In their December 2012 decision in R. v. N.S. the Supreme Court of Canada decided that a Muslim witness does not have the right to wear her niqab when testifying in court against two men accused of sexually assaulting her. The decision split the Court: 4-2-1.
Dissenting, Justice Rosalie Abella would accord niqab-wearing Muslim women the right to testify. Justice Louis LeBel with Justice Marshall Rothstein would deny them this right. Despite disagreeing with the majority position that niqab bans should be decided on a case-by-case basis, LeBel's opinion is not labelled a dissent. It is "concurring" because he agreed with the majority decision to remit the ban in N.S. to the preliminary inquiry judge who issued it.
Why the inconsistency? "Because of the way the litigation and the appeals were conducted," LeBel wrote. His statement lacks the force of principle. What story might we tell about this inconsistency? Did the justices fear leaving the final outcome to a bare majority might give rise to an allegation of "Islamophobia" in a world all-too-ready to use this label? After all, no Muslim sits or has ever sat on the Supreme Court of Canada. Or did LeBel and Rothstein want to send a message to the preliminary inquiry judge expressing faith in his ability to make the right decision again?
Such speculations are not the stuff of legal analysis. Common law legal analysis demands reasoning from precedent. Authored by Chief Justice Beverley McLachlin, the majority decision forged a new framework for niqab ban cases by relying on two precedents that involved publication bans: Dagenais v. Canadian Broadcasting Corporation and R. v. Mentuck. McLachlin did not explain the analogy between niqab and publication bans. While publication bans aim to protect identity and preserve the presumption of innocence, these objectives are not necessarily identical under niqab bans.
Identity is a complex matter in R. v. N.S.. Given that the accused assailants were her uncle and cousin, they knew the identity of the testifying victim. From N.S.'s perspective, her identity as a Muslim woman was threatened by the niqab ban. Her faith requires her to cover her face in the presence of men who are not members of her immediate family. Removing her niqab would rob her of her religious identity just as would depriving a Jewish man of his kippah, a Sikh of his turban or an Amish of his hair. Nor is the link between the niqab and the presumption of innocence transparent, despite the chief justice's repeated reference to the niqab portending a wrongful conviction. If the niqab is such a serious impediment, might wearing it not result in a wrongful acquittal?
What if the majority had not analogized the niqab and publication ban cases? The issue whether the niqab ban violated the guarantee of freedom of religion under Section 2(a) of the Canadian Charter of Rights and Freedoms could be resolved using two precedents. One, Syndicat Northcrest v. Amselem, was invoked directly or indirectly by all eleven appellate judges in R. v. N.S.. Amselem requires a religious belief be "sincere", not "strong" as the preliminary inquiry judge maintained when he used N.S.'s removal of the niqab for her driver's licence photo to deny her religious claim. The other precedent, R. v. Oakes, sets out the justificatory test required under Section 1 of the Charter.
In Oakes, Chief Justice Brian Dickson designed the justificatory test with two central criteria: (1) the impugned measure must have a pressing and substantial objective, and (2) it must meet a proportionality test. This proportionality test had three components: (1) there must be a rational connection between the impugned measure and the objective; (2) the impugned measure must impair as little as possible (minimally impair) the right in question; and (3) there must be a proportionality between the effects of the impugned measure and the objective.
Despite lip-service to the Oakes test, the N.S. majority did not apply it. Instead, McLachlin adopted a justificatory test proposed by Chief Justice Antonio Lamer in Dagenais. He had decided it was "necessary to reformulate the common law rule governing the issuance of publication bans in a manner that reflects the principles of the Charter." He believed, and most scholars accept, that this reformulation enhances the Oakes test. In Dagenais, McLachlin issued a concurring opinion (as a non-chief justice) in which she relied on Oakes and made no mention of Lamer's reformulation.
Breaking her silence in N.S., McLachlin incorporated the Dagenais reformulation (slightly modified by Mentuck) in her new framework, posing four questions:
- Would requiring the witness to remove the niqab while testifying interfere with her religious freedom?
- Would permitting the witness to wear the niqab while testifying create a serious risk to trial fairness?
- Is there a way to accommodate both rights and avoid the conflict between them?
- If no accommodation is possible, do the salutary effects of requiring the witness to remove the niqab outweigh the deleterious effects of doing so?
Question two changes the focus of the analysis by asking whether the niqab creates a "serious" risk (drawing on the Mentuck modification of Dagenais which would have asked whether the niqab presents a "real and substantial" risk). In contrast, Oakes would ask whether the ban has a "pressing and substantial" objective. Granted "serious," "real," "substantial" and "pressing" express qualitative similarities (viz. all are more than trivial), the reformulation targets the niqab; Oakes, the ban. The ban, not the niqab, is the state action that N.S. impugned; the ban is what the state and the accused must justify. Moving the lens from the ban to the niqab removes the state and the accused from the framework and inserts N.S. But justification is not N.S.'s task.
The new framework poses no question that addresses the first component of the Oakes proportionality test: rational connection. This omission allowed McLachlin to advance a "common law assumption" for which she provided no evidence or precedent, and about which she said "[t]he record sheds little light." According to this assumption, "the ability to see a witness's [sic] face is an important feature of a fair trial." She refused to weigh arguments and articles submitted by N.S. and supporting interveners to the effect that the importance of seeing a witness's face has been greatly exaggerated. According to McLachlin, they had not been tendered "through an expert available for cross-examination." But then neither was her assumption.
Question three of the chief justice's new framework subverts the minimal impairment component of the Oakes proportionality test. Question three provides an optional remedy if there is an alternative to the ban, the Court will accommodate it. In contrast, the Oakes minimal impairment requirement is a mandatory test; failing it means the ban also fails. Moreover, Charter jurisprudence shows the court seldom "saves" an absolute ban; the state must consider alternatives. Ironically, then, McLachlin probably issued her concurring opinion in Dagenais to make the point that the publication ban should be set aside because it failed the rational connection and minimal impairment tests. Would she have adopted the same approach in N.S. if the rational connection and minimal impairment tests had continued to figure into her justificatory analysis?
Question four stole all the thunder when Lamer first announced it in his Dagenais reformulation. But, unlike the rest of his reformulation, it makes no significant change to the third (proportionality) component of the Oakes proportionality test. My comment about McLachlin's response to this question in N.S. is that there was no reason to reach it. The majority should have decided that the niqab ban, like the publication ban in Dagenais, failed the rational connection and minimal impairment tests.
Sending the justificatory test back to the preliminary inquiry judge will not assist N.S. if he follows McLachlin's new framework. Derived as it is from the Dagenais/Mentuck reformulation, this framework weakens the protection Oakes offers to niqab-wearing women. Of course, the new framework is attractive to judges. It applies easier standards to the task of justifying court orders. But, given its origins, this new standard applies not just to court orders concerning niqab bans, but to those involving publication bans and who knows what else.
Beverley Baines is a Professor of Law at Queen's University Faculty of Law. Her research examines the constitutionality of state interference with the equality rights and religious freedom of women in Canada. She focuses specifically on issues raised by banning the niqab, criminalizing polygamy, and restricting faith-based family law arbitrations.
Suggested citation: Beverley Baines, Banning the Niqab in the Canadian Courtroom: Different Standards for Judges, JURIST - Forum, Jan. 24, 2013, http://jurist.org/forum/2013/01/bev-baines-canada-niqab.php
This article was prepared for publication by Michael Kalis, an associate editor for JURIST's academic commentary service. Please direct any questions or comments to him at firstname.lastname@example.org