Supreme Court splits in messy decision on face veils

Balancing rules are akin to parking a tank on one side of a seesaw, writes Emmett Macfarlane

CP/Adrian Wyld

Ask observers to sum up Beverley McLachlin’s reign as chief justice of the Supreme Court of Canada and you’ll hear a lot about consensus building. Her modus operandi in difficult Charter of Rights cases has usually consisted of avoiding one-sided proclamations of principle in favour of meting out compromise and getting her colleagues to join her on a moderate, often minimalist, judicial path.

Sometimes the result is praiseworthy, as it can result in the Court speaking with one authoritative voice and setting out some constitutional ground rules while still throwing difficult issues back into the democratic arena for further deliberation. But unanimity is not always possible. Sometimes the consensual, compromise approach can result in murky, confused decisions. Sometimes the Court is confronted with irreconcilable rights conflicts. Sometimes even intricate, multi-step legal tests aren’t enough to overcome a clash of values and principles.

Today’s majority decision on whether a Muslim sexual assault complainant must remove her niqab (face covering) when testifying in court is one of those times. Either the complainant’s genuine religious beliefs are compromised, or the accused’s right to a fair trial might be infringed.

The tension between these two constitutional guarantees split the Court into three camps, with a four-judge majority declaring that, where there is no serious risk to trial fairness, a witness may wear a niqab. Two judges, in a decision written by Justice LeBel, argue that witnesses should never be permitted to wear a niqab while testifying, while the lone dissenter, Justice Abella, makes the case that the risks posed to trial fairness are overblown.

Although adopting nearly polar opposite positions on which constitutional rights ought to win the day, the LeBel and Abella judgments both serve to underscore the extent to which the majority’s attempt to develop “balancing rules” — conditions for when the niqab may be worn – are unworkable.

How do we determine whether there’s a serious risk to trial fairness? One important factor, the majority says, is whether the testimony is contested, a notion that would appear to instantly preclude the vast majority of sexual assault cases.

As a result, the majority’s “balancing rules” are akin to parking a tank on one side of a seesaw. Testimony in criminal trials is inherently contestable; that’s the very idea behind the principle of cross-examination at the core of the defendant’s rights in this case.

The other major element of the majority’s balancing rules is to assess whether the benefits of forcing the complainant to remove her niqab outweigh the negative consequences of doing so. The majority would have us believe that this is something that could be assessed on a case-by-case basis. The reasons of LeBel and Abella make clear why that is an unconvincing proposition.

According to LeBel, the integrity of the justice system depends on effective communication of witnesses. “Wearing a niqab, on the other hand, does not facilitate acts of communication. Rather, it restricts them. It removes the witness from the scope of certain elements of those acts on the basis of the assertion of a religious belief in circumstances in which the sincerity and strength of the belief are difficult to assess or even to question.”

While respectful of the religious rights at stake, LeBel believes that privileging religious freedom in this context would be inconsistent with the public nature of courts and common law tradition. Worse, it may result in “reading the most basic rights of the accused out of the criminal law and of the Charter.” For that reason, he argues, no exceptions should be allowed.

Justice Abella, alone in dissent, is unconvinced by this sentiment: “I concede without reservation that seeing more of a witness’ facial expressions is better than seeing less. What I am not willing to concede, however, is that seeing less is so impairing of a judge’s or an accused’s ability to assess the credibility of a witness, that the complainant will have to choose between her religious rights and her ability to bear witness against an alleged aggressor.”

The McLachlin and LeBel judgments’ assumption – and indeed McLachlin herself uses the word “assumption” to describe the justice system’s belief about the importance of seeing a witness’ face (while dismissing social science evidence presented in the case) — that the face veil poses a great obstacle to assessing witness credibility begins to fall apart when we consider a myriad of analogies.

Witnesses who require translators, who have suffered disfigurement or facial paralysis, who are blind or deaf, who are particularly beautiful or ugly, very old or very young — all of these factors can have tremendous influence on our perception of someone’s truthfulness. All of these serve as obstacles to our limited ability to determine the veracity of what someone else is saying. In some ways, a face veil could just as easily improve such assessment, as the focus will be more on what is being said than on how one looks saying it.

A more fundamental concern, however, is that by forcing sexual assault complainants to choose between sincerely held religious beliefs and testifying against their attackers, the Court risks more victims refusing to come forward. Faith in our justice system is a two-way street; victims deserve confidence that the system will treat them fairly, too.

You or I may believe the niqab is an offensive anachronism, predicated on absurd patriarchal notions. But that’s not the point. The point is the niqab is central to the religious convictions of the individual, to their sense of self and their own dignity. It is precisely why the Court has rejected the idea that it would ever analyze the relative value or sensibility of religious practices in its approach to Charter rights, and instead only focus on the sincerity of the beliefs in question.

So long as the decision to wear the niqab is made freely, it ought to be respected from a rights perspective. And in weighing so heavily the risks to a fair trial over not just the latitude given to religious freedom, but also the deleterious and societal effects of providing insufficient protection for them, the majority has handed trial courts a messy confluence of rules likely to do more harm than good.

Emmett Macfarlane is an assistant professor of political science at the University of Waterloo. You can follow him on Twitter @EmmMacfarlane




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Supreme Court splits in messy decision on face veils

  1. I think they should have to uncover their faces because if they dont: then every other citizen whether they are male or female, should have the right to cover their faces while on the stand too. It woukd only be fair right?

  2. Great piece. I do think Abella’s argument falters a little in her comparison between the niqab and other obstacles to perfect assessment of a witness’s credibility, such as paralysis or language, since those are insurmountable in fact, whereas the niqab is only insurmountable as an obstacle inasmuch as it reflects a perceived religious compulsion. In other words: you can take off a niqab, and so it’s a choice to put one on (even if that choice is understood by the chooser to be a religious compulsion). There are good reasons to extend the existing ‘exceptions’ to face-to-face confrontation to include the niqab, but it’s not quite right to suggest, as Abella appears to do, that the niqab is just another member of an already-existing category of exceptions.

    One thing I wish the McLaughlin and Abella decisions had addressed is whether, following a trial court determination that the niqab may be worn (or in any given case, per Abella), the fact-finder is entitled to take the wearing of a niqab into account in assessing credibility – and whether, accordingly, counsel (including the crown, depending on the case) could argue to the fact-finder that the witness’s evidence should be discounted because her face could not be seen.

    • Interesting question. Might it boil down to “you’re free to wear the niqab but do so at your own risk”? (i.e. the risk that you will be taken as less credible). And would that, in turn, impair the entire point of providing protection for the right in the first place? Because I’d still fear witnesses/victims would be quite hesitant to come forward if that were the case.

      • Right. In the U.S., the fact-finder is not allowed to draw any inferences from the fact that a witness has invoked a Fifth Amendment right not to testify, since drawing a negative inference would negate the very protection afforded by the right. The comparison isn’t exact here, but the principle is similar.

        My problem is that even Abella doesn’t suggest that the niqab poses *no* challenge to credibility assessment as a matter of fact; she simply argues that it’s been overstated, and is outweighed by the costs of a ban. If that’s the case – if wearing a niqab can in fact go to credibility to at least some degree – then the threat to an accused’s fair trial right does seem to be non-trivial. And in a different case – where it’s the defendant herself who wants to testify in a veil – it would put the crown in the position of attacking credibility on the basis of a protected Section 2 right – which is at the very least awkward, and might well be prohibited (I would think).

    • You appear to have read the case and thus currently have me at the advantage, but I would think that the matter would go to s. 1 reasonability alone. The distinction that headgear may be removed isn’t the consideration, the consideration is that the courts have shown an ability to adjust when certain obstructions to regular viewing of the face exist.

      FWIW, from media coverage it looks like I successfully predicted the result (will need to double check by reading the case). Gonna be rubbing it in on some people big time!

      • You’re right as to the relevant consideration – my point is just that there’s a qualitative difference between the niqab and the other examples of obstructions to regular viewing of the face (or at least that there’s a reasonable argument that there’s a qualitative difference), and that therefore Abella’s conclusion isn’t quite as much of a QED as I read her opinion to suggest (though it was based on a quick read, so that might not be fair). In other words, if a niqab is qualitatively different, then it isn’t simply a matter of extending an existing exception; instead, the task is to say “there is already an exception for a roughly analogous category of obstructions, and while the niqab doesn’t fit squarely within that category, we should extend the exception in this case because X” – where X is the balance of her analysis regarding the relative weight of confrontation-versus-access.

        I recognize, by the way, that this criticism is extraordinarily narrow and goes much more to judicial opinion-writing (or reasoning) than to subject matter, and so is really of interest only to folks who are as hyper-nerdy about it as I am.

        (Decision available here btw, if folks are interested http://scc.lexum.org/decisia-scc-csc/scc-csc/scc-csc/en/item/12779/index.do )

  3. I recognize Abella’s concerns, but witnesses are reluctant or hesitant to testify for any number of reasons, religious and otherwise. I think the balanced approach of the majority decision is fair.

  4. FIRST, there is NO RELIGIOUS prescription in the qur’an for covering a female’s face in public, only to cover one’s chest with its veils. The ‘CHEST’ is NOT the FACE. The bullshit most have been led to believe is just that, a BIG LIE.

    SECOND, this puts in peril every single Canadian, regardless of its religious affiliation. Can anybody imagine if a salafi couple lives next to a non-desirable male bachelor, a quiet guy, or a sexy single female, and if this salafi couple doesn’t want this individual as a neighbour, the salafi muslima can press false criminal charges and the poor innocent individual will drown in lawyer’s fees, will lose its home etc. This poor individual will NEVER have the opportunity of seeing the face of its accuser nor will the jury, judge…

    Religious or said religious accomodations have no place in the courtroom. Soon, muslim men will be able to ask for the removal of all females from a coutroom on the basis they are not allowed to be in the presence of females that are not covered up with a tent.

    • Allow me to be the first to tell you that you are completely insane.

      • Based on what? What did she say that wasn’t true?

        • the SECOND one. stop such insane imagination. be realistic. go visit many muslim countries, especially those multiracial with large nonmuslim majority – go to their courts and see the reality. did any nonmuslim neighbor face false criminal charges? were the women removed from the courts?

  5. There’s nothing to balance here. Our Canadian legal tradition counts, the filthy niqab does not. Death to the disgusting niqab, death to Shariah law, death to Islamist infiltration of our country though immigration. Long live our Western, Judeo-Christian Canada. Those who don’t like it are free to leave.

  6. Give them an inch and the bad in the lot as any culture would have will
    take a mile. In other words if I am a white, female gangster, I may
    convert to being Muslim just so I can do some mischievous deed to throw my own
    race into total confusion and thereby render it into a hopeless state of
    defense.

    This is something members of the Muslim faith who have immigrated to this
    free world for reasons of a better life should know they have amongst themselves
    to work out so as to properly adjust within other world cultures living within
    one nation.

    The Canadian courts have made a grave mistake in the civilized world and
    have failed no only other Canadians but you as well in your dreams of living
    out your lives in peace.

    They have by this their own decision lent headway for the establishment
    of one class of people above all others with special needs and rules.

    A proper society merges together as one and the courts should decide on
    track records of civility over those unproven and still buried in an ancient
    past.

    I guess we can not stop fate from taking it’s course as we have seen great
    societies of ancient past demonstratively fall as the result of such
    likewise urges of nonsense.

    • Too late, you are already confused, Mr. Elliot.

  7. Take the veils off. This is Canada. We have our own history, our own court system, and our own customs. If Muslim or other immigrants want to be treated as in their own countries, they should go home. They come to Canada for the welfare, the benefits, the safety, the security. They should integrate and follow our customs. Or else, they can immigrate to somewhere like Peru, where there is no welfare, no socialism, and, coincidentally, no muslims.

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