International Law

TORONTO - Ontario's highest court says witnesses who wear a niqab must remove it on the witness stand ? but only if wearing the face covering veil truly jeopardizes the accused's right to a fair trial.

But the Ontario Court of Appeal stresses each situation must be examined on a case-by-case basis.

In a decision today, the court also says trial judges must respect religious beliefs and examine them to determine if removing the niqab is necessary.

During the preliminary inquiry, which is held to see if there is enough evidence to go to trial, the judge ordered N.S. to remove her veil to testify. That decision was appealed to the Superior Court, which quashed it.

"The preliminary inquiry judge did not conduct a proper inquiry into N.S.'s religious freedom claim. His order directing her to remove her niqab while testifying constituted an error in law on the face of the record. That order should be quashed," wrote Justice David Doherty for the majority Wednesday.

However, Muslim witnesses wearing a face-covering niqab must remove it to testify if in rare cases the covering would truly jeopardize a fair trial, the court said.

?If, in the specific circumstances, the accused?s fair trial right can be honoured only by requiring the witness to remove the niqab, the niqab must be removed if the witness is to testify,? the court ruled.

The Appeal Court stopped short of saying N.S. can give evidence in front of a jury with most of her face shielded by the niqab.

Rather, the court said N.S. should be given an opportunity to explain the connection between her religious beliefs and the wearing of the niqab, and demonstrate the sincerity of those beliefs through a more thorough preliminary hearing.

[53] While it is clear that face to face confrontation between the accused and prosecution witnesses is the accepted norm in Canadian criminal courts, there is no independent constitutional right to a face to face confrontation: Levogiannis, at p. 367.

There are a number of evidentiary rules, both statutory (s. 715 of the Criminal Code) and common law (some hearsay exceptions) that admit statements made by declarants who do not testify at trial at all. Departures from the traditional face to face public confrontation between accused and witness will run afoul of the Charter only if they result in a denialof a fair trial to the accused. The Charter focuses not on face to face confrontation per se, but on the effect of any limitation on that confrontation on the fairness of the trial. Fairness takes into account the interests of the accused, the witness and the broader societal concern that the process maintains public confidence...

[65] Unlike an accused?s right to make full answer and defence in a fair trial, a witness?s right to freedom of religion is not inherently triggered by participation in the criminal justice process. A witness who seeks to exercise a religious practice while testifying must establish that the practice falls within the scope of the right to freedom of religion as described in the Supreme Court of Canada authorities cited above.

[66] Given the subjective and personal nature of a freedom of religion claim as explained in Amselem, that inquiry must almost inevitably involve testimony from the witness explaining the connection between the practice in issue and his or her religious beliefs. Nor do I think that it does any injustice to call upon the witness who claims that his or her religious beliefs compel certain conduct to adduce evidence to establish that claim within the parameters set out in Amselem and subsequent cases from the Supreme Court of Canada. I would think that, in most cases, the inquiry would be relatively straightforward and would be limited to the witness?s explanation for following the course of conduct in issue...

[67] In evaluating the evidence advanced in support of the religious freedom claim, a court is interested only in whether the practice is a manifestation of the sincerely held personal, religious belief of the witness. The court will not enter into theological debates. Nor is conformity with established or accepted religious practices the ultimate measure of the sincerity of one?s religious beliefs. The inquiry looks to the personal beliefs of the claimant. In this case, it is the manner in which N.S. interprets and practises Islam as it relates to the wearing of the niqab that is important...

[95] The preliminary inquiry judge did not conduct a proper inquiry into N.S.?s religious freedom claim. His order directing her to remove her niqab while testifying constituted an error in law on the face of the record. That order should be quashed.