But in law, arbitrary simply means unconnected to any legitimate objective. This is what my friend had a difficulty with: that government, even with a democratic mandate, doesn’t have complete discretion. And last Friday, the Supreme Court of Canada issued a ruling that criticized the federal government for one such arbitrary decision: not renewing an exemption from criminal drug laws for the Insite safe injection facility in Vancouver.

Insite, suported by the province of British Columbia and the city of Vancouver, gives drug addicts a clean and safe place to inject under medical supervision. They would inject anyway, out on the street, probably with a used needle and in public. Addiction is a disease. You know when the Chief Justice’s reasons begin with a description of drug addicts drawing water from puddles to inject heroin, she is going to have a strong opinion about the government’s decision to block Insite.

The courts have held that there are only two goals in the Controlled Drugs and Substances Act (CDSA), a federal law that makes using drugs a crime: public safety and public health. Any government decision under this law that doesn’t serve either of these goals is arbitrary. For example, using the CDSA to promote marriage is arbitrary. A famous example of an arbitrary government decision was revoking Frank Roncarelli’s liquor license because he gave money to Jehovah’s Witnesses.

In the years of litigating the Insite case from trial to the Supreme Court, government’s lawyers failed to prove any harm to either public safety or heath from Insite. But the benefits to at least public health and quite probably to public safety are obvious.

The CDSA gives the federal Minister of Health the power to exempt from criminal liability. Using this power without a connection to either public health or public safety is arbitrary. There is no absolute discretion for the government.

Insite originally got the exception from drug laws so doctors and nurses wouldn’t be arrested for ensuring addicts don’t kill themselves. The federal government used its power under the CDSA to deny that exception out of the blue despite the evidence of Insite’s benefits for both purposes of the CDSA. That’s arbitrary.

Of course, we know that governments don’t usually waste their powers on random choices that have no purpose. Government decisions often serve political constituencies. In the Supreme Court, federal government lawyers failed to give one good reason to counter expert reports and other evidence that Insite was beneficial for public health and safety—two purposes of the CDSA. But one argument government lawyers made is illuminating: addicts shouldn’t get an exemption because its their own fault they are addicts. Is this a hint at the real reason for trying to block Insite: the same reason why, in the past, some governments tried to block HIV research funding and abortion services?

Pulat Yunusov is a Toronto litigation lawyer.

(Post sponsored by AdviceScene)

Summary of the Law and the Crown’s Argument

Subsection 734(1) of the CCC provides that a court may fine a convicted offender in addition to imprisonment subject to ss. 734(2). Subsection 734(2) provides,

Except when the punishment for an offence includes a minimum fine or a fine is imposed in lieu of a forfeiture order, a court may fine an offender under this section only if the court is satisfied that the offender is able to pay the fine or discharge it under section 736 (emphasis added).

The Crown argued that ss. 734(2) should be interpreted to require the defendant to prove that he or she is unable to pay – in essence a reverse onus. This argument was made because the Crown could not track the whereabouts of the $4.7 million and Topp could not explain what happened to the money. Fish J., writing for the unanimous SCC, rejected the Crown’s argument because the legislative intent of requiring that a defendant be able to pay was to avoid imprisoning individuals for failing to pay fines. As well, the wording of ss. 734(2) did not create a reverse onus for the defendant.

While there is no formal burden on the Crown to prove a defendant’s ability to pay, in practice the former will need to marshal evidence of the latter’s ability to pay. Fish J. explained that, “as a matter of law, the court cannot impose a fine unless it is satisfied [on a balance of probabilities] that the offender is able to pay.  This necessarily involves an affirmative finding based on the evidence and information properly before the court pursuant to ss. 720 to 724 of the Criminal Code.  Absent a sufficient basis for that finding, the party seeking the fine cannot legally succeed.” Evidence must be marshaled otherwise a sentencing judge cannot make a finding that a defendant is able to pay. Similarly, while there is no formal burden on a defendant to rebut the evidence marshaled by the Crown, the defendant is free to present evidence on his or her inability to pay.

Inferences by the Sentencing Judge are Permitted

The ability of the trial judge to make inferences based on the offender’s ability to pay was also discussed by the SCC. Where the offender has received illegally obtained funds in the past but cannot provide a reasonable explanation as to its whereabouts, the sentencing judge is not required as a matter of law to make an inference that the offender still possesses sufficient funds to pay a fine, but is permitted to do so. While it is permissible for him or her to make such an inference, the SCC cautioned that an inference cannot always be made, and the strength of the inference is based on the facts of each case and thus varies from case to case.

Two factors are relevant in a sentencing judge’s assessment of whether to make the inference that a defendant is able to pay based on his or her  receipt of illegal funds in the past: (i) the length of time that has passed between the acquisition of the funds and the imposition of sentence; and (ii)  the amount of funds acquired. The SCC explained that, “[t]he more time that has passed since the acquisition of the funds, the less likely it is that the offender still possesses the full amount.  And the lower the amount of funds acquired, the less likely it is that the offender still possesses much or all of the funds.  A small sum is more likely than a large sum to be gone in its entirety.” The sentencing judge will have to exercise his or her discretion to determine how much weight to assign to the past receipt of illegal funds.

Minimizing the Deterrent Effect of Fines

While the avoidance of imprisonment for failing to pay a fine is laudable, it is still worthwhile to enquire whether this decision diminishes the deterrent effect of fines. It is arguable that if individuals know that they will not have to pay a fine if they do not have the funds and/or cannot reasonably explain the whereabouts of the funds, then there is incentive for them to spend lavishly into oblivion and/or conceal the money. They wager that they will not have to pay the fine, and thus the effect of the fine in deterring individuals from committing crime is reduced. The strength of this argument is weakened by the reality that some individuals will engage in those activities regardless of whether the ability to pay is a factor in sentencing. Thus, in that regard the emphasis put on the ability to pay may not significantly impact the deterrent effect of fines.

Similarly, it could also be argued that the factors that are used to assess whether a sentencing judge should make an inference regarding ability to pay create an incentive for individuals to conceal illegally obtained funds and wait patiently in order to weaken the strength of any inference that they still possess the funds and are able to pay the fine. It is plausible that some individuals may bank (both in the literal and figurative sense) on that, though, once again, the reality is that some individuals that engage in fraud will conceal illegal funds and wait until the there is less scrutiny of their activities regardless of whether those factors are used.

The factors are practical because they reflect the likelihood of a particular defendant being in possession of illegally obtained funds after the passage of time. As cliché as the title of this post sounds, one cannot extract what is not there to begin with. Based on those reasons as well as the importance of guarding liberty, as reflected in the legislative intent of ss. 734(2), it was appropriate that the SCC upheld Baltman J.’s sentencing decision.

Cause of death: lethal injection. Administered by: employees of the state of Georgia. Legal justification of homicide: a court order. Grounds for the court order: Troy Anthony Davis’s murder conviction.

Societies punish crimes for specific reasons. Section 718 of the Canadian Criminal Code is a good summary of purposes of criminal sentencing:

(a) to denounce unlawful conduct;
(b) to deter the offender and other persons from committing offences;
(c) to separate offenders from society, where necessary;
(d) to assist in rehabilitating offenders;
(e) to provide reparations for harm done to victims or to the community; and
(f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community.

Death penalty doesn’t rehabilitate or deter the offender, doesn’t compensate anyone, and doesn’t make the very dead offender feel any responsibility for or acknowledge anything. It should be pretty clear by now that it doesn’t deter others too. It does separate the offender from society, so to speak, but usually prisons do that job perfectly.

But denounce, it does.

So the only true reason for death penalty is denunciation. All other reasons either do not exist or do not require death penalty. Societies, at least rational societies, kill only to denounce, to show contempt for the crime, to assign a special measure of gravity to the illegal act. There is no other reason. The only reason for death penalty is really a symbol.

No doubt, denunciation can be a valid reason. But let’s see what price we pay for denouncing by death.

You can look up Troy Davis yourself and find out that his conviction was based on eye-witness testimony much of which was later recanted. I probably don’t need to explain why this creates a possibility that he was innocent. This possibility is also called reasonable doubt. And the supreme value of our society is preservation of innocent life. You would think the courts would choose the chance and the possibility of preserving innocent life over a chance to denounce murder. After all, no one would think more kindly of murder if Troy Davis got a life sentence or if he was released based on reasonable doubt in his guilt. And there is another value the courts would have protected if they spared Davis’s life: fairness. The more opportunities an accused person has to clear his name, the more fair our legal system is.

But the courts chose a different value over all the others: finality. Its purpose is to unclog our court system and to give litigants some sort of confidence that their case is not going to be reopened. This value is very important in civil litigation: hence, limitation periods, res judicata, etc.

In criminal law, finality serves victims and their families and the public purse to some extent. It doesn’t usually serve the accused, and it certainly didn’t serve Troy Davis.

The courts chose finality for the victim’s families and the public purse over fairness to Davis and preservation of his potentially innocent life. You decide if it was the right choice.

Pulat Yunusov is a Toronto litigation lawyer.

(Post sponsored by AdviceScene)

Edney worked from 2004 to 2011 on Omar Khadr’s defence against charges stemming from the July 2002 firefight death of a US soldier. Khadr, who is Canadian, was 15 at the time. American forces interrogated him for three months in the US-operated Bagram Theatre Detention Facility in Afghanistan, before transferring him to Guantanamo Bay, where he remains. In 2005, Khadr’s chief interrogator from Bagram, US Sergeant Joshua Claus, was found guilty of offences relating to the routine torture and homicide of Bagram prisoners. Claus received a five-month prison sentence. He testified at Khadr’s military trial in 2010.

In April 2009, the Federal Court ruled that Canada was complicit in the US’s torture of Khadr and ordered Ottawa to seek his repatriation. The Federal Court of Appeal concurred, but the Supreme Court ruled 9-0 that though Canada was violating Khadr’s human rights, it was not obliged to seek his repatriation.

In October 2010, after insisting on his innocence for years, Khadr pled guilty in a military trial to terrorism-related offences, in exchange for a promise from Canada to repatriate him by October 2011 to serve the rest of his prison sentence in Canada. On September 20, the Conservatives tabled the controversial omnibus Bill C-10, which adds “additional criteria” to decisions about “whether or not to allow the transfer of a Canadian offender back to Canada to serve their sentence.”

Shortly after the trial, Edney declared that Khadr “would have confessed to anything, including the killing of John F. Kennedy, just to get out of this hellhole” and that if he had refused, Khadr would have been faced with “an unfair [military] trial based on evidence that would be inadmissible in a real court.” On Thursday, Edney said the detainees are entitled “to all kinds of international protections, but our governments are not asking for them. And by not asking, we become complicit.” There are nearly 800 prisoners in Guantanamo, but only 4 have been charged and given a trial. Detainees cannot see the evidence used against them.

In his lecture, Edney denounced the Canadian government for perpetuating a culture of fear in the camp’s defence. Edney stated that “since there has always historically been terrorism, and since there will always be terrorist threats, this war on terror – if allowed to be one – is unlike any other, because it is never-ending.” Thus, last decade has been marred by “habeas corpus being abandoned, secret courts being created to hear secret evidence, guilt inferred by association, torture and rendition nakedly justified.”

“I went into Guantanamo Bay as a lawyer and I came out as a broken father,” said Edney. “I never thought that in my lifetime I would go to such an evil place and see such evil being done.” Of the infamous cages, Edney said that “people go into those cages thinking they’re having a holiday in there.” He drew attention to Camps 5, 6, and 7. The first two are “designed for enhanced interrogation tactics: torture.” He said about Camp 7 that “We are not allowed to talk about it. We have prisoners in there who came from Europe, about a year and a half ago, and they’re going to be there forever, because there’s no one there to help.”

Edney discussed the 9/11 witch hunt, in which “the US government detained hundreds, if not thousands, of people of colour on the suspicion of terrorist activity, some of them up to a year, all without charges.” He continued that “almost none of those individuals were found to have been in any way connected with terrorism. Yet many continue to be held without being formally charged with any crime or immigration violation.” In this way Guantanamo “provides powerful evidence of how America and the West are making war on terror synonymous with the war on Islam. No white Anglo-Saxon goes to Guantanamo Bay. Any American picked up for terrorism offences gets due process in a federal court system in New York.”

One audience member suggested that the camp must serve some purpose, because otherwise US President Barrack Obama would have followed through on his promise to shut it down. Edney responded that the camp primarily functions as “an important propaganda tool.” He argued the Obama administration has in fact “systematised” the culture of torture normalised under George W. Bush, for instance by disallowing victims of extraordinary rendition from suing Washington for torture suffered overseas.

Edney was also critical of “lazy” media and academics who have persisted in “slotting events into a sort of juicy clash of civilisations story,” as exemplified by mainstream media coverage of Anders Behring Breivik’s terrorist attack in Oslo. He killed 69 people in July, avowedly to protect Europe from Muslims. Edney said, “as soon as the bomb went off, media organisations began reporting on jihadist organisations.” This, he said, “fit perfectly the story we have all been telling each other since 9/11 that who else, who else could be so hateful, so crazy, so disrespectful of life but Muslims.” He pointed out that though Breivik is a white Norwegian Christian, “we don’t hold Christians or conservatives or liberals responsible for Brievek’s despicable acts.”

He said that “since September 11 2001, race, ethnicity, and religion have become proxies for suspected terrorist activity, which in turn has become a pretext for the application of Canadian immigration laws in an unequal manner towards Arabs, South Asians, Muslims and so on.” In an apparent nod to Bill C-4, the anti-refugee bill that the Conservatives tabled on Tuesday despite widespread condemnation, he noted that “we just have to listen to media descriptions coming out of Ottawa when we talk about refugees today. We call them queue jumpers and potential terrorists.”

Edney also expressed anger at the public’s willingness to be lulled into complicity. He described the transfer of the prisoners to Guantanamo “in rows in aircraft, hooded and shackled for transportation across the Atlantic” as similar to eighteenth century slave ships. He maintained that for “the watching world, no knowledge of international humanitarian conventions is needed to understand that what was being witnessed was simply unlawful.” He blamed public apathy for “allowing anti-Muslim sentiment to become part of our mainstream conversations.” He said, “I say to you we cannot tackle manifestations of intolerance, unless we learn and understand how the constant use of fear pervades our everyday life, and how that fear is being used to influence how you and I think and how you and I act. It’s that same manipulation of fear that has allowed military escapades into countries beyond those who bombed the twin towers. It is that same message that has been exploited by participating countries to reduce civil liberties and infringe upon human rights by allowing such places as Guantanamo Bay to exist.”

The need for action had been a prevailing theme throughout the lecture. Edney returned to it at his lecture’s close: “Not only does it [Guantanamo] continue to exist, they continue building it. Guantanamo is going to be there for a long, long time, unless you do something. Unless you really do something about it.” He concluded that “the only crime equal to wilful inhumanity is the crime of indifference, the crime of silence, the crime of forgetting.”

In that vein, we cannot afford to forget that Guantanamo Bay’s precedents in the West include Canada’s own internment camps, built in BC expressly to detain Japanese-Canadians during WWII. Similarly, Bill C-4’s predecessors include the Chinese head-tax policy.

This evening The Star announced that Wendy Babcock was found dead yesterday in her home.   Wendy would have entered her third year of law school at Osgoode Hall this Fall.  She gained notoriety given her background as a homeless teenage prostitute (she would say “sex worker”) before entering law school.

Third-year students expressed frustration today after Toronto area articling position offers closed when many were still waiting for a job.  Wendy recently asked me whether she should consider changing her name for law firm applications, because she was apprehensive about what law firms would think about her background.   The Eye Weekly once did a piece on her entitled, “All that she can’t leave behind,” and I responded that her experiences were what made her special.

Knowing the advocacy work that I’ve been involved in she also questioned my career path, asking me why I wasn’t practicing human rights law.

Wendy will live on in memories, and through the social media footprint she’s left behind (her “memoranda”).  Coincidentally, I just viewed this TED video earlier today:

Here are some of the sites you can find out more about Wendy:

Wikipedia Page

Facebook Fan Page

CBC Interview

Personal Blog

From the Stroll to Law School

W.H.O.R.E.

Wendy Babcock - a site created post-mortem by her friends

And finally, here is her last note posted on Facebook, giving us some insight into a controversial subject currently being deliberated by the Supreme Court of Canada in Bedford v. Canada:

Can A Person Be A Sex Worker Rights Activist While Not Enjoying Sex Work Themselves? (ROUGH DRAFT)

by Wendy Babcock on Wednesday, 03 August 2011 at 19:28

I have to get something off my breasts… er… I mean chest. At the risk of offending the pro sex positive feminist movement (which I have no inclination of doing) I have to admit that as a sex worker rights activist, and more so a former sex worker, I have never enjoyed sex work. In fact I am remorseful that sex work is how I lost my virginity, I regret that at 15 I entered sex work, and I despise the fact that I learned about my sexuality through sex work while the majority of other girls my age were discovering theirs in the school yard – usually with kids their own age.

For me, sex work was something I did to survive to get me through the years when I was homeless and too young for a full-time job, general welfare, youth shelters, and food banks. I did NOT engage in sex work because I wanted to express my sexuality, bring pleasure to others, or any of the other reasons pro sex feminists have for engaging in sex work. Not that I’m condemning them for their choice or suggesting that their decision was not a well thought out choice to engage in sex work. I’m just saying that my reasons for being involved in sex work were different. How could I have gone into sex work for any of those aforementioned reasons without first discovering my own sexuality – let alone be comfortable with it? Hell, I never even kissed another person before I headed out to my first call in Mississauga to meet a business man who would pay me money for my virginity. I did not enjoy sex work as a teenager nor did I enjoy it as an adult. There was always the fear of a bad client, a broken condom, and the judgment of johns regarding my appearance (which includes having a few too many of them comment on my stretch marks, cellulite, and a whole slew of other insecurities that unfortunately we as woman must deal with – thanks to the airbrushing of models in magazines like Vogue, Glamour and Maxim), which would be reviewed and commented on by many “johns”. I didn’t enjoy the stigma, the fact that I had to hide my profession for fear of being socially isolated, teased, and worse – arrested.

Had I enjoyed sex work I wouldn’t have quit doing sex work and taken a job that didn’t require me to be sexual with the people I serviced when the opportunity presented itself. Yet I still consider myself to be a sex worker activist, one that promotes the decriminalization of prostitution. And do I think that not getting pleasure from sex work diminishes or sets the sex worker rights movement back? Hell no, in fact I believe it enhances it. Yet our voices are not heard in the sex worker rights movement, as it is universally falsely believed that current or former sex workers who dislike their previous or current occupation have no place in the sex worker rights movement.

I remember when I first got involved in sex worker rights and was a naively impressionable young woman. I did a talk show for AM 680 (the Bob Oakley Show) and when I mentioned that I didn’t like sex work myself I was chastised by fellow activists. “How will anyone understand why decriminalization is important if you keep telling interviewers that you don’t like sex work?” “Don’t tell people you don’t like sex work, if you want to do that you have no business speaking for sex worker rights” and “You are discounting everything other sex worker rights activists are saying!”

Stunned and not wanting to upset anyone as I felt really passionate about the need to decriminalize sex work I kept my mouth shut about my true feelings and instead pretended that sex work was this revolutionary way for me to reach my true sexual potential. And please don’t get me wrong, it is for some sex workers, for those sex work can be freeing, empowering, and a slap in the face to the misogynistic notion that men are the ones with the sexual power and women should just submit.

However, not all of us sex workers feel this way. In fact in my 8 years of working with street involved sex workers very few expressed that this was the way they felt as many of them were survivors of violence, ripped off by clients, faced arrest and were harassed on a regular bases. Many of them did not feel represented in the sex worker rights movement. This is an absolute shame as if anyone, ANYONE should feel they belong in the sex worker rights movement it’s the street sex workers who face the brunt of criminalization, social isolation, stigma, and discrimination. Yet, when sex worker rights are talked about it is usually the overtly privileged sex workers, the high end sex workers, the ones who chose sex work as a legitimate occupation over other employment choices that they could have made. These are the sex workers who work in safer environments, the ones who work independently who don’t have to give any of their earnings over to a boyfriend or agency, the ones who work from their own or shared establishments, the ones who have the luxury of choosing where, when and who they work with. These do not tend to be the sex workers who see sex work as their only means of survival – who don’t have (or are not aware) of other employment options. So then, why if it is street involved sex workers who feel harshest effects of criminalization not heard when it comes to the question of sex worker rights and decriminalization?

I can’t answer that question, for I do not know the answer. What I do know is that we, while acknowledging my own privilege at having my voice heard in this movement, as allies for the sex worker rights movement have an obligation to our brothers and sisters who face a much higher rate of isolation than us must embrace sex workers that do not feel that they would stay in sex work if given the opportunity to be employed in another profession.

Back to my question, Can A Person Be A Sex Worker Rights Activist While Not Enjoying Sex Work Themselves? I say, ABSOLUTELY! Just because a person does not enjoy sex work does not mean that they have nothing to add to the decriminalization debate. Since when does not liking your job mean that you can’t (or shouldn’t) speak up against the barriers that make your trade MORE unenjoyable – even distasteful? Personally, I believe that any debate about sex worker rights should be more diverse than just between the people who utterly despise the profession and want it criminalized to the people that love their profession and want it decriminalized to include the people who neither like it nor avoid it but can justifiably see that things still need to change. There is nothing worse than hating your job and feeling like you have no voice in changing things. Worse still, if you hate your job, the isolation, stigma, criminal records, and other legal repercussions (such as fearing custody of your children, ability to retain status in your chosen country, etc.) does nothing to assist those sex workers who would prefer to leave the profession. I may have disliked providing sexual services for money but that shouldn’t disclude my voice (or others) that the laws that keep sex workers working underground. Personally I think ALL voices need to be heard. What do you think?

Enjoy the reading.

To be sure, generalised public discomfort around the niqab did inform most mainstream debate about the decision. However, in this paper I want to shift the discussion away from the Huntington-esque clash-of-civilisations characterisation advocated by Fatah to a more considered analysis of both the specific reasonings and the broader implications of the judgement. I argue here that the judgement actually signals a substantive attempt by the OCA to address some of the systemic inequities that entrench the pervasiveness of gendered violence in society.

FACTS AND HISTORY

The facts of the case are distressing, but not atypical for sexual assault cases. The complainant, N.S., alleged that between the ages of six and 11 she had been repeatedly sexually assaulted by her uncle and her cousin, the accused. In 1992, when she was 16, N.S. disclosed the assaults to a teacher, but the accused were not charged until 2007.

In 2004, as part of her practice of Islam, N.S. began wearing the hijab, a headscarf, and niqab, a veil that covers her face, whenever in the presence of males who are not her direct relatives. At the preliminary inquiry in 2008, after electing trial by judge and jury, both accused men sought an order that would require N.S. to remove her niqab before testifying. The preliminary inquiry judge ruled in favour of the accused.

FRAMEWORK FOR PRELIMINARY INQUIRY JUDGES

In direct contrast to that histrionics that has marred public debate about the niqab, Doherty J.A., writing for a 3-0 Court of Appeal, began the judgement by describing the witness’s freedom of religion and the accused’s right to make full answer and defence as “apparently competing” interests (para 10). The adverb is easy to miss, but given the extensive media coverage the case had received, it suggests a conscious effort by the court to be as balanced as possible. In any event, the measured language comes out of entrenched case law that has clearly established that “no Charter right [can] be treated as absolute” (para 47), which principle finds its most authoritative articulation in the ubiquitous Oakes test.

Further, the court did acknowledge that “The wearing of a niqab in public places is controversial in many countries, including Canada. The controversy raises important public policy concerns that have generated heated debate” (para 41), but then declared that “Those difficult and important questions are not the focus of this proceeding and cannot and should not be resolved in this forum” (para 41). As a consequence, the court was able to focus its energies on setting out the approach for reconciling the rights of the parties concerned, instead of getting mired in public disputes over the semiotics of niqab.

First, the court held that, as per Syndicat Northcrest v. Amselem, 2004 SCC 47, the preliminary inquiry judge must begin by determining whether the witness’s choice to wear the niqab is religiously motivated and whether the witness holds those religious beliefs sincerely. Though the Amselem test is problematic to the extent that it mandates the rating of one’s spiritual fortitude, the test’s threshold is not prohibitively high. Certainly, it was more expansive than the assessment set out by the preliminary inquiry judge in the prior proceedings, who argued that since N.S. had taken off her niqab to have her photograph taken by a female photographer for her driver’s licence, her religious belief was “not that strong” (quoted at para 7). The Court of Appeal clarified at para 68 that:

A court cannot [...] reason that because a person has made exceptions to her religious beliefs in the past, or perhaps has simply failed to follow her religious practices in the past, that her present assertion of those beliefs is not sincere. Past practice cannot be equated with present belief. Few among us who have religious beliefs can claim to have always acted in accordance with those beliefs. Past perfection is not a prerequisite to the exercise of one’s constitutional right to religious freedom.

If the judge is satisfied that the witness has advanced a valid religious right claim, the judge must then determine on the facts of the case the extent, if at all, to which the niqab may affect the cross-examination. The onus here is on the defence to demonstrate an air of reality to claims that the witness’s wearing niqab “would impose an impediment on cross-examination that was more than minimal or insignificant” (para 71), as may arise if the defence contends that the witness’s face must be exposed because her identity is at issue.

When the judge is confident that both parties’ claims are sufficiently engaged, the judge must then attempt to reconcile the rights by giving force to both. This balancing of interests will require a contextual analysis, which in turn will require that the judge take broader constitutional values and societal interests into account. All the interests at stake may not be able to be given full voice, but they should be acknowledged and considered in arriving at an appropriate order (paras 79-83). Further, as part the reconciliation process, preliminary inquiry judges have the option of employing such “constructive compromises” as are constitutionally permissible. These might include an order that the court be closed to all male persons other than the accused and his counsel, which is keeping with several provisions of the Criminal Code, particularly ss. 486, 486.1, 486.2, which already give judges discretion to close the proceedings to the public. Alternatively, where the witness has indicated she wears different styles or fabrics of niqabs, the judge may call upon the witness to wear her niqab in a way that “least interferes with the trier of facts’ ability to assess her demeanour” (para 86).

Finally, the court admitted the possibility that efforts to reconcile the rights may fail and the witness will be required to remove her niqab when testifying (paras 88-89).

In short, the court stressed the need for a case-by-case assessment. The assessment will have draw not only on the facts of the case, but also on whether the claim is being made at the preliminary inquiry or trial stage, and whether there is a jury. Each scenario will raise slightly different concerns. The court affirmed that bald assertions of a right to demeanour evidence are unlikely to be sufficient at the preliminary inquiry stage (paras 97-102).

GENDER EQUALITY

In its analysis, the court outlined numerous constitutional values and public interests at stake, such as the court’s truth-seeking function, the negative impact of religious stereotyping, access to justice, the contested value of cross-examinational evidence, and the transparent operation of the criminal justice system (paras 79-82). However, in light of Fatah’s contention that the court’s decision makes a mockery of gender equality, I want to focus on that aspect of the judgement. I will show that it in fact marks an important step forward in safeguarding the rights of sexual assault claimants, who have historically been disadvantaged by the criminal justice system. Not only are sexual offences severely under- reported, they have lower conviction and higher acquittal rates than other violent offences.

At para 45, the court made explicit what should already be obvious:

N.S. is facing a most difficult and intimidating task. She must describe intimate, humiliating and painful details of her childhood. She must do so, at least twice, in a public forum in which her credibility and reliability will be vigorously challenged and in which the person she says abused her is cloaked in the presumption of innocence. The pressures and pain that complainants in a sexual assault case must feel when testifying will no doubt be compounded in these circumstances where N.S. is testifying against family members.

Later, when assessing the value of cross-examinational evidence, the court wrote, “The criminal justice system assumes that the truth is most likely to emerge through a public adversarial process. Face-to-face confrontation, especially between an accused and his accuser, is a feature of that adversarial process” (at para 60). What we are given, in other words, is a description of a justice system whose very processes work to trigger and further traumatise survivors of sexual assault.

Little wonder then that so few survivors of sexual assault, regardless of their attire, report the crimes. Fewer still challenge their attackers in court. As the court observed, “It should not surprise anyone that N.S., when faced with this daunting task, seeks the strength and solace of her religious beliefs and practices” (para 45).

Moreover, as the Women’s Legal Education and Action Fund has noted, “The demand that a sexual assault remove her niqab [occurs] in the context of the long history of sexual assault complainants being harassed, re-victimized, humiliated and intimidated, especially at the preliminary inquiry. Such tactics have long been used to shut down prosecutions or prevent women from reporting sexual assault in the first place.”

Thus, the following reasoning by the court at para 80 should be lauded for the effort it makes to address that history of systemic repression:

N.S. is also a woman testifying as an alleged victim in a sexual assault case. Permitting her to wear her niqab while testifying would recognize her as an individual and acknowledge the particularly vulnerable position she is in when testifying as an alleged victim in a sexual assault prosecution. Adjusting the process to ameliorate the hardships faced by a complainant like N.S. promotes gender equality.

SIGHT

As a final point of analysis, I want to stress that the discourses used to pressure the complainant into unclothing herself in front of her alleged attackers were predicated on the assumption that cross-examinations provide the most crucial form of evidence in trials. Not only is that assumption often untrue, it is deeply ableist.

To begin with, while the Charter does protect the accused’s right to a fair trial, there is no independent constitutional right to cross-examination. As the court acknowledged, “credibility assessments based on demeanour can be unreliable and flat-out wrong, [such that] appellate courts have repeatedly cautioned against relying exclusively or even predominantly on demeanour to determine credibility” (para 55). The court even held that allowing the complainant to wear her niqab could advance the truth seeking function of the criminal trial, since a complainant who normally wears the niqab and is commanded to unveil cannot be expected to “be herself” on the stand: a trier of fact might well misinterpret her embarrassment and discomfort as uncertainty and unreliability (para 81). The court was therefore clear that demeanour evidence cannot be a substitute to critical and substantive analyses of the entire body of evidence.

In fact, there are numerous evidentiary rules that restrict the use of cross-examinations. Besides the willingness of courts to admit statements made by declarants who do not testify at trial at all, as per s. 715 of the Criminal Code and some common law hearsay exceptions, s. 486.2 (1) of the Criminal Code provides that in proceedings involving “a witness who is able to communicate evidence but may have difficulty doing so by reason of a mental or physical disability, [the judge] may order that the witness testify outside the court room or behind a screen or other device.” Additionally, the Court of Appeal here noted the example of witnesses who testify in dark sunglasses because of medical conditions that requires them to shield their eyes from the bright lights in courtrooms (para 42). Following that reasoning, the court was able to point out at para 55 that a witness’s niqab does not preclude the trier of fact from considering her tone of voice or how she responds to questions, which are also essential aspects of cross-examination assessments.

Despite all this, in his assessment of the importance of cross-examinations, the Superior Court judge held that “visual aids are important because the absence of visual clues is the cause for complaint” (quoted at para 15). Yet as Bradley Berg and Rahat Godil, co-counsel for the Canadian Civil Liberties Association, have pointed out, “the right to make full answer and defence is not infringed when a witness is blind, or when a witness’s mouth occasionally twists into a grimace due to a congenital defect.” In other words, we cannot privilege sight to such an extent that we forget vision is afflicted with its own inherent limitations and biases. Efforts to make courts more accessible will have to undo those underlying assumptions.

See here for a summary of the facts and the ruling