practical limits of the system of justice and the lawful interests of others involved in the process, like complainants.”^{Footnote 73} She asserted that a perfect trial is not possible, and that while “perfect justice in the eyes of the accused might suggest that an accused person should be shown every scintilla of information which might possibly be useful to his defense,” privacy interests require a “more realistic standard of disclosure.”^{Footnote 74}

This same standard could, and should, have been applied in the context of NS’s right to religious freedom. As LEAF argued in their brief, “[T]he ‘undressing of sexual assault complainants through cross-examination on their sexual history, medical records and other areas has repeatedly been analogized to the assault itself.”^{Footnote 75} Instead of limiting the right of the defense to harass, intimidate and discredit NS, “the metaphorical re-enactment of the assault through cross-examination becomes literal when the niqab is ordered removed.”^{Footnote 76} LeBel J. dismissed such concerns and accepted that “this model of justice imposes a significant personal burden on witnesses and parties.”^{Footnote 77} Such assertions consider witness discomfort to be an unavoidable individual burden, when in fact the humiliation and denigration of sexual assault victim-witnesses constitutes a violation of their section 7 rights to a fair trial.

Demeanor evidence was the foundation of the accused’s argument for a full defense in this case, but the negative implications of traditional ways of evaluating and weighing demeanor evidence in a sexual assault trial, which are well-documented in social science literature, in jurisprudence, and in some previous decisions of the Supreme Court of Canada, were ignored. The defense argued, as summarized by McLachin C.J., that “credibility assessment is equally dependent not only on what a witness says, but on how she says it. Effective cross-examination and accurate credibility assessment are central to a fair trial.”^{Footnote 78} While McLachlin C.J. noted that “being able to see the face of a witness is not the only—or indeed perhaps the most important—factor in cross-examination or accurate credibility assessment,” she asserted that it is nonetheless “deeply rooted in our criminal justice system.”^{Footnote 79}

Both decisions of the majority minimize the importance of a significant body of law that carves out exceptions with regard to the observation of the demeanor of a witness. Abella J., however, provided a compelling list of exceptions in her dissent. In cases involving a translator, the demeanor of the witness is mediated through translation, but this does not disqualify his or her evidence. As the Alberta Court of Appeal determined in R v Davis, “[T]he interpreter is usually calm and professional and so the English interpretation heard by the judge is done in a calm, non-contentious manner,” precluding full and direct observation of the witness.^{Footnote 80} As Abella J. also noted, physical or medical limitations may prevent full assessment of a witness’s demeanor: “[A] stroke may interfere with facial expressions; an illness may affect body movements; and a speech impairment may affect the manner of speaking,” yet such impairments do not disqualify individuals from providing evidence.^{Footnote 81} Further, evidence will be accepted by the Court from “a witness who is unable to attend the trial because of a disability, even when the accused’s counsel is not present for the taking of the evidence”; this precludes any kind of assessment of the demeanor of the witness, but the testimony is still considered probative.^{Footnote 82} Neither McLachlin C.J. nor LeBel J. explained how or why the limitations on the assessment of demeanor created by the niqab differ from these types of situations.

Moreover, the probative value of demeanor evidence has been questioned. Large-scale sociological studies have found that experts cannot determine who is, and who is not, telling the truth purely from outward demeanor.^{Footnote 83} Concerns with regard to the prejudicial potential of demeanor evidence are so widely shared that the Canadian Judicial Council manual Model Jury Instruction in Criminal Matters advises jurors not to “jump to conclusions based entirely on how a witness testifies.”^{Footnote 84} Courts echo such exhortations. As early as 1952, for example, the British Columbia Court of Appeal held that judging witnesses based on an “appearance of sincerity [would lead to] a purely arbitrary finding and justice would then depend upon the best actors in the witness box.”^{Footnote 85} This concern was reiterated very clearly in a 1995 case before the Alberta Court of Appeal: “I doubt my own ability, and sometimes that of other judges, to discern from a witness’s demeanor, or the tone of his voice, whether he is telling the truth.”^{Footnote 86} In 2010, the Ontario Court of Appeal held that “demeanor alone is a notoriously unreliable predictor of the accuracy of evidence given by a witness,”^{Footnote 87} and that social science evidence clearly illustrates that there are “no specific physical signs of lying.”^{Footnote 88} Although the majority asserted that the presumption that demeanor evidence was useful could not be overturned based on the evidence provided by the complainant’s counsel, it is nonetheless disturbing that the exceptions already granted were not analogized with regard to the niqab. Moreover, even if demeanor evidence had reliable probative value, that value would ultimately be destroyed in forcing a religious witness to remove her niqab.

Although the veil is worn for many reasons and holds religious, political, and embodied meanings,^{Footnote 89} when it is worn for modesty or respectability, as NS declared her niqab to be,^{Footnote 90} asking a woman to unveil in a public courtroom serves to further humiliate and debase her in a sexual assault case. There is no doubt that undressing NS would change her demeanor and thereby render demeanor evidence irrelevant due to her distress. As LEAF’s factum to the Court of Appeal noted, “[E]ven the most experienced witness would behave differently if asked to testify without, for example, his or her shirt on.”^{Footnote 91} In other words, her right to a fair trial was sacrificed to that of the defendant, despite the fact that the trial process is already known to be difficult for, and prejudiced against, the victim in sexual assault cases.