Canadian Lawyer

OPINION the better view in that country seems to be a ban would violate a Muslim woman���s constitutional rights to free religious expression and access to the courts. What about Canada? You might expect a great multicultural country, with an enshrined Charter of Rights guaranteeing fundamental freedoms, would have no trouble allowing someone to wear whatever religious garments she wants, wherever she wants, including in a courtroom. As the chief justice says in R. v. N.S., to remove religion from the courtroom is not in the Canadian tradition.��But there���s that pesky right to a fair trial, also guaranteed by the Charter, which, according to some, might be jeopardized if a witness��� face is covered. How to decide between the two? Here was a chance ��� and a need ��� for the Supreme Court to do what it���s there to do: decide plainly a big and difficult question. Instead, it dithered mightily and failed to give a clear answer, or, indeed, any answer at all. Chief Justice Beverley McLachlin, dismissing N.S.���s appeal, gave the majority judgment, writing for herself and justices Marie Deschamps, Morris Fish, and Thomas Cromwell. She said no clear rule, either for or against the niqab, would be sustainable. What is required is ���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, and (b) the salutary effects of requiring her to remove the niqab outweigh the deleterious effects of doing so. Otherwise, she can keep it on. McLachlin punted a complex problem back to the preliminary inquiry judge. Was this an appropriate, nuanced response? I don���t think so. To me, it just dodged the question. Justices Louis LeBel and Marshall Rothstein, also dismissing the appeal, had a much clearer position. They urged a clear rule that niqabs may not be worn at any stage of a criminal trial. Such a rule, they said, 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. Wearing a niqab, said LeBel giving judgment, does not facilitate acts of communication. Rather, it restricts them. He wrote: ���It removes the witness from the scope of certain elements of those acts on the basis of the assertion of a religious belief in circumstances in which the sincerity and strength of the belief are difficult to assess or even to question.��� Justice Rosalie Abella, who alone would have allowed N.S.���s appeal, had a completely different position and gave the most convincing analysis. She argued it was ���significantly more harmful��� to require a witness to remove her niqab, with the likely result she will not testify, than to prevent the accused from seeing a witness���s entire face.��The courts, she said, regularly accept the testimony of witnesses whose demeanour can only be partially observed ��� for example, from those who have a speech impediment. Furthermore, it is widely accepted, in any event, that there are limits on how far a witness���s demeanour can be relied upon. Finally, said Abella, a witness should not be forced to choose between her religious beliefs and her ability to participate in the justice system. ���To those affected, this is like hanging a sign over the courtroom door saying ���Religious minorities not welcome.������ Abella���s principled position is the correct one in a country like Canada. And, as she cogently points out, it conveniently makes common sense as well. Unfortunately, she was a lone dissenting voice. But worst of all, the Supreme Court, at the end of the day, just didn���t decide anything at all. Philip Slayton���s latest book, Mighty Judgment: How the Supreme Court of Canada Runs Your Life, is now available in paperback. Follow him on Twitter @philipslayton. You told us you���d like to work more ef���ciently. * How���s faster sound? 19% Quicklaw for Microsoft Of���ce. �� �� Focus on delivering work for your clients, not switching between programs. Now, when you���re creating a Word document or working in Outlook��, you can pull content directly from Quicklaw, the open web and your computer and reduce the time required to conduct background research by up to 19%*. Another LexisNexis�� innovation created for legal minds by legal minds. www.lexisnexis.ca/quicklaw-of���ce * A study conducted in the United States in July 2011 by KS&R and CDI Market Research, in conjunction with National Legal Research Group (NLRG), involved 600 time-test observations with multiple legal scenarios and documents. LexisNexis and the Knowledge Burst logo are registered trademarks of Reed Elsevier Properties Inc., used under licence. Quicklaw is a registered trademark of LexisNexis Canada Inc. Microsoft is a registered trademark of Microsoft Corporation in the United States and/or other countries. Other products or services may be trademarks, registered trademarks or service marks of their respective companies. �� 2013 LexisNexis Canada Inc. All rights reserved. QLMO-Ad-02/13 Read the ruling in R. v. N.S. at scc.lexum. org/decisia-scc-csc/scc-csc/scc-csc/ en/item/12779/index.do. www.CANADIAN ntitled-2 1 L a w ye r m a g . c o m March 2013 17 13-02-11 2:30 PM

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