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