Back in the early days of this blog, I talked about an Ontario court case involving a woman who did not want to be compelled to remove her niqab (a Muslim face covering) in order to testify against two of her family members who she accused of sexually abusing her over a number of years. I thought it was an interesting case for those of us interested in how to properly build a secular society that respects personal expression but does not kowtow to every religious cause under the sun. I said this at the time:
For once, I don’t have a clear-cut answer of what the court should do. On the one hand, testifying would have deleterious effects on the plaintiff and possibly cause her to lose her family and social life; it would most certainly deter other abused women from coming forward after they see that the consequence of speaking up is social isolation (and possibly more abuse). On the other hand however, allowing her to wear the veil not only violates the right of the accused to confront their accuser face-to-face, but implicitly assents to the practice of veiling women.
The case found its way to the Supreme Court of Canada, who handed down their decision this morning. I have, on several occasions, expressed my deep respect and admiration for Canada’s Chief Justice Beverley McLachlin, who wrote for the majority in the 4-2-1* decision, finding that while the Canadian Charter of Rights and Freedoms (equivalent to the U.S. Bill of Rights) does explicitly defend a person’s right to freedom of religion, it also explicitly defends the rights of the accused. As such, the decision prescribes a series of test questions that must be satisfied before requiring a woman to remove her niqab to testify.
The full text of the decision is here, and my own summary and analysis of the decision follows below the fold.
The majority decision
Summary: the preliminary trial judge may rule that a woman must uncover her face to testify, but must balance certain questions in doing so.
The central conflict within this case surrounds the Section 2 right of all Canadians to freely express their religious beliefs, with the right of an accused person to have a fair trial. The Crown argued that allowing someone to cover their face during testimony creates a situation in which relevant information, namely cues from facial expression, is missing from the jury’s ability to determine witness credibility.
Chief Justice McLachlin (writing for the majority) provides the following four-part test that judges should consider when deciding whether or not to order a woman to remove her niqab:
1. Is the objection based on sincere religious belief?
The pretrial judge in the original case said that the woman’s belief in the original case was not sufficiently strong, because she was willing to remove it in other circumstances (e.g., driver’s license photo, security screening). Chief Justice McLachlin found that the strength of a belief was not the relevant test, but rather judges should consider the sincerity of the belief. So for example, a woman who had never worn a niqab before cannot suddenly have a ‘come to Muhammad moment’ and cover herself in the courtroom.
2. Does the covering of the face seriously affect the fairness of the trial?
Judges must determine whether it would be meaningfully difficult to establish the credibility of the witness if her face were covered. This speaks specifically to the right of the accused to confront hir accuser, and would likely be based on whether or not the accused claims that seeing the witness’ facial expression during cross-examination (for example) is necessary. Again, the legal code and legal precedent seem to suggest that this is a required feature in the administration of justice.
3. Is reasonable accommodation possible?
Whenever two Charter rights are in conflict, the correct question to ask is whether or not a reasonable accommodation can be made that respects the rights of all parties. I am not personally sure what such an accommodation could possibly look like in this particular circumstance, but if the accused and accuser were able to arrive at some mutually-agreed-upon compromise, a judge should allow it.
4. Do the merits of compelling the witness to uncover outweigh the harms?
Justice McLachlin makes particular note of the fact that in addition to the per se harm of violating a person’s right to religious expression, an across-the-board requirement of all niqabis to remove their veil would have a ‘chilling effect’, making abused women less likely to come forward to confront their abusers (since they would be forced to expose themselves in a way they find unacceptable). However, judges must balance that harm with the possibility that the accused has rights, and that there is harm both to those rights and the administration of justice that is done when an exceptional right to cover one’s face is granted similarly across-the-board.
All in all, I find this ruling more or less typical of what I would expect from the McLachlin court. There is a presumption, from a popular perspective, that the rights of the accuser are fairly well safeguarded. Society tends to sympathize with the victim of a crime more than the perpetrator (although in abuse cases this is very much an open question), and so it is up to the courts to ensure that an accusation is not a de facto conviction, at least within the context of the law. Conservatives refer to this as “hug a thug” jurisprudence, but it is more properly referred to as a principle of fundamental justice. The current government is banging on the table and shouting about the rights of victims – this is a common canard from them – and in that climate the decision by the court to ensure that the accused party has the defense of law is to be expected.
I am similarly unsurprised that the court would leave it up to judges to exercise their discretion rather than provide a hard-and-fast ruling. This is, at least to my amateur observer’s eye, fairly normal behaviour for the court. It is also, if you’ll allow me to forecast wildly into the future, good news for an upcoming challenge of mandatory minimum laws for marijuana possession – the court doesn’t like it when judges’ hands are tied by legislation. Progressives who wish to decry this decision can at least find some comfort in the fact that an argument for judicial discretion is an argument against mandatory sentencing guidelines.
I will summarize the dissenting opinions, as well as some of my own reservations about this case, in a follow-up post.
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*There are two things that need to be noted regarding this number. First, it is a rare ‘split’ decision for this court, which rarely falls along the left/right ideological lines that are so commonly attributed to the United States Supreme Court. There are ideological splits within the court, to be sure, but they are not left/right splits. The second thing that is worth noting is that there are two dissenting opinions that go in opposite directions – this is explained further in a following post.