R. v. S.(M.), 2013 ONCJ 209

WARNING The court hearing this matter directs that the following notice should be attached to the file: A non-publication and non-broadcast order in this proceeding has been issued under subsection 539(1) of the Criminal Code . This subsection and subsection 539(3) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection (1), read as follows: 539. Order restricting publication of evidence taken at preliminary inquiry.—

(1) Prior to the commencement of the taking of evidence at a preliminary inquiry, the justice holding the inquiry (

a) may, if application therefor is made by the prosecutor, and (

b) shall, if application therefor is made by any of the accused, make an order directing that the evidence taken at the inquiry shall not be published in any document or broadcast or transmitted in any way before such time as, in respect of each of the accused, (

c) he or she is discharged, or (

d) if he or she is ordered to stand trial, the trial is ended. . . .

(3) Failure to comply with order.— Everyone who fails to comply with an order made pursuant to subsection (1) is guilty of an offence punishable on

summary conviction. Citation: R. v. S.(M.) , 2013 ONCJ 209 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — M--d S. and M--l S. Before Justice N. Weisman Heard on August 12, 2011 and November 12, 2011 Reasons for Ruling on Voir Dire released on April 24, 2013 J. Cameron ............................................................................................................. for the Crown E. Battagalia ............................................................................................ for the accused M--d S. D.

Usher............................................................................................................... for the accused M--l S. REASONS FOR RULING ON VOIR DIRE Weisman, J.:

For religious reasons, N.S. wishes to wear her niqab or veil while testifying in open court against M---d S. and M---l S. who she alleges sexually assaulted her over a five year period from 1982 to 1987, commencing when she was just six years of age. She is now thirty- seven. The accused object to this as infringing upon their fair trial rights including the right to make full answer and defence.

Specifically, they claim that if only the complainant’s eyes are visible, the witness’s demeanour cannot be observed, which will impair both effective cross-examination, and the trier of fact’s ability to assess her credibility. There is accordingly a conflict between N.S.’s constitutionally-protected right to freedom of religion, and the accused’s equally-protected right to trial fairness. As directed by the Supreme Court of Canada (the “Supreme Court”) in R. v. N.S. [1] I have conducted a Dagenais [2] /Mentuck [3] inquiry to resolve this impasse. This requires that I determine the following four questions: 1 .

Would requiring the witness to remove the niqab while testifying interfere with her religious freedom? 2 . Would permitting the witness to wear the niqab while testifying create a serious risk to trial fairness? 3 . Is there a way to accommodate both rights and avoid the conflict between them? 4 . If no accommodation is possible, do the salutary effects of requiring the witness to remove the niqab outweigh the deleterious effects of doing so?

Prior to proceeding with the voir dire, for purposes of identification, I requested the complainant to remove her niqab in private in the presence of the female police officer in charge of the investigation. The officer compared the photograph on N.S.’s driver’s licence with the exposed visage of the person claiming to be N.S. who she could recognize from her earlier investigation of this matter. The officer testified that the person before the court was indeed the complainant N.S. The Dagenais/Mentuck Framework: 1.

Would requiring the witness to remove the niqab while testifying interfere with her religious freedom? N.S. was raised by her family as a devout practicing Muslim. She fasts at Ramadan and duly answers the call to prayer five times per day. Her life is governed by the Muslim law of Sunnah which requires her to follow both the Koran and the way of the prophet Mohammed. She has been wearing her niqab for the past ten years. Her religious beliefs require her to do so to prevent creating a sexual atmosphere when men who are not her relatives see her uncovered face.

Wearing her niqab while testifying about the traumatic sexual experiences she suffered in her youth would comfort her in the solace of her religious beliefs and practices. In her words, “My religion is there to help me in a psychological way, in a sort of heart-warming way.” In order to establish a prima facie case under s. 2(

a) of the Canadian Charter of Rights and Freedoms (“the Charter”) [4] , N.S. must satisfy the court that her wish to wear her niqab in court is based on a sincere religious belief. In this regard, she recounted that because this life is temporary, one must do as much good in the world as they can, and be prepared to sacrifice oneself to that end. Wearing the veil in public is part of that process. She described her wearing of the veil as a matter of respect, honour and modesty. To remove it in public would be sinning. To testify in court without it would give rise to an overwhelming influx of negative emotions.

That said, she does remove her niqab when required, so that she can participate in various facets of society. She is employed as a driver. The photograph on her driver’s licence, which exposes her uncovered face, was taken privately by a female photographer. She was apparently unable to obtain a similar accommodation for her passport photograph. She will remove the veil when so required by police

officers and customs or immigration officials. She usually drives with her face uncovered because her car is private space and no sexual atmosphere is thereby created, but will wear her veil when stopped in traffic. On this evidence I am satisfied that N.S.’s religious beliefs are of long duration, and are an important part of who she is as a human being. She departs from these practices, so far as the veil is concerned, only if it is necessary for her to do so in order to pursue her livelihood and participate in certain facets of society.

I find that she sincerely believes that her religion requires her to wear her niqab in the presence of men who are not her relatives, while testifying in court. 2. Would permitting the witness to wear the niqab while testifying create a serious risk to trial fairness? In this regard, the Supreme Court says as follows, “The common law supported by the provisions of the Criminal Code, R.S.C. 1985 c. C-46 and judicial pronouncements, proceeds on the basis that the ability to see a witness’s face is an important feature of a fair trial.

While not conclusive, in the absence of negating evidence, this common law assumption cannot be disregarded lightly.” [5] I have heard no such negating evidence. N.S. was permitted to wear her niqab on the voir dire. She testified in a clear, articulate, confident manner. Neither counsel for the accused made complaint that their inability to see the witness’s facial gestures and other non-verbal cues impaired their ability to assess her demeanour and direct their cross-examination accordingly.

They did, however, point out that it is one thing for a witness to testify as to their religious beliefs and quite another to recount, and be cross-examined upon, the intimate details of the charges before the court. While demeanour is of some concern in the former, it is very much a concern in the latter. With this, I agree.

The Supreme Court finds that whether the ability to observe a witness’s face impacts upon trial fairness in any particular case depends on whether the evidence is uncontested and credibility assessment is not in issue. [6] In the matter before me, N.S.’s credibility is central to the Crown’s case as she is the only witness to the complained-of events so many years ago. I conclude that to permit N.S. to testify at this preliminary inquiry with her face obscured by the niqab will impair defence counsels’ ability to assess her demeanour, as well as the trier of fact’s ability to assess her credibility.

This will cause real and substantial risk to the accused’s rights under s. 7 and 11(

d) of the Charter to a fair hearing including the right to make full answer and defence. 3. Is there a way to accommodate both rights and avoid the conflict between them? The Supreme Court instructs the parties “...to place before the court evidence relating to possible options for accommodation of the potentially conflicting claims”. [7] The only option advanced by counsel was the one-way screen used to shield child victims from having to face their assailants in court while testifying, as authorized by s.486.2 of the Criminal Code of Canada [8] .

Such screens will not solve the dilemma before me since N.S. has no trouble seeing the faces of those she accuses. It is her face that she wants shielded from male persons in the courtroom who are not her relatives. Counsel for M--d did agree to the complainant testifying on closed-circuit television, as long as the witness’s face was clearly visible. N.S., however, still views this as creating a sexualized atmosphere. So far as accommodating the complainant by excluding men from the courtroom is concerned, I note that s. 11(

d) of the Charter guarantees everyone the right to a hearing that is not only fair, but is open; while s. 2(

b) guarantees freedom of the press and other media of communication. I cannot therefore bar male members of the media or the public at large from attending these proceedings. Moreover, all accused are entitled to counsel of choice be they male or female. I conclude that no accommodation or alternative measures are possible. The niqab is either worn at or removed for the preliminary inquiry. There is no middle ground. 4. Do the salutary effects of requiring N.S. to remove her niqab outweigh the deleterious effects of doing so?

The Supreme Court has ruled that the party seeking removal of the niqab must establish that the salutary effects of doing so outweigh the deleterious effects. [9] This is a proportionality inquiry akin to the final part of the test in R. v. Oakes [10] .

The effects on both sides can be on a personal level and on a societal one. On a personal level, N.S. asserts that testifying without her niqab would be a jarring, overwhelming negative experience. The usual stress of giving evidence in court and being subject to cross- examination will be compounded. Moreover, she feels that she is being forced to choose between her religious convictions and her desire to seek justice against those she claims to have done her egregious wrongs.

On a broader societal level, there is the risk that victims of sexual offences with religious beliefs similar to those of N.S. may be reluctant to report transgressions and turn to the justice system to redress their grievances. Perpetrators of crimes will go unpunished and public confidence in the administration of justice will be impaired. The two accused, on the other hand, both face possible loss of their liberty through lengthy terms of incarceration.

In fact, for the offence of having sexual intercourse with a female person who is not his wife and is under the age of fourteen years, M--d is liable to imprisonment for life. On a broader societal level, should the niqab impede effective cross-examination of the complainant by the accused’s counsel, they will not be able to assess the witness’s demeanour and tailor the thrust and direction of their questions accordingly. Wrongful convictions could ensue with resulting loss of public confidence in the justice system. The accused are not in jeopardy of losing their liberty in these proceedings.

The preliminary inquiry will determine only if the Crown can adduce sufficient evidence upon which, if believed, a reasonable jury properly instructed could find one or both accused guilty beyond a reasonable doubt. If not, they will be discharged. If so, they will be ordered to stand trial where they will indeed be in jeopardy of being incarcerated as aforesaid. Cross-examination of the Crown’s witnesses is nonetheless important in a preliminary hearing since a transcript thereof can be read into the record at the subsequent trial pursuant to s. 715 of the Code.

In addition, one of the purposes of a preliminary inquiry is to permit defence counsel to probe the strength of the Crown’s case by cross-examination of its witnesses. To permit the complainant in the matter before me to wear a niqab while testifying might hamper fulfillment of that purpose. Result: I am satisfied by the evidence I have heard and the submissions of counsel that N.S.’s wish to wear her niqab in court is based on a religious belief that is both sincere and strong. She could have had her day in court back in 2008.

She has chosen, however, to spend the last five years fighting for her right to freedom of religion, all the way to the Supreme Court of Canada. Permitting her to wear her niqab while testifying in court does, however, create a serious risk to trial fairness. She is the key witness in the Crown’s case. Her credibility is very much in issue and unfortunately, no accommodation of the parties conflicting Charter rights is possible. N.S.’s reason for wearing her veil in public is that it cuts off the possibility of creating a sexualized atmosphere.

The question is whether her veil in similar fashion masks her demeanour and blocks both effective cross-examination by counsel for the accused, and assessment of her credibility by the trier of fact. I find that it does. I am concerned that N.S.’s overwhelming negative emotions in having her face exposed to public view while testifying at the preliminary inquiry will adversely affect her ability to tell the truth as she sees it, resulting in a wrongful acquittal of the accused and consequent loss of public confidence in the administration of justice.

I am even more concerned, however, that her niqab will impair accurate assessment of her demeanour and credibility, resulting in wrongful convictions, loss of freedom for the accused, and loss of public respect for the justice system.

As the Supreme Court concludes, “At this point, however, it may be ventured that where the liberty of the accused is at stake, the witness’s evidence is central to the case and her credibility vital, the possibility of a wrongful conviction must weigh heavily in the balance, favouring removal of the niqab.” [11] Having followed the directions of the Supreme Court on this voir dire, I find that I am obliged to require N.S. to remove her niqab while testifying at the preliminary inquiry.

“Original signed by Justice N. Weisman” [11] Reasons para.44