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As we speak the Supreme Court docket of Canada launched the extremely controversial resolution of R. v. N.S. which set out the authorized take a look at for allowing a witness to put on a niqab head protecting in felony trials.
Like many Canadian on this subject, the seven decide quorum had been strongly divided of their views on whether or not or not a witness ought to be permitted to testify whereas sporting a non secular protecting. Defence attorneys on this case argued that allowing this follow essentially affected the flexibility for a judges, juries, and counsel to correctly assess a witness’ credibility and manner whereas answering questions on allegations. The counter argument centred round the correct to spiritual freedom protected beneath part 2(a) of the Constitution of Rights and Freedoms.
Differing views, values, and prioritization of rights.
Many views on broadly diverging values and opinions had been supplied by myriad intervenors together with: the Ontario Human Rights Fee, the Barbra Schlifer Commemorative Clinic, the Legal Attorneys’ Affiliation, the Muslim Canadian Congress, the South Asian Authorized Clinic of Ontario, the Barreau du Québec, the Canadian Civil Liberties Affiliation, the Girls’s Authorized Training and Motion Fund, and the Canadian Council on American Islamic Relations.
Finally the Supreme Court docket held, with appreciable dissent, that in circumstances the place a witnesses needs to put on a niqab a authorized take a look at should be utilized to find out whether or not or not it’s applicable. The 4 half take a look at requires the witness to reveal, on a steadiness of possibilities, that:
1) They’re honest of their spiritual views and perception that requires the niqab whereas testifying in a felony continuing;
At this stage, sincerity is to not be confused with the witnesses energy of perception.
2) Would allowing the witness to put on the niqab whereas testifying create a critical danger to trial equity?
This can depend upon a number of components on a case by circumstances evaluation. This may embrace whether or not the proof is uncontested or whether or not credibility evaluation and cross-examination is just not in problem. There aren’t any determinative components a technique or one other however moderately an evaluation the decide should make contemplating all related components.
3) Is there a strategy to accommodate each rights and keep away from the battle between them?
The decide should think about whether or not there are fairly accessible different measures that might conform to the witness’s spiritual convictions whereas nonetheless stopping a critical danger to trial equity.
4) If no lodging is feasible, then the ultimate query is whether or not “the salutary results of requiring the witness to take away the niqab outweigh the deleterious results” of doing so?
For instance:
- What’s the hurt by limiting spiritual beliefs?
- What’s significance of the spiritual follow to the witness?
- What’s the diploma of state interference with that follow, and the precise context within the courtroom?
- Are their broader social harms equivalent to discouraging niqab-wearing ladies from reporting offences and taking part within the justice system?
In comparison with
- Stopping hurt to the truthful trial curiosity of the accused.
- Safeguarding the reputation of the administration of justice.
- Assessing the significance of the witnesses proof and the potential impact on the trial.
The Court docket did make it clear nonetheless, that “the place the freedom of the accused is at stake, the witness’s proof central and her credibility important, the potential for a wrongful conviction should weigh closely within the steadiness.”
A controversial resolution with unsure outcomes and software.
This resolution will little doubt proceed the controversial follow of niqabs in courtroom and different public boards. The Supreme Court docket means that that is an applicable steadiness for all events however I doubt that this would be the final that Canadian’s should take care of this problem. Any change from this current state of affairs, a technique or one other, must come from Parliament which isn’t out of the query. I’m positive that many authorized students and advisors within the authorities the place carefully watching this resolution to opine upon whether or not this does strike the steadiness because the Supreme Court docket held.
A defence lawyer’s view on competing rights and the accused’s proper to a good trial.
From my very own private standpoint, there are few issues extra essential to a talented examiner to have the ability to see the witness and their manner. The slightest hesitation, change in expression, awkward look, flustered complexion can all communicate volumes not solely concerning the witness’ veracity, but in addition easy methods to study the witness as soon as these cues are revealed. There isn’t a doubt that as a defence lawyer I might strongly oppose a witness who needs to put on a niqab in Court docket. What seems considerably tutorial to the Supreme Court docket’s evaluation is that for witnesses who’re “not controversial” and thereby lessening the necessity for removing, these witnesses are sometimes handled by an agreed assertion of information thereby negating the necessity to name them in any respect.
Virtually talking, any witness who truly takes the stand is essential and can little doubt be contested of their software to put on a niqab. Unquestionably, it will add extra pressure and complexity to a authorized system that’s already on the brink of collapse resulting from over capability. It would even be attention-grabbing to see how frequent this request will now come when one considers how uncommon the request to put on a niqab is presently.
Unanswered questions.
This resolution additionally begs one other query: what about when an accused needs to cowl their very own face due to spiritual values? Appreciating that this solely applies to ladies within the current case, this resolution would definitely apply to a feminine accused who needs to precise her personal proper to put on a niqab throughout a felony trial. It would even be attention-grabbing to see what, if any, different spiritual lodging are sought that haven’t been contemplated.
A hyperlink to the full decision can be found here.
– Sean Robichaud, Barrister & Solicitor
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