In a unanimous decision in October 2010, the Ontario Court of Appeal affirmed that a sexual assault complainant may wear a niqab, a Muslim facial veil, while testifying. The Muslim Canadian Congress had intervened on behalf of the two accused men who had requested the order that the complainant remove her niqab. Upon the judgement’s release, Tarek Fatah, founder of the MCC, argued that the decision made “a fool of the Canadian judicial system and values of gender equality”. In fact, the court had paid careful attention to balancing the witness’s freedom of religion and the accused’s right to make full answer and defence. To date, Fatah is perhaps the only person to so openly argue that allowing a sexual assault complainant to testify in front of her alleged attackers in the clothes in which she feels safest is a denial of gender equality. For some context, it is worth noting that Fatah has long been a vociferous advocate of a total ban of the niqab in Canada. His response to attempts in Quebec to ban the niqab was to proclaim, “I welcome the rescue of all Muslim-Canadian women.” The wholesale paternalism of his language is revealing: to the extent that Fatah wishes to counter gender inequities, his position has persistently emerged from a patriarchal perspective that infantalises Muslim women by denying their agency in making sartorial and religious choices for themselves, even such highly contested choices as the one to wear niqab.

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.