Can a witness in a criminal trial wear a niqab while testifying?
Supreme Court sets out the approach to determining whether a witness can wear a niqab while testifying
N.S. was a witness in a criminal case in which her cousin and uncle were charged with sexually abusing her when she was a child. On the first day of the preliminary inquiry, the defendant objected to N.S. wearing her niqab while testifying. He asserted a right to “demeanour evidence”, including N.S.’s full facial expressions.
The Supreme Court’s Decision
The issue went to the Supreme Court of Canada, which ruled that the right of a witness to wear a niqab while testifying must be decided on a case-by-case basis, having regard to a four-part test:
- Would ordering the witness to remove the niqab while testifying interfere with her religious freedom?
- Would permitting the witness to wear the niqab while testifying create a serious risk to trial fairness for the accused?
- Is there a way to accommodate both rights and avoid the conflict between them?
- If no accommodation is possible, would the positive effects of requiring the witness to remove the niqab outweigh the negative effects of doing so?
The Court sought to balance the witness’ right to religious freedom under s. 2(a) of the Canadian Charter of Rights and Freedoms with the defendant’s right to a fair trial under sections 7 and 11(d) of the Charter.
The Court held that a trial judge must assess whether there is a way to accommodate both sets of rights and to avoid the conflict between them, including by utilizing reasonably available alternative measures that would allow the witness to follow her religious convictions while still preventing a serious risk to trial fairness. However, the Court held that, even where a witness has a sincere religious belief, she will be required to remove her niqab if it poses a significant risk to the right of a defendant to a fair trial. Factors affecting trial fairness will include whether the witness’ proposed evidence is central to the trial, and whether the evidence is contested.
Emma Phillips was co-counsel for the Intervener, Criminal Lawyers’ Association