N.S. Appellant v. Her Majesty The Queen, M---d S. and M---l S., 2012 SCC 72

SUPREME COURT OF CANADA Citation: R. v. N.S., 2012 SCC 72, [2012] 3 S.C.R. 726 Date: 20121220 Docket: 33989 Between: N.S. Appellant and Her Majesty The Queen, M---d S. and M---l S. Respondents - and - Ontario Human Rights Commission, Barbra Schlifer Commemorative Clinic, Criminal Lawyers’ Association (Ontario), Muslim Canadian Congress, South Asian Legal Clinic of Ontario, Barreau du Québec, Canadian Civil Liberties Association, Women’s Legal Education and Action Fund and Canadian Council on American-Islamic Relations Interveners Coram: McLachlin C.J. and LeBel, Deschamps, Fish, Abella, Rothstein and Cromwell JJ.

Reasons for Judgment: (paras. 1 to 57) Concurring Reasons: (paras. 58 to 79) Dissenting Reasons: (paras. 80 to 110) McLachlin C.J. (Deschamps, Fish and Cromwell JJ. concurring) LeBel J. (Rothstein J. concurring) Abella J. R. v. N.S., 2012 SCC 72, [2012] 3 S.C.R. 726 N.S. Appellant

v. Her Majesty The Queen, M-d S. and M-l S. Respondents and Ontario Human Rights Commission, Barbra Schlifer Commemorative Clinic, Criminal Lawyers’ Association (Ontario), Muslim Canadian Congress, South Asian Legal Clinic of Ontario, Barreau du Québec, Canadian Civil Liberties Association, Women’s Legal Education and Action Fund and Canadian Council on American-Islamic Relations Interveners Indexed as: R. v. N.S. 2012 SCC 72 File No.: 33989. 2011: December 8; 2012: December 20.

Present: McLachlin C.J. and LeBel, Deschamps, Fish, Abella, Rothstein and Cromwell JJ. on appeal from the court of appeal for ontario Charter of Rights — Freedom of religion — Right to fair hearing — Right to make full answer and defence — Muslim witness at preliminary hearing in sexual assault trial wanting to testify with her face covered by niqab — Whether requiring witness to remove the niqab while testifying would interfere with her religious freedom — Whether permitting her to wear niqab while testifying would create a serious risk to trial fairness — Whether both rights could be accommodated to avoid conflict between them — If not, whether salutary effects of requiring the witness to remove niqab outweigh deleterious effects — Canadian Charter of Rights and Freedoms, ss. 2(a) , 7 , 11(d) .

Criminal law — Evidence — Cross-examination — Muslim witness at preliminary hearing in sexual assault trial wanting to testify with her face covered by niqab — Whether permitting her to wear niqab while testifying would create a serious risk to trial fairness. The accused, M---d S. and M---l S., stand charged with sexually assaulting N.S. N.S. was called by the Crown as a witness at the preliminary inquiry. N.S., who is a Muslim, indicated that for religious reasons she wished to testify wearing her niqab.

The preliminary inquiry judge held a voir dire , concluded that N.S’s religious belief was “not that strong” and ordered her to remove her niqab. On appeal, the Court of Appeal held that if the witness’s freedom of religion and the accused’s fair trial interests were both engaged on the facts and could not be reconciled, the witness may be ordered to remove the niqab, depending on the context. The Court of Appeal returned the matter to the preliminary inquiry judge. N.S. appealed. Held (Abella J. dissenting): The appeal should be dismissed, and the matter remitted to the preliminary inquiry judge.

Per McLachlin C.J. and Deschamps, Fish and Cromwell JJ.: The issue is when, if ever, a witness who wears a niqab for religious reasons can be required to remove it while testifying. Two sets of Charter rights are potentially engaged — the witness’s freedom of religion and the accused’s fair trial rights, including the right to make full answer and defence. An extreme approach that would always require the witness to remove her niqab while testifying, or one that would never do so, is untenable.

The answer lies in a just and proportionate balance between freedom of religion and trial fairness, based on the particular case before the court. A witness who for sincere religious reasons wishes to wear the niqab while testifying in a criminal proceeding will be required to remove it if (

a) this is necessary to prevent a serious risk to the fairness of the trial, because reasonably available alternative measures will not prevent the risk; and (

b) the salutary effects of requiring her to remove the niqab outweigh the deleterious effects of doing so. Applying this framework involves answering four questions. First, would requiring the witness to remove the niqab while testifying interfere with her religious freedom? To rely on s. 2(

a) of the Charter , N.S. must show that her wish to wear the niqab while testifying is based on a sincere religious belief. The preliminary inquiry judge concluded that N.S.’s beliefs were not sufficiently strong. However, at this stage the focus is on sincerity rather than strength of belief. The second question is: would permitting the witness to wear the niqab while testifying create a serious risk to trial

fairness? There is a deeply rooted presumption in our legal system that seeing a witness’s face is important to a fair trial, by enabling effective cross-examination and credibility assessment. The record before us has not shown this presumption to be unfounded or erroneous. However, whether being unable to see the witness’s face threatens trial fairness in any particular case will depend on the evidence that the witness is to provide. Where evidence is uncontested, credibility assessment and cross-examination are not in issue. Therefore, being unable to see the witness’s face will not impinge on trial fairness.

If wearing the niqab poses no serious risk to trial fairness, a witness who wishes to wear it for sincere religious reasons may do so. If both freedom of religion and trial fairness are engaged on the facts, a third question must be answered: is there a way to accommodate both rights and avoid the conflict between them? The judge must consider whether there are reasonably available alternative measures that would conform to the witness’s religious convictions while still preventing a serious risk to trial fairness.

If no accommodation is possible, then a fourth question must be answered: do the salutary effects of requiring the witness to remove the niqab outweigh the deleterious effects of doing so? Deleterious effects include the harm done by limiting the witness’s sincerely held religious practice. The judge should consider the importance of the religious practice to the witness, the degree of state interference with that practice, and the actual situation in the courtroom — such as the people present and any measures to limit facial exposure.

The judge should also consider broader societal harms, such as discouraging niqab-wearing women from reporting offences and participating in the justice system. These deleterious effects must be weighed against the salutary effects of requiring the witness to remove the niqab. Salutary effects include preventing harm to the fair trial interest of the accused and safeguarding the repute of the administration of justice.

When assessing potential harm to the accused’s fair trial interest, the judge should consider whether the witness’s evidence is peripheral or central to the case, the extent to which effective cross-examination and credibility assessment of the witness are central to the case, and the nature of the proceedings. Where the liberty of the accused is at stake, the witness’s evidence central and her credibility vital, the possibility of a wrongful conviction must weigh heavily in the balance.

The judge must assess all these factors and determine whether the salutary effects of requiring the witness to remove the niqab outweigh the deleterious effects of doing so. A clear rule that would always, or one that would never, permit a witness to wear the niqab while testifying cannot be sustained. Always permitting a witness to wear the niqab would offer no protection for the accused’s fair trial interest and the state’s interest in maintaining public confidence in the administration of justice.

However, never permitting a witness to testify wearing a niqab would not comport with the fundamental premise underlying the Charter that rights should be limited only to the extent that the limits are shown to be justifiable. The need to accommodate and balance sincerely held religious beliefs against other interests is deeply entrenched in Canadian law. Competing rights claims should be reconciled through accommodation if possible, and if a conflict cannot be avoided, through case-by-case balancing. The Charter , which protects both freedom of religion and trial fairness, demands no less.

Per LeBel and Rothstein JJ.: This appeal illustrates the tension and changes caused by the rapid evolution of contemporary Canadian society and by the growing presence in Canada of new cultures, religions, traditions and social practices. This case is not purely one of conflict and reconciliation between a religious right and the protection of the right of the accused to make full answer and defence, but engages basic values of the Canadian criminal justice system. The Charter protects freedom of religion in express words at s. 2 ( a ).

But fundamental too are the rights of the accused to a fair trial, to make full answer and defence to the charges brought against him, to benefit from the constitutional presumption of innocence and to avert wrongful convictions. Since cross-examination is a necessary tool for the exercise of the right to make full answer and defence, the consequences of restrictions on that right weigh more heavily on the accused, and the balancing process must work in his or her favour. A defence that is unduly and improperly constrained might impact on the determination of the guilt or innocence of the accused.

The Constitution requires an openness to new differences that appear within Canada, but also an acceptance of the principle that it remains connected with the roots of our contemporary democratic society. A system of open and independent courts is a core component of a democratic state, ruled by law and a fundamental Canadian value. From this broader constitutional perspective, the trial becomes

an act of communication with the public at large. The public must be able to see how the justice system works. Wearing a niqab in the courtroom does not facilitate acts of communication. Rather, it shields the witness from interacting fully with the parties, their counsel, the judge and the jurors. Wearing the niqab is also incompatible with the rights of the accused, the nature of the Canadian public adversarial trials, and with the constitutional values of openness and religious neutrality in contemporary democratic, but diverse, Canada.

Nor should wearing a niqab be dependent on the nature or importance of the evidence, as this would only add a new layer of complexity to the trial process. A clear rule that niqabs may not be worn at any stage of the criminal trial would be consistent with the principle of public openness of the trial process and would safeguard the integrity of that process as one of communication.

Per Abella J. (dissenting): The harmful effects of requiring a witness to remove her niqab, with the result that she will likely not testify, bring charges in the first place, or, if she is the accused, be unable to testify in her own defence , is a significantly more harmful consequence than the accused not being able to see a witness’s whole face. Unless the witness’s face is directly relevant to the case, such as where her identity is in issue, she should not be required to remove her niqab.

There is no doubt that the assessment of a witness’s demeanour is easier if it is based on being able to scrutinize the whole demeanour package — face, body language, or voice. That, however, is different from concluding that unless the entire package is available for scrutiny, a witness’s credibility cannot adequately be weighed. Courts regularly accept the testimony of witnesses whose demeanour can only be partially observed and there are many examples of courts accepting evidence from witnesses who are unable to testify under ideal circumstances because of visual, oral, or aural impediments.

The use of an interpreter, for example, may well have an impact on how the witness’s demeanour is understood, but it is beyond dispute that interpreters render the assessment of demeanour neither impossible nor impracticable. A witness may also have physical or medical limitations that affect a judge’s or lawyer’s ability to assess demeanour. A stroke may interfere with facial expressions; an illness may affect body movements; and a speech impairment may affect the manner of speaking.

All of these are departures from the demeanour ideal, yet none has ever been held to disqualify the witness from giving his or her evidence on the grounds that the accused’s fair trial rights are impaired. Witnesses who wear niqabs should not be treated any differently.

Since not being able to see a witness’s whole face is only a partial interference with what is, in any event, only one part of animprecise measuring tool of credibility, there is no reason to demand full “demeanour access” where religious belief prevents it. Awitness wearing a niqab may still express herself through her eyes, body language, and gestures. Moreover, the niqab has no effect onthe witness’s verbal testimony, including the tone and inflection of her voice, the cadence of her speech, or, most significantly, thesubstance of the answers she gives.

Defence counsel still has the opportunity to rigorously cross-examine the witness. A witness who is not permitted to wear her niqab while testifying is prevented from being able to act in accordance with herreligious beliefs. This has the effect of forcing her to choose between her religious beliefs and her ability to participate in the justicesystem.

As a result, complainants who sincerely believe that their religion requires them to wear the niqab in public, may choose not tobring charges for crimes they allege have been committed against them, or, more generally, may resist being a witness in someone else’strial. Where the witness is the accused, she will be unable to give evidence in her own defence.

The majority’s conclusion that beingunable to see the witness’s face is acceptable from a fair trial perspective if the evidence is “uncontested”, essentially means that sexualassault complainants, whose evidence will inevitably be contested, will be forced to choose between laying a complaint and wearing aniqab, which may be no meaningful choice at all. Cases Cited By McLachlin C.J. Applied: Dagenais v. Canadian Broadcasting Corp., (SCC), [1994] 3 S.C.R. 835; R. v. Mentuck, 2001SCC 76, [2001] 3 S.C.R. 442; R. v. Mills, (SCC), [1999] 3 S.C.R. 668; R. v. Rose, (SCC), [1998] 3S.C.R. 262; R. v.

Seaboyer, (SCC), [1991] 2 S.C.R. 577; R. v. Osolin, (SCC), [1993] 4 S.C.R. 595; R. v.Lyttle, 2004 SCC 5, [2004] 1 S.C.R. 193; referred to: Syndicat Northcrest v. Amselem, 2004 SCC 47, [2004] 2 S.C.R. 551; R. v.Levogiannis (1990), (ON CA), 1 O.R. (3d) 351, aff’d (SCC), [1993] 4 S.C.R. 475; R. v. J.Z.S., 2010SCC 1, [2010] 1 S.C.R. 3, aff’g 2008 BCCA 401, 261 B.C.A.C. 52; Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235; White v.The King, (SCC), [1947] S.C.R. 268; R. v. W. (R.), (SCC), [1992] 2 S.C.R. 122; Police v. Razamjoo,[2005] D.C.R. 408; R. v. Oakes, (SCC), [1986] 1 S.C.R. 103; Alberta v.

Hutterian Brethren of Wilson Colony, 2009 SCC37, [2009] 2 S.C.R. 567; M. (A.) v. Ryan, (SCC), [1997] 1 S.C.R. 157; R. v. Arcuri, 2001 SCC 54, [2001] 2 S.C.R. 828;R. v. Hart (1999), 1999 NSCA 45 , 174 N.S.R. (2d) 165; R. v. Swain, (SCC), [1991] 1 S.C.R. 933; Multani v.Commission scolaire Marguerite-Bourgeoys, 2006 SCC 6, [2006] 1 S.C.R. 256; Ontario Human Rights Commission v. Simpson-SearsLtd., (SCC), [1985] 2 S.C.R. 536; Commission scolaire régionale de Chambly v. Bergevin, (SCC),[1994] 2 S.C.R. 525; Central Okanagan School District No. 23 v. Renaud, (SCC), [1992] 2 S.C.R. 970; Saumur v.

Cityof Quebec, (SCC), [1953] 2 S.C.R. 299; R. v. Big M Drug Mart Ltd., (SCC), [1985] 1 S.C.R. 295; R. v.Edwards Books and Art Ltd., (SCC), [1986] 2 S.C.R. 713; S.L. v. Commission scolaire des Chênes, 2012 SCC 7, [2012]1 S.C.R. 235. By LeBel J. Referred to: R. v. Crawford, (SCC), [1995] 1 S.C.R. 858; R. v. Levogiannis, (SCC),[1993] 4 S.C.R. 475; Alberta v. Hutterian Brethren of Wilson Colony, 2009 SCC 37, [2009] 2 S.C.R. 567; Bruker v. Marcovitz, 2007SCC 54, [2007] 3 S.C.R. 607; R. v.

Oakes, (SCC), [1986] 1 S.C.R. 103; Reference re Secession of Quebec, (SCC), [1998] 2 S.C.R. 217; Reference re Remuneration of Judges of the Provincial Court of Prince Edward Island, (SCC), [1997] 3 S.C.R. 3; Canadian Broadcasting Corp. v. New Brunswick (Attorney General), (SCC), [1996] 3S.C.R. 480. By Abella J. (dissenting) Alberta v. Hutterian Brethren of Wilson Colony, 2009 SCC 37, [2009] 2 S.C.R. 567; Reference re Same-Sex Marriage, 2004SCC 79, [2004] 3 S.C.R. 698; Syndicat Northcrest v. Amselem, 2004 SCC 47, [2004] 2 S.C.R. 551; S.L. v. Commission scolaire desChênes, 2012 SCC 7, [2012] 1 S.C.R. 235; R. v.

Mills, (SCC), [1999] 3 S.C.R. 668; R. v. O’Connor, (SCC), [1995] 4 S.C.R. 411; Faryna v. Chorny, (BC CA), [1952] 2 D.L.R. 354; R. v. Pelletier (1995), 1995 ABCA 128, 165 A.R. 138; R. v. Levert (2001), (ON CA), 159 C.C.C. (3d) 71; R. v. A.F., 2005 ABCA 447, 376 A.R.124; R. v. R.S.M., 1999 BCCA 218 ; R. v. Davis (1995), 1995 ABCA 188 , 165 A.R. 243; R. v. Chapdelaine, 2004ABQB 39 ; R. v. Butt (2008), (NL PC), 280 Nfld. & P.E.I.R. 129; R. v. Khan, (SCC),[1990] 2 S.C.R. 531; R. v. Levogiannis (1990), (ON CA), 1 O.R. (3d) 351. Statutes and Regulations Cited Canada Evidence Act, R.S.C. 1985, c. C-5.

Canadian Charter of Rights and Freedoms, ss. 1, 2(a), 7, 11(d), 14, 27. Criminal Code, R.S.C. 1985, c. C-46, ss. 486.2(1), 709, 713, 714.3, 714.4(b), 715. Authors Cited Bakht, Natasha. “Objection, Your Honour! Accommodating Niqab-Wearing Women in Courtrooms”, in Ralph Grillo, et al., eds., LegalPractice and Cultural Diversity. Farnham, Surrey: Ashgate, 2009, 115. Bingham, Tom. The Rule of Law. London: Allen Lane, 2010. Canadian Judicial Council. Model Jury Instructions,

Part I, Preliminary Instructions, 4.11 Assessing Testimony, updated March 2011(online: http://www.cjc-ccm.gc.ca/english/lawyers_en.asp?selMenu=lawyers_NCJI-Jury-Instruction-Preliminary-2011-03_en.asp#_Toc287950397).

Morrison, Barry R., Laura L. Porter and Ian H. Fraser. “The Role of Demeanour in Assessing the Credibility of Witnesses” (2007), 33Advocates’ Q. 170. Nussbaum, Martha C. Liberty of Conscience: In Defense of America’s Tradition of Religious Equality. New York: Basic Books, 2008. Weinrib, Sara. “An Exemption for Sincere Believers: The Challenge of Alberta v. Hutterian Brethren of Wilson Colony” (2011), 56McGill L.J. 719.

APPEAL from a judgment of the Ontario Court of Appeal (Doherty, Moldaver and Sharpe JJ.A.), 2010 ONCA 670, 102O.R. (3d) 161, 326 D.L.R. (4th) 523, 269 O.A.C. 306, 262 C.C.C. (3d) 4, 80 C.R. (6th) 84, 220 C.R.R. (2d) 146, [2010] O.J. No. 4306(QL), 2010 CarswellOnt 7640, setting aside in part a decision of Marrocco J. (2009), 95 O.R. (3d) 735, 191 C.R.R. (2d) 228, , [2009] O.J. No. 1766 (QL), 2009 CarswellOnt 2268, quashing the order of Weisman J. of the Ontario Court of Justice,dated October 16, 2008. Appeal dismissed, Abella J. dissenting. David B. Butt, for the appellant.

Elise Nakelsky and Benita Wassenaar, for the respondent Her Majesty The Queen. Douglas Usher and Michael Dineen, for the respondent M---d S. No one appeared for the respondent M---l S. Written submissions only by Anthony D. Griffin and Reema Khawja, for the intervener the Ontario Human RightsCommission. Rahool P. Agarwal, Michael Kotrly, Vasuda Sinha and Brydie Bethell, for the intervener the Barbra SchliferCommemorative Clinic. Frank Addario and Emma Phillips, for the intervener the Criminal Lawyers’ Association (Ontario).

Tyler Hodgson, Heather Pessione and Ewa Krajewska, for the intervener the Muslim Canadian Congress. Written submissions only by Ranjan K. Agarwal and Daniel T. Holden, for the intervener the South Asian Legal Clinic ofOntario. Written submissions only by Babak Barin and Sylvie Champagne, for the intervener Barreau du Québec. Written submissions only by Bradley E. Berg and Rahat Godil, for the intervener the Canadian Civil Liberties Association. Written submissions only by Susan M. Chapman and Joanna Birenbaum, for the intervener the Women’s Legal Educationand Action Fund.

Faisal Bhabha, for the intervener the Canadian Council on American-Islamic Relations. The judgment of McLachlin C.J. and Deschamps, Fish and Cromwell JJ. was delivered by The Chief Justice — I. Introduction [1] How should the state respond to a witness whose sincerely held religious belief requires her to wear a niqab thatcovers her face, except for her eyes, while testifying in a criminal proceeding? One response is to say she must always remove her niqabon the ground that the courtroom is a neutral space where religion has no place.

Another response is to say the justice system shouldrespect the witness’s freedom of religion and always permit her to testify with the niqab on. In my view, both of these extremes must berejected in favour of a third option: allowing the witness to testify with her face covered unless this unjustifiably impinges on theaccused’s fair trial rights. [2] A secular response that requires witnesses to park their religion at the courtroom door is inconsistent with thejurisprudence and Canadian tradition, and limits freedom of religion where no limit can be justified.

On the other hand, a response thatsays a witness can always testify with her face covered may render a trial unfair and lead to wrongful conviction. What is required is anapproach that balances the vital rights protecting freedom of religion and trial fairness when they conflict. The long-standing practice inCanadian courts is to respect and accommodate the religious convictions of witnesses, unless they pose a significant or serious risk to afair trial.

The Canadian Charter of Rights and Freedoms, which protects both freedom of religion and trial fairness, demands no less. [3] For the reasons that follow, I conclude that a witness who for sincere religious reasons wishes to wear the niqabwhile testifying in a criminal proceeding will be required to remove it if: (

a) requiring the witness to remove the niqab is necessary to prevent a serious risk to the fairness of the trial, because reasonablyavailable alternative measures will not prevent the risk; and (

b) the salutary effects of requiring her to remove the niqab, including the effects on trial fairness, outweigh the deleteriouseffects of doing so, including the effects on freedom of religion. II. The Background

[4] The facts may be briefly stated. M---d S. and M---l S. stand charged with having sexually assaulted N.S. Theaccused are N.S.’s cousin and uncle, respectively. The prosecution called N.S. as a witness at the preliminary inquiry. N.S., who is aMuslim, wished to testify wearing her niqab. M---d S. and his co-accused, M---l S., sought an order requiring N.S. to remove her niqabwhen testifying. The preliminary inquiry judge held a voir dire, during which N.S. wore her niqab.

N.S. testified that her religious beliefrequired her to wear a niqab in public where men (other than certain close family members) might see her. She admitted that she hadremoved her niqab for the photo on her driver’s licence, which was taken by a female photographer, and that, if required, she wouldremove it for a security check at a border crossing. The judge concluded that N.S.’s religious belief was “not that strong” and orderedher to remove her niqab. N.S. objected. The preliminary inquiry was adjourned.

N.S. applied to the Superior Court of Justice to quashthe order of the preliminary inquiry judge and to permit her to testify wearing the niqab. [5] At the Superior Court of Justice, Marrocco J. quashed the order that N.S. testify without her niqab ((2009), (ON SC), 95 O.R. (3d) 735). He held that N.S. should be allowed to testify wearing a niqab if she asserted a sincerereligious reason for doing so, but that the preliminary inquiry judge would have the option to exclude her evidence if the niqab werefound to have prevented true cross-examination.

N.S. appealed, and M---d S. cross-appealed. [6] The Court of Appeal, per Doherty J.A., held that a judge faced with a request to testify wearing a niqab shoulddetermine whether the request was the result of a sincere religious belief, and if so, whether it impinged on the accused’s fair trial rights(2010 ONCA 670, 102 O.R. (3d) 161). If the rights of the witness and accused could not be reconciled by adapting court procedures toaccommodate the religious practice, the accused’s fair trial interest may require that the witness be ordered to remove her niqab.

Thiswould depend on whether the credibility of the witness was in issue, how much the niqab interfered with demeanour assessment,whether the trial was a jury trial or a judge-alone trial, the stage of the proceedings, the nature of the evidence to be given (i.e. is itcentral or peripheral, controversial or uncontested), the nature of the defence to be advanced, and other constitutional values and societalinterests. The Court of Appeal returned the matter to the preliminary inquiry judge, to be dealt with in accordance with its directives.N.S. appealed. III.

The Issues [7] The issue is when, if ever, a witness who wears a niqab for religious reasons can be required to remove it whiletestifying. Two sets of Charter rights are potentially engaged — the witness’s freedom of religion (protected under s. 2(a)) and theaccused’s fair trial rights, including the right to make full answer and defence (protected under ss. 7 and 11(d)). This Court set out theframework for identifying and resolving rights conflicts that arise at common law in Dagenais v. Canadian Broadcasting Corp., (SCC), [1994] 3 S.C.R. 835. This approach was further refined in R. v.

Mentuck, 2001 SCC 76, [2001] 3 S.C.R. 442. Theframework was developed in the context of publication bans, but its principles have broader application. [8] The first task under a Dagenais/Mentuck-type inquiry is to determine whether, in the case at hand, allowing thewitness to testify in a niqab is necessary to protect her freedom of religion. The second task is to determine whether requiring thewitness to testify without the niqab is necessary in order to protect the fairness of the trial.

This involves considering whether there arealternative measures for protecting trial fairness that would also allow the witness to exercise her religious practice.

Finally, if there is atrue conflict that cannot be avoided, it is necessary to assess the competing harms and determine whether the salutary effects of requiringthe witness to remove the niqab (for example, reducing the risk of a wrongful conviction) outweigh the deleterious effects of doing so(for example, the harm from interfering with the witness’s sincerely held religious belief): see Dagenais, at p. 878; Mentuck, at para. 32. [9] Applying this framework involves answering 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 thedeleterious effects of doing so? IV. Would Requiring the Witness to Remove the Niqab While Testifying Interfere With Her Religious Freedom? [10] N.S. bases her claim to wear a niqab while testifying on the guarantee of freedom of religion in s. 2(

a) of theCharter: 2. Everyone has the following fundamental freedoms: (

a) freedom of conscience and religion; [11] In order to rely on s. 2(a), she must show that her wish to wear the niqab in court is based on a sincere religiousbelief: Syndicat Northcrest v. Amselem, 2004 SCC 47, [2004] 2 S.C.R. 551. The issue at this stage is whether N.S. sincerely believesthat her religion requires her to wear a niqab in the presence of men who are not her relatives, including while testifying in court. [12] The preliminary inquiry judge failed to conduct an adequate inquiry into whether N.S.’s refusal to remove her niqabwas based on a sincere religious belief.

Based on the fact that N.S. removed the niqab for her driver’s licence photo and said she woulddo so for a security check, the preliminary inquiry judge seems to have concluded that her beliefs were not sufficiently “strong”. [13] This was not an appropriate determination of whether N.S. has a prima facie religious claim. First, the question ofwhether she has a claim focuses on sincerity of belief rather than its strength.

While, as I will discuss, the strength of a claimant’sreligious belief may be relevant in balancing it against the accused’s fair trial rights, the belief need only be sincere in order for it toreceive protection. Second, inconsistent adherence to a religious practice may suggest lack of sincere belief, but it does not necessarily do

so. A sincere believer may occasionally lapse, her beliefs may change over time or her belief may permit exceptions to the practice inparticular situations. Departures from the practice in the past should also be viewed in context; a witness should not be denied the rightto raise s. 2(

a) merely because she has made what seemed to be a compromise in the past in order to participate in some facet of society. The preliminary inquiry judge did not explore these possibilities. I therefore agree with the Court of Appeal that the matter must bereturned to the preliminary inquiry judge for full consideration of whether N.S.’s desire to wear a niqab is based on sincere religiousbelief. [14] The balance of my reasons proceeds on the assumption that N.S. has established a sincere religious belief that shemust wear a niqab while testifying in a public criminal proceeding.

In such circumstances, can the judge order that the niqab be removedon the basis that it will adversely affect the accused’s fair trial interests? V. Would Permitting the Witness to Wear the Niqab While Testifying Create a Serious Risk to Trial Fairness? [15] M---d S. submits that permitting N.S. to wear the niqab while testifying would infringe his fair trial rights. Both ss.7 and 11(

d) of the Charter protect an accused’s right to a fair trial and to make full answer and defence.

Section 11(

d) of the Charterstates: 11. Any person charged with an offence has the right . . . (

d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independentand impartial tribunal; The right to a fair trial in s. 11(

d) encompasses a right to make full answer and defence: R. v. Mills, (SCC), [1999] 3S.C.R. 668, at para. 69. More broadly, s. 7 of the Charter provides that a person cannot be deprived of his liberty except “in accordancewith the principles of fundamental justice”. Those principles include the right to a fair trial and to make full answer and defence. Theprinciples of fundamental justice in s. 7 and the requirements of s. 11(

d) are “inextricably intertwined”: R. v. Rose, (SCC), [1998] 3 S.C.R. 262, at para. 95, citing R. v. Seaboyer, (SCC), [1991] 2 S.C.R. 577, at p. 603. [16] M---d S. argues that allowing N.S. to testify with her face covered by a niqab denies his fair trial rights in two ways: first, by preventing effective cross-examination; and second, by interfering with the ability of the trier of fact (judge or jury) to assessN.S.’s credibility. [17] We have no expert evidence in this case on the importance of seeing a witness’s face to effective cross-examinationand accurate assessment of a witness’s credibility.

All we have are arguments and several legal and social science articles submitted bythe parties as authorities. [18] M---d S. and the Crown argue that the link is clear. Communication involves not only words, but facial cues. Afacial gesture may reveal uncertainty or deception. The cross-examiner may pick up on non-verbal cues and use them to uncover thetruth. Credibility assessment is equally dependent not only on what a witness says, but on how she says it. Effective cross-examinationand accurate credibility assessment are central to a fair trial.

It follows, they argue, that permitting a witness to wear a niqab whiletestifying may deny an accused’s fair trial rights. [19] N.S. and supporting interveners, on the other hand, argue that the importance of seeing a witness’s face has beengreatly exaggerated. They submit that untrained individuals cannot use facial expressions to detect deception.

Moreover, to the extentthat non-verbal cues are useful at all, a niqab-wearing witness’s eyes, tone of voice and cadence of speech remain available to the cross-examiner and trier of fact. [20] The record sheds little light on the question of whether seeing a witness’s face is important to effective cross-examination and credibility assessment and hence to trial fairness. The only evidence in the record is a four-page unpublished reviewarticle suggesting that untrained individuals cannot accurately detect lies based on the speaker’s facial cues.

This material was nottendered through an expert available for cross-examination. Interveners have submitted articles arguing for and against a connection, butthey are not part of the record and not supported by expert witnesses, and so are more rhetorical than factual. [21] This much, however, can be said. The common law, supported by 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. [22] As a general rule, witnesses in common law criminal courts are required to testify in open court, with their facesvisible to counsel, the judge and the jury. Face-to-face confrontation is the norm, although not an independent constitutional right: R. v.Levogiannis (1990), (ON CA), 1 O.R. (3d) 351 (C.A.), at pp. 366-67, aff’d (SCC), [1993] 4 S.C.R.475.

To be sure, long-standing assumptions of the common law can be displaced, if shown to be erroneous or based on groundlessprejudice — thus the reforms to eliminate the many myths that once skewed the law of sexual assault.

But the record before us has notshown the long-standing assumptions of the common law regarding the importance of a witness’s facial expressions to cross-examination and credibility assessment to be unfounded or erroneous. [23] In recent years, Parliament and this Court have confirmed the common law assumption that the accused, the judgeand the jury should be able to see the witness as she testifies.

To protect child witnesses from trauma, Parliament has passed legislationpermitting children to testify via closed-circuit television or from behind a screen so that they cannot see the accused: Criminal Code, s.486.2(1). This Court has upheld these testimonial aids, relying on the fact that they do not prevent the accused from seeing the witness:R. v. J.Z.S., 2010 SCC 1, [2010] 1 S.C.R. 3, aff’g 2008 BCCA 401, 261 B.C.A.C. 52.

Before a witness is permitted to testify by audiolink, the Criminal Code expressly requires that the judge consider “any potential prejudice to either of the parties caused by the fact thatthe witness would not be seen by them”: ss. 714.3(

d) and 714.4(b). This, too, suggests that not seeing a witness’s face during testimony

may limit the fairness of a trial. [24] Covering the face of a witness may impede cross-examination: see C.A. reasons, at para. 54. Effective cross-examination is integral to the conduct of a fair trial and a meaningful application of the presumption of innocence: see R. v. Osolin, (SCC), [1993] 4 S.C.R. 595, at pp. 663-65; Mills, at para. 69.

Unwarranted constraints may undermine the fairness of thetrial: . . . the right of an accused to cross-examine witnesses for the prosecution — without significant and unwarrantedconstraint — is an essential component of the right to make full answer and defence. [Emphasis added.] (R. v. Lyttle, 2004 SCC 5, [2004] 1 S.C.R. 193, at para. 2) Non-verbal communication can provide the cross-examiner with valuable insights that may uncover uncertainty or deception, and assistin getting at the truth. [25] Covering a witness’s face may also impede credibility assessment by the trier of fact, be it judge or jury.

It is asettled axiom of appellate review that deference should be shown to the trier of fact on issues of credibility because trial judges (andjuries) have the “overwhelming advantage” of seeing and hearing the witness — an advantage that a written transcript cannot replicate:Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at para. 24; see also White v. The King, (SCC), [1947] S.C.R.268, at p. 272; R. v. W. (R.), (SCC), [1992] 2 S.C.R. 122, at p. 131.

This advantage is described as stemming from theability to assess the demeanour of the witness, that is, to see how the witness gives her evidence and responds to cross-examination. [26] Changes in a witness’s demeanour can be highly instructive; in Police v. Razamjoo, [2005] D.C.R. 408, a NewZealand judge asked to decide whether witnesses could testify wearing burkas commented: . . . there are types of situations . . . in which the demeanour of a witness undergoes a quite dramatic change in the courseof his evidence.

The look which says “I hoped not to be asked that question”, sometimes even a look of downright hatred at counsel by awitness who obviously senses he is getting trapped, can be expressive. So too can abrupt changes in mode of speaking, facial expressionor body language.

The witness who moves from expressing himself calmly to an excited gabble; the witness who from speaking clearlywith good eye contact becomes hesitant and starts looking at his feet; the witness who at a particular point becomes flustered and sweaty,all provide examples of circumstances which, despite cultural and language barriers, convey, at least in part by his facial expression, amessage touching credibility. [para. 78] [27] On the record before us, I conclude that there is a strong connection between the ability to see the face of a witnessand a fair trial.

Being able to see the face of a witness is not the only — or indeed perhaps the most important — factor in cross-examination or accurate credibility assessment. But its importance is too deeply rooted in our criminal justice system to be set asideabsent compelling evidence. [28] However, whether the ability to observe a witness’s face impacts trial fairness in any particular case will depend onthe evidence that the witness is to provide.

Where evidence is uncontested, credibility assessment and cross-examination are not inissue; therefore, being unable to see the witness’s face will not impinge on the accused’s fair trial rights; as Dagenais notes, the risk totrial fairness must be “real and substantial” (p. 878), or in other words, the risk must be a serious one (Mentuck, at para. 34). [29] If wearing the niqab poses no serious risk to trial fairness, a witness who wishes to wear it for sincere religiousreasons may do so. VI.

Is There a Way to Accommodate Both Rights and Avoid the Conflict Between Them? [30] If both freedom of religion and trial fairness are engaged on the facts, the question is how a judge should reconcilethese rights. [31] The answer to this question lies in the Dagenais/Mentuck approach and the jurisprudence of this Court. The answeris not to ban religion from the courtroom, transforming the courtroom into a “neutral” space where witnesses must park their religiousconvictions at the door.

Nor does it lie in ignoring the ancient and persistent connection the law has postulated between seeing awitness’s face and trial fairness, and holding that a witness may always wear her niqab while testifying. Rather, the answer lies in a justand proportionate balance between freedom of religion on the one hand, and trial fairness on the other, based on the particular casebefore the Court. [32] Under the Dagenais/Mentuck framework, once a judge is satisfied that both sets of competing interests are actuallyengaged on the facts, he or she must try to resolve the claims in a way that will preserve both rights.

Dagenais refers to this as therequirement to consider whether “reasonably available alternative measures” would avoid the conflict altogether (p. 878). We also callthis “accommodation”. We find a way to go forward that satisfies each right and each party. Both rights are respected, and the conflictis averted. [33] When the matter returns to the preliminary inquiry judge, the parties should be able to place before the courtevidence relating to possible options for accommodation of the potentially conflicting claims. This is the first step in the reconciliationprocess.

The question is whether there is a reasonably available alternative that would conform to the witness’s religious convictionswhile still preventing a serious risk to trial fairness. On the facts of this case, it may be that no accommodation is possible; excludingmen from the courtroom would have implications for the open court principle, the right of the accused to be present at his trial, andpotentially his right to counsel of his choice. Testifying without the niqab via closed-circuit television or behind a one-way screen maynot satisfy N.S.’s religious obligations.

However, when this case is reheard, the preliminary inquiry judge must consider the possibilityof accommodation based on the evidence presented by the parties. VII. Do the Salutary Effects of Requiring the Witness to Remove the Niqab Outweigh the Deleterious Effects of Doing So?

[34] If there is no reasonably available alternative that would avoid a serious risk to trial fairness while conforming to thewitness’s religious belief, the analysis moves to the next step in the Dagenais/Mentuck framework. The question is whether the salutaryeffects of requiring the witness to remove the niqab, including the effects on trial fairness, outweigh the deleterious effects of doing so,including the effects on freedom of religion (Dagenais, at p. 878; Mentuck, at para. 32). [35] As Dagenais makes clear, this is a proportionality inquiry, akin to the final part of the test in R. v.

Oakes, (SCC), [1986] 1 S.C.R. 103. The effect of insisting that the witness remove the niqab if she is to testify must be weighedagainst the effect of permitting her to wear the niqab on the stand. [36] In terms of the deleterious effects of requiring the witness to remove her niqab while testifying, the judge must lookat the harm that would be done by limiting the sincerely held religious practice. Sincerity of belief is already established at the first stepof determining whether the s. 2(

a) right is engaged; at this stage the task is to evaluate the impact of failing to protect that sincere beliefin the particular context. It is difficult to measure the value of adherence to religious conviction, or the injury caused by being required todepart from it. The value of adherence does not depend on whether a religious practice is a voluntary expression of faith or a mandatoryobligation under religious doctrine: Amselem, at para. 47. However, certain considerations may be helpful. How important is thepractice to the claimant?

What is the degree of state interference with the religious practice? (See Alberta v. Hutterian Brethren ofWilson Colony, 2009 SCC 37, [2009] 2 S.C.R. 567, at paras. 89-95.) How does the actual situation in the courtroom — the peoplepresent and any measures that can be put in place to limit facial exposure — affect the harm to the claimant of limiting her religiouspractice?

These are but some considerations that may be relevant to determining the impact of an order to remove the niqab on thewitness’s right to freedom of religion. [37] The judge should also consider the broader societal harms of requiring a witness to remove the niqab in order totestify. N.S. and supporting interveners argue that if niqab-wearing women are required to remove the niqab while testifying againsttheir sincere religious belief they will be reluctant to report offences and pursue their prosecution, or to otherwise participate in the justicesystem. The wrongs done to them will remain unredressed.

They will effectively be denied justice. The perpetrators of crimes againstthem will go unpunished, immune from legal consequences. These considerations may be especially weighty in a sexual assault casesuch as this one. In recent decades the justice system, recognizing the seriousness of sexual assault and the extent to which it is under-reported, has vigorously pursued those who commit this crime. Laws have been changed to encourage women and children to comeforward to testify.

Myths that once stood in the way of conviction have been set aside. [38] Having considered the deleterious effects of requiring the witness to remove the niqab, the judge must also considerthe salutary effects of doing so. These include preventing harm to the fair trial interest of the accused and safeguarding the repute of theadministration of justice. An important consideration will be the extent to which effective cross-examination and credibility assessmenton this witness’s testimony is central to the case. On an individual level, the cost of an unfair trial is severe.

The right to a fair trial is afundamental pillar without which the edifice of the rule of law would crumble. No less is at stake than an individual’s liberty — hisright to live in freedom unless the state proves beyond a reasonable doubt that he committed a crime meriting imprisonment. This is ofcritical importance not only to the individual on trial, but to public confidence in the justice system. [39] The nature of the proceeding may also be a relevant factor in assessing the harm to the fair trial interest of theaccused if the witness is permitted to testify wearing the niqab: see M. (A.) v.

Ryan, (SCC), [1997] 1 S.C.R. 157, atpara. 36. For example, determining whether evidence is admissible on a voir dire might not raise the same concerns for getting at thetruth through cross-examination and credibility assessment as would determining a central factual element of the Crown’s case. [40] The Court of Appeal suggested that the fair trial interest might be attenuated at the preliminary inquiry stage, wherethe judge is not tasked with making credibility findings: R. v. Arcuri, 2001 SCC 54, [2001] 2 S.C.R. 828, at para. 32.

This may bequestioned, however, given that evidence taken on a preliminary inquiry is subject to cross-examination and can be read in as part of therecord at trial: s. 715, Criminal Code. Moreover, one of the purposes of a preliminary inquiry is to permit defence counsel to probe thestrength of the Crown’s case by cross-examining its witnesses. Permitting the witness to wear a niqab at the preliminary inquiry mighthamper fulfillment of that purpose. [41] The Court of Appeal suggested that harm to the fair trial interest might be less significant in a trial before a judgealone than before a judge and jury.

Where a judge is the trier of fact, she would have the benefit of observing the witness at two points:first during the voir dire on the witness’s religious freedom claim, and second when the witness gives testimony and is cross-examined. As the Court of Appeal stated: [The] judge during the inquiry into the witness’s religious freedom claim may well develop a sense of the extent to whichthe wearing of the niqab will affect that judge’s ability to make a proper assessment of the witness.

The judge could properly take thatimpression into account in deciding how best to reconcile the witness’s right to freedom of religion with the accused’s right to full cross-examination. [para. 76] This said, judges must guard against over-confident predictions that they will be able to make sound credibility assessments, or that theinability to see the witness’s face will not affect cross-examination, on the basis of a preliminary impression of a person whose face theycannot see. [42] The Court of Appeal also suggested that, in a trial by jury, the harm of being unable to see the witness’s face mightbe offset by a curative instruction to the jury.

However, a note of caution is in order. A curative instruction is hardly a remedy fordeficient cross-examination or impaired credibility assessment resulting from an inability to see the witness’s face. [43] Another factor to consider is the nature of the evidence to be given by the witness. The Court of Appeal observedthat if the witness’s “evidence is relatively peripheral, or if it is clear that the witness’s credibility will not be an issue, arguments that theremoval of the niqab is essential to permit cross-examination become weak” (para. 77).

As already discussed above, if the witness’sevidence is uncontested, the accused’s trial fairness interests are not put at risk by the witness wearing a niqab. However, even whentrial fairness is engaged, the importance of the evidence may bear on the judge’s assessment of the risk posed by the witness’s face

being concealed. As Cromwell J.A. (as he then was) commented in R. v. Hart (1999), 1999 NSCA 45 , 174 N.S.R. (2d) 165(C.A.): The trial judge should consider the importance of the evidence to the case. The more important the evidence to the prosecution’s case,the more reluctant the trial judge should be to allow it to be given without full cross-examination. [para. 104] [44] These are but some of the factors that may be relevant to determining whether the party seeking removal of theniqab has established that the salutary effects of doing so outweigh the deleterious effects.

Future cases will doubtless raise otherfactors, and scientific exploration of the importance of seeing a witness’s face to cross-examination and credibility assessment mayenhance or diminish the force of the arguments made in this case.

At this point, however, it may be ventured that where the liberty ofthe accused is at stake, the witness’s evidence is central to the case and her credibility vital, the possibility of a wrongful conviction mustweigh heavily in the balance, favouring removal of the niqab. [45] The judge must assess all these factors and determine whether, in the case at hand, the salutary effects of requiringthe witness to remove the niqab outweigh the deleterious effects of doing so. VIII.

The Alternatives [46] I have proposed that courts should deal with the conflict between rights in cases such as this by finding a just andappropriate balance between freedom of religion on the one hand and fair trial rights on the other. The result is that where a niqab isworn because of a sincerely held religious belief, a judge should order it removed if the witness wearing the niqab poses a serious risk totrial fairness, there is no way to accommodate both rights, and the salutary effects of requiring the witness to remove the niqab outweighthe deleterious effects of doing so.

This approach follows the path this Court has taken in cases where rights conflict: R. v. Swain, (SCC), [1991] 1 S.C.R. 933, at pp. 978-79 and 986-87; Dagenais, at p. 878; Multani v. Commission scolaire Marguerite-Bourgeoys, 2006 SCC 6, [2006] 1 S.C.R. 256, at para. 2. [47] Some of the submissions before us, however, argue against a contextual balancing and in favour of a clear rule. Some argue that a witness should always be permitted to wear a niqab in court, while others argue that she should never be permitted tocover her face in court.

In my respectful view, while both positions offer the advantage of a clear rule, neither can be sustained. [48] I turn first to the position that a witness should always be permitted to wear a niqab in court. The basic problem withthis solution is that it offers no protection for the accused’s fair trial interest and the state’s correlative interest in avoiding wrongfulconvictions and maintaining public confidence in the administration of justice.

Proponents of this position, including a number ofinterveners, responded by saying the niqab has little or no impact on cross-examination and credibility assessment, and hence does notimpinge on the accused’s right to, and the state’s interest in, a fundamentally fair trial.

This response, as discussed, flies in the face ofassumptions deeply embedded in common law criminal practice and the Criminal Code, as well as the accepted judicial view that seeingthe face of a witness assists in credibility assessment and is important to a fair trial. [49] In the absence of evidence showing that these beliefs, backed by centuries of practice, are unsubstantiated “myths”that should be excised from the law, we should not take such a radical step. It follows that the view that witnesses can never be orderedto remove the niqab cannot be accepted.

The Dagenais/Mentuck approach of finding a just balance between the conflicting rights is notdisplaced. [50] At the other end of the spectrum lies the approach that says the courtroom must be a space in which individuals’particular religious convictions have no place. On this view, if the niqab is an expression of the wearer’s religious views, it has no placein the courtroom. Courtrooms should be “neutral” spaces, operating on “neutral” principles. Changes of procedure on religious groundsshould therefore not be allowed, it is argued. [51] In my view, this option must also be rejected.

It is inconsistent with Canadian jurisprudence, courtroom practice,and our tradition of requiring state institutions and actors to accommodate sincerely held religious beliefs insofar as possible. Importantly, it limits religious rights where there is no countervailing right and hence no reason to limit them.

As such, it fails theproportionality test which has guided Charter jurisprudence since Oakes in 1986. [52] First, as already discussed, our jurisprudence teaches that clashes between rights should be approached byreconciling the rights through accommodation if possible, and in the end, if a conflict cannot be avoided, by case-by-case balancing: Dagenais. An absolute rule that courtrooms are secular spaces where religious belief plays no role would stand as a unique exception tothis approach. No attempt to accommodate the witness’s sincere religious belief would need to be made.

No effort to minimize theintrusion on the right would need to be considered. The reconciliation between competing rights that we have advocated case after casewould not be attempted. Why? Simply because the venue where the rights clash is a courtroom. [53] Second, to remove religion from the courtroom is not in the Canadian tradition. Canadians have since the country’sinception taken oaths based on holy books — be they the Bible, the Koran or some other sacred text.

The practice has been to respectreligious traditions insofar as this is possible without risking trial fairness or causing undue disruption in the proceedings. The CanadaEvidence Act, R.S.C. 1985, c. C-5, now permits a witness to affirm instead of taking a religious oath, but it does not remove the option ofthe oath from the courtroom. [54] Third, the Canadian approach in the last 60 years to potential conflicts between freedom of religion and other valueshas been to respect the individual’s religious belief and accommodate it if at all possible.

Employers have been required to adaptworkplace practices to accommodate employees’ religious beliefs: Ontario Human Rights Commission v. Simpson-Sears Ltd., (SCC), [1985] 2 S.C.R. 536, at p. 555; Commission scolaire régionale de Chambly v. Bergevin, (SCC),[1994] 2 S.C.R. 525, at pp. 551-52; Central Okanagan School District No. 23 v. Renaud, (SCC), [1992] 2 S.C.R. 970, atp. 982. Schools, cities, legislatures and other institutions have followed the same path: Saumur v. City of Quebec, (SCC), [1953] 2 S.C.R. 299, at pp. 327-29; R. v.

Big M Drug Mart Ltd., (SCC), [1985] 1 S.C.R. 295, at pp. 336-37; R. v.Edwards Books and Art Ltd., (SCC), [1986] 2 S.C.R. 713, at p. 782; Amselem, at para. 103; Multani, at para. 2. The

need to accommodate and balance sincerely held religious beliefs against other interests is deeply entrenched in Canadian law. For overhalf a century this tradition has served us well. To depart from it would set the law down a new road, with unknown twists and turns. [55] Most recently, in S.L. v.

Commission scolaire des Chênes, 2012 SCC 7, [2012] 1 S.C.R. 235, Justice Deschampswrote of the ideal of “neutrality” in the law: . . . following a realistic and non-absolutist approach, state neutrality is assured when the state neither favours nor hindersany particular religious belief, that is, when it shows respect for all postures towards religion, including that of having no religiousbeliefs whatsoever, while taking into account the competing constitutional rights of the individuals affected. [para. 32] [56] This brings me to the final reason for rejecting an approach that would never allow a witness to testify whilewearing a religious facial covering.

It does not comport with the fundamental premise underlying the Charter that rights should belimited only to the extent that the limits are shown to be justifiable. This principle is set out in s. 1 of the Charter, in relation to laws —laws that limit the rights guaranteed by the Charter are invalid to the extent that the limit is not reasonably justified in a free anddemocratic society. A total ban on religious face coverings for all evidence given by all witnesses in the courtroom would mean thatfreedom of religion is being limited in situations where there is no good reason for the limit.

As discussed above, uncontested anduncontroversial evidence does not engage the fair trial interest. A total ban that would permit the state to intrude on freedom of religionwhere it cannot be justified is not consistent with the premise on which the Charter is based — a generous approach to defining thescope of the rights it confers, coupled with the need to justify intrusions on those rights because of conflicting interests or the publicgood. IX. Conclusion [57] I would dismiss the appeal. The matter should be remitted to the preliminary inquiry judge to be decided inaccordance with these reasons.

The reasons of LeBel and Rothstein JJ. were delivered by LeBel J. — I. Introduction [58] The Chief Justice proposes to dismiss the appeal of N.S. I agree with her conclusion. However, she crafts a rule thatwould allow witnesses to wear niqabs in certain circumstances. I have reservations about her approach and will propose a different rule. Iwill add some observations about the important issues raised by this appeal in respect of some of the principles informing and governingthe Constitution of Canada and the application of its criminal law. But I will not restate the facts of the appeal.

I will be content to rely ontheir exposition in the Chief Justice’s reasons, except where I find it necessary to add a few details to their presentation. [59] Once again, this appeal signals the difficulties attendant on the trial of charges of sexual assault and related offences,particularly in the context of the life of a family. As we will see, however, there is more to this case. This appeal also illustrates thetension and changes caused by the rapid evolution of contemporary Canadian society and by the growing presence in Canada of newcultures, religions, traditions and social practices.

Now, this Court must decide how to frame the relationship — or clash — between theaffirmation of a religious right by a victim of sexual assault and the right of the accused to conduct his defence or, rather, to make fullanswer and defence to the charges against him. The complainant says that her Islamic faith requires her to wear a full-face veil, theniqab, in public, in court. The accused responds that the complainant must remove her veil, particularly when she gives evidence or iscross-examined, in order to protect his right to a fair trial and to make full answer and defence.

The Court of Appeal tried to reconcile theconflicting claims. At the end of a long and carefully crafted judgment, it found that N.S. would have to remove her veil, if that becamenecessary, in order to allow the defence to conduct an effective cross-examination (2010 ONCA 670, 102 O.R. (3d) 161).

It did notclearly decide whether wearing a niqab is compatible with the nature of a public adversarial trial in the courts of Canada and with theprinciples that govern such a trial under the Canadian Charter of Rights and Freedoms, the criminal law and the common law. [60] The Court of Appeal and the complainant treated the issue in this case as purely one of conflict and reconciliationbetween a religious right and the protection of the right of the accused to make full answer and defence. This clash arises, but theequation involves other factors.

The case engages basic values of the Canadian criminal justice system. Is the wearing of the niqabcompatible not only with the rights of the accused, but also with the constitutional values of openness and religious neutrality incontemporary democratic, but diverse, Canada? [61] Exploring this aspect of the case may lead to further questions about the meaning of multiculturalism in ourdemocratic environment. I will first consider the conflict between the religious rights claimed by the appellant and the rights of anaccused facing criminal charges.

I will then briefly reflect on the values of the Canadian justice system and on their relevance to theresolution of the issues before this Court. II. Conflict Between Religious Rights and the Criminal Justice Process [62] Freedom of religion is a fundamental right. It often goes to the core identity of human beings. The Charter protectsit in express words in s. 2(a). But fundamental too are the rights of the accused to make full answer and defence to the charges broughtagainst him and to benefit from the presumption of innocence.

The right to cross-examine is considered to be part of the constitutionalright to make full answer and defence. But it is not unlimited (R. v. Crawford, (SCC), [1995] 1 S.C.R. 858, at paras. 27-28; R. v. Levogiannis, (SCC), [1993] 4 S.C.R. 475). Religious rights are not unlimited either (Alberta v. HutterianBrethren of Wilson Colony, 2009 SCC 37, [2009] 2 S.C.R. 567). [63] In the instant case, this Court must resolve a conflict between two protected constitutional rights within theframework established by the constitutional system.

It is not a question of reconciling a constitutional right, the guarantee of freedom ofreligion, with a mere common law right, the right to cross-examine a witness, the complainant. As found in the jurisprudence, the right to

cross-examine is a component of the constitutional right of the accused to make full answer and defence to the charges against him orher. [64] Indeed, the reasons of the Chief Justice recognize the importance of the right of cross-examination as a tool toensure the effectiveness of the right of the accused to make full answer and defence. It tests the witness. Many cross-examinations fail or,in the end, actually assist the prosecution. Some succeed, on occasion brilliantly. Like the Chief Justice, I think that allowing participantsto observe the face of a witness during cross-examination is an important

part in the exercise of the right of the accused to defend himselfagainst criminal charges, and that the appellant has failed to show that this view is wrong. [65] I do not cast doubt on the sincerity of the appellant’s religious beliefs. I do not doubt that the environment of acriminal trial is hardly congenial or comfortable for the witnesses or the parties, particularly in cases involving matters such as sexualassaults, even sexual assaults within the family circle, as in this case. Lawyers and judges get used in their lives to the courtroomenvironment.

As judges, we may forget how new, strange or intimidating it may prove to be for those who do not live their lives in thelaw. [66] Parliament and courts have put processes in place designed to protect young persons and victims of crimes likesexual assault during a criminal trial. They are available to all those who belong to the classes of persons that are deemed to be in need ofprotection in the course of a trial.

Nevertheless, despite these safeguards, the courtroom environment can be traumatic for many litigantsand witnesses. [67] But the Canadian criminal trial process remains faithful in its core aspects to an adversarial model. This processdeveloped in the common law. Some of its features are now part of the constitutional order. The accused, who is the target of theprocess, may himself be going through a painful and traumatic experience from the time of the criminal investigation to the arrest, thelaying of charges and the wait for a trial date in open court.

Indeed, he is the target of a process established to satisfy the public interestin the pursuit and punishment of crime. Nevertheless the criminal process itself is also designed to ensure that the accused is given a fairtrial, to safeguard the constitutional presumption of innocence and, hopefully, to avert wrongful convictions. The adversarial model isbased on interaction between the prosecution, the plaintiff, counsel for the parties, witnesses and, finally, the judge and, whereapplicable, the jurors. This model of justice imposes a significant personal burden on witnesses and parties.

This burden cannot be liftedentirely. The price might very well be reading the most basic rights of the accused out of the criminal law and of the Charter. [68] In this context, it would be possible to expound at length on the theme of the reconciliation of rights. But the Courtis, first of all, tasked with resolving a problem of balancing of rights, which both enjoy constitutional protection. I agree, in this respect,with the reasons of the Chief Justice that, when the issue involves the credibility of a key witness in respect of the core questions raisedby a charge, the rights of the accused must be protected.

Since cross-examination is a necessary tool for the exercise of the right to makefull answer and defence, the consequences of restrictions on the rights in question weigh more heavily on the accused, and the balancingprocess works in his favour. A defence that is unduly and improperly constrained might impact on the determination of his guilt orinnocence. As a result, the witness, the complainant in this case, must be asked to remove her veil while giving evidence at thepreliminary inquiry and at trial. III.

The Niqab — Some Practical Aspects of the Conduct of the Trial [69] But this does not mean that I agree with the solution the Chief Justice proposes to the problem of a witness wearinga niqab while testifying. In her view, whether a witness will be allowed to wear a niqab would depend on the nature or the importance ofthe evidence. The application of these criteria looks highly problematic. First, their application could trigger new motions, and possiblyanother type of “voir dire” that would add a new layer of complexity to a trial process that is not always a model of simplicity.

Weshould not forget that a trial is itself a dynamic chain of events. It can often be difficult to foresee which evidence might be considerednon-contentious or important at a specific point in a trial. The solution may vary at different stages of a trial, and also with what isknown about the evidence. What looked unchallengeable one day might appear slightly dicey a week later. Given the nature of the trialprocess itself, the niqab should be allowed either in all cases or not at all when a witness testifies. In my opinion, a clear rule should bechosen.

Because of its impact on the rights of the defence, in the context of the underlying values of the Canadian justice system, thewearing of a niqab should not be allowed. IV.

Values of the Canadian Criminal Justice System [70] A few years ago, Abella J. wrote some words of caution about the need to respect differences, but at the same time topreserve common values of Canadian society: Endorsed in legal instruments ranging from the statutory protections found in human rights codes to their constitutionalenshrinement in the Canadian Charter of Rights and Freedoms, the right to integrate into Canada’s mainstream based on andnotwithstanding these differences has become a defining part of our national character.

The right to have differences protected, however, does not mean that those differences are always hegemonic. Not alldifferences are compatible with Canada’s fundamental values and, accordingly, not all barriers to their expression are arbitrary. (Bruker v. Marcovitz, 2007 SCC 54, [2007] 3 S.C.R. 607, at paras. 1-2) [71] Those common values are the ones that allowed Canada to develop and live as a diverse society. They preserve apublic space where all will be welcome as they are, but where some core common values will facilitate the interaction between allmembers of society. In his seminal opinion on the

interpretation and application of s. 1 of the Charter in Oakes, Dickson C.J. adverted tothe presence and importance of these common values (R. v. Oakes, (SCC), [1986] 1 S.C.R. 103). In his comment on themeaning of the words “free and democratic society” in s. 1 of the Charter, he emphasized that these values were the source of theconstitutional rights guaranteed by the Charter: The underlying values and principles of a free and democratic society are the genesis of the rights and freedoms guaranteed

by the Charter and the ultimate standard against which a limit on a right or freedom must be shown, despite its effect, to be reasonableand demonstrably justified. [p. 136] [72] Dickson C.J. recognized in Oakes that the Charter is grounded in a long history and tradition. The “living tree” keepsgrowing, but always from its roots. Today, we may rightly say that, in s. 27 of the Charter, Canada accepts the importance ofmulticulturalism in its social life. In s. 27, Canada signals its acceptance that it’s changing through every day of its history.

At the sametime, however, the recognition of multiculturalism takes place in the environment of the Constitution itself, and is rooted in its politicaland legal traditions. The Constitution requires an openness to new differences that appear within Canada, but also an acceptance of theprinciple that it remains connected with the roots of our contemporary democratic society. [73] The will to maintain an independent and open justice system in which the interests and the dignity of all are takeninto consideration remains a key aspect of the traditions grounding this democratic society.

The religious neutrality of the state and of itsinstitutions, including the courts and the justice system, protects the life and the growth of a public space open to all regardless of theirbeliefs, disbeliefs and unbeliefs. Religions are voices among others in the public space, which includes the courts. [74] A system of open and independent courts has become a core component of a democratic state, ruled by law (T.Bingham, The Rule of Law (2010), at p. 8).

This system is part of the complex web of institutions, rules and values embraced by thenotion of the rule of law, of a state and a society living under and within the law. Such a system is critical to the maintenance of the ruleof law, a fundamental Canadian value, as this Court held, for example, in the Quebec Secession Reference (Reference re Secession ofQuebec, (SCC), [1998] 2 S.C.R. 217) and in Reference re Remuneration of Judges of the Provincial Court of PrinceEdward Island, (SCC), [1997] 3 S.C.R. 3. [75] There are all sorts of exceptions to the openness of the courts and to the publicity of trials.

But they remainexceptions. Courts work under a general principle that they are open to the public and that the public is entitled to know or learn aboutwhat goes on before them. As La Forest J. wrote: The importance of ensuring that justice be done openly has not only survived: it has now become “one of the hallmarks ofa democratic society” . . . . The open court principle, seen as “the very soul of justice” and the “security of securities”, acts as aguarantee that justice is administered in a non-arbitrary manner, according to the rule of law.

In Attorney General of Nova Scotia v.MacIntyre, (SCC), [1982] 1 S.C.R. 175, openness was held to be the rule, covertness the exception, thereby fosteringpublic confidence in the integrity of the court system and understanding of the administration of justice. (Canadian Broadcasting Corp. v. New Brunswick (Attorney General), (SCC), [1996] 3 S.C.R. 480, at para. 22) [76] From this broader constitutional perspective, the trial becomes

an act of communication with the public at large. Thepublic must be able to see how the justice system works. The principle of openness ensures that the courts and the trial process belong toall regardless of religion, gender or origin. [77] In the courts themselves, as I mentioned above, the trial is a process of communication. To facilitate this process, thejustice system uses rules and methods that try to assist parties that struggle with handicaps to overcome them in order to gain access tojustice and take part effectively in a trial. Blind or deaf litigants, and parties with limited mobility, take

part in judicial proceedings.Communication may sometimes be more difficult. But the efforts to overcome these obstacles and the rules crafted to address them tendto improve the quality of the communication process. 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 areligious belief in circumstances in which the sincerity and strength of the belief are difficult to assess or even to question.

The niqabshields the witness from interacting fully with the parties, their counsel, the judge and, where applicable, the jurors. [78] A clear rule that niqabs may not be worn would be consistent with the principle of openness of the trial process andwould safeguard the integrity of that process as one of communication. It would also be consistent with the tradition that justice is publicand open to all in our democratic society. This rule should apply at all stages of the criminal trial, at the preliminary inquiry as well as atthe trial itself.

Indeed, evidentiary issues arise and evolve at the different stages of the criminal process, and they affect the conduct ofthe communication process taking place during the trial. [79] Because of the way the litigation and the appeals were conducted, I agree with the disposition proposed by the ChiefJustice. I would remit the matter to the judge presiding at the preliminary inquiry, the stage at which this case has remained boggeddown for years as a result of the incidents that this Court is now trying to resolve.

The following are the reasons delivered by Abella J. (dissenting) — Introduction [80] Controversy hovers over the context of this case: whether the niqab is mandatory for Muslim women or whether itmarginalizes the women who wear it; whether it enhances multiculturalism or whether it demeans it. These are complex issues aboutwhich reasonable people can and do strenuously disagree.

But we are not required to try to resolve any of these or related conceptualissues in this case, we are required to try to transcend them in order to answer only one question: Where identity is not an issue, should awitness’ sincerely held religious belief that a niqab must be worn in a courtroom, yield to an accused’s ability to see her face.

In otherwords, is the harm to the accused’s fair trial rights in not being able to see a witness’ entire face, greater than the harm to that witness’religious rights. [81] N.S., the complainant, is alleging that she was repeatedly sexually assaulted by the accused while she was a child. She asserts that her religious beliefs require her to wear a niqab — a veil which covers her face but not her eyes — while testifying infront of any man who is not a direct family member. The accused argues that his right to a fair trial requires that he, his counsel, and the

judge be able to see N.S.’s face during her testimony and cross-examination. The issue, therefore, is weighing the competing harms. [82] I concede without reservation that seeing more of a witness’ facial expressions is better than seeing less. What I amnot 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 awitness, that the complainant will have to choose between her religious rights and her ability to bear witness against an allegedaggressor.

This also has the potential to impair the rights of an accused, who may find herself having to choose between her religiousrights and giving evidence in her own defence. The court system has many examples of accepting evidence from witnesses who areunable to testify under ideal circumstances because of visual, oral, or aural impediments. I am unable to see why witnesses who wearniqabs should be treated any differently. [83] I would, however, make an exception in cases where the accused can demonstrate that the witness’ face is directlyrelevant to the case, such as where the witness’ identity is in issue.

In such cases, seeing the witness’ face is central to the issues at trial,rather than merely being a part of the assessment of demeanour. Analysis [84] I agree with the majority that the issue at the first stage of the analysis is whether N.S.’s claim to wear a niqab whiletestifying is grounded in the guarantee of freedom of religion in s. 2(

a) of the Canadian Charter of Rights and Freedoms. There is noquestion that an order requiring N.S. to remove her niqab in the courtroom would interfere with her freedom of religion in a substantialmanner: Alberta v. Hutterian Brethren of Wilson Colony, 2009 SCC 37 , [2009] 2 S.C.R. 567, at para. 32. [85] Where both sets of competing Charter interests are shown to be engaged, the next step is to attempt to reconcilethem though reasonably available alternative measures, or accommodation.

But where the rights cannot be reconciled, a “true conflict”is made out, and the court will be required to balance the interests at stake: Reference re Same-Sex Marriage, 2004 SCC 79 ,[2004] 3 S.C.R. 698, at para. 50. In the context of a witness wearing the niqab, I see very little realistic possibility for accommodation. [86] The crux of this case, therefore, is whether the impact of not having full access to the usual “demeanour assessmentpackage” can be said to so materially harm trial fairness that the religious right must yield.

In my view, with very limited exceptions, theharm to a complainant of requiring her to remove her niqab while testifying will generally outweigh any harm to trial fairness. [87] This Court has adopted a low threshold when it comes to establishing sincerity of belief. Inquiries into sincerity areto be “as limited as possible”, intended “only to ensure that a presently asserted religious belief is in good faith, neither fictitious norcapr

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