Must Muslim women remove their veils when testifying in court?

On June 8th 2010, a precedent-setting case was determined whether a woman can wear a niqab while testifying in Canadian courts. This issue had a leading feminist group and a national Muslim organization on opposite sides of this contentious issue. But their respective positions, outlined in written arguments filed with the Ontario Court of Appeal, may come as a surprise.

The Women's Legal Education and Action Fund (LEAF) argued that an alleged victim of sexual assault must be permitted to wear the Muslim veil if it is part of her religion.

The use of the niqab, which exposes only the eyes of a woman, has come under increasing criticism in Quebec and many European countries, where it has been characterized as a sign of oppression.

The Quebec government introduced legislation last spring to require people to have their faces uncovered when receiving or dispensing public services. French President Nicolas Sarkozy has stated that the burka and niqab are not welcome in that country. In Belgium, a parliamentary committee voted to ban the wearing of the garments in public places.

The case before the Ontario Court of Appeal, which is part of an ongoing proceeding involving a 32-year-old Toronto Muslim woman who alleges she was sexually abused as a child by two male relatives.

One of the accused, who is facing serious criminal charges, contended that his right to make full answer and defence required that he, his counsel and the preliminary inquiry judge be able to see the accuser’s face when she testifies and, in particular, when she is cross-examined.

In a New Zealand case, a judge said in his ruling; “Although effective cross-examination is generally the outcome of careful preparation and a thorough grasp of the case, the actual process is often partly instinctive. It involves an ongoing evaluation of how the witness is performing and, particularly what are sensitive areas from that witness’s point of view. Tiny signals, quite often in the form of, or involving, facial expressions are received and acted upon almost, sometimes completely, unconsciously by the cross-examiner. Cross-examining counsel do not have the luxury of being able to make judgments as to what to ask and how to ask it against an overview such as a judge enjoys at the conclusion of a case. A distinction needs to be drawn between the significance of demeanour in the context of such an overview and the significance of demeanour to counsel in what is, in many ways, a ‘heat of battle’ situation, in making what needs to be virtually instantaneous decisions in the course of conducting a cross-examination.”

Now you may ask; why is it important that the judge, the jury, the prosecutor and the defence lawyer be able to watch the face of the witness when she is testifying?

A facial expression results from one or more motions or positions of the muscles of the face. These movements convey the emotional state of the individual to observers. Facial expressions are a form of nonverbal communication. They are a primary means of conveying social information among humans.

Because expressions are closely tied to emotion, they are more often involuntary. It can be nearly impossible to avoid expressions for certain emotions, even when it would be strongly desirable to do so. For example, a woman who claims that she was raped by the accused and in fact, she really was raped by the accused, she will have on her face the expression of either horror or disgust, which could add credence to her evidence. If on the other hand, she describes her experience with a straight face or a hint of a smile, this could mean that her testimony could be highly suspect. These are expression that should be seen by the people as I mentioned in the previous paragraph.

I don’t think it is necessary for the accused to see the expressions of the face of his accuser. It is not he who is asking the questions of making the decision as to whether or not the witness is telling the truth or lying.

There would be an exception however. There may be sexual assault cases where the accused contends that neither the name of the complainant nor the details of the allegations provided in the disclosure mean anything to him. In effect, the accused asserts that the charges against him are a terrible mistake and he is at a loss to understand the basis for the charge. He said, “I am not sure how an accused could defend himself in that situation without seeing the face of the complainant.”

In its arguments, LEAF says the paramount concern of the court should be to protect the religious rights and comfort of a female victim of a sexual crime. The feminist organization, which has played a role in many key Charter of Rights cases involving equality issues, stresses it is not taking a position on the use of the niqab in general. Its focus is on the right of an alleged victim of sexual assault ‘to have access to justice without having to relive being forcibly uncovered.’

LEAF further states that requiring a Muslim woman to remove her veil while testifying could very well be seen and experienced as an act of racial, religious and gendered domination.

In contrast, the Muslim Canadian Congress maintains that religious freedoms are not absolute and must be balanced against the long-standing right of a criminal defendant to see his accuser in court and assess demeanour. As well, the Muslim group argues that the Charter should not be used to promote gender inequality. "The covered female face is a reminder to the wearer that she is not free and to the observer that she is a possession.”

The founder of the organization, Tarek Fatah, said that it is not trying to make it more difficult for Muslim women to testify in sexual assault cases. “They should be treated like any other woman and receive the same protections," he said. (The Criminal Code provides for witnesses to testify by closed circuit television or behind a screen where they can be seen, but they cannot see the accused). This is a misuse of religion,’ said Mr. Fatah. “The wearing of a ‘niqab’ is a ‘political statement" and an attempt to thumb your nose at western cultures,” he added.

LEAF counters that fair trial rights are being used as an excuse to justify stereotypes. “In the current political climate of fear and distrust of veiled Muslim women, courts and juries need to be alert to existing prejudices that a Muslim woman who covers her face cannot be believed,” writes Susan Chapman, a lawyer representing LEAF.

The case is the first time an appellate court in Canada has been asked to decide if a witness may wear a veil while testifying.

At a preliminary hearing in fall of 2008, Ontario Provincial Court Justice Norris Weisman ordered the woman to testify without the niqab. The decision was appealed and Superior Court Justice Frank Marrocco ruled in April 2009 that there should have been a more thorough hearing to assess the sincerity of the woman's religious beliefs.

The preliminary hearing has now been on hold for nearly 20 months as a result of the various appeals.

Along with LEAF, the Ontario Human Rights Commission and the Canadian Civil Liberties Association had joined to support the woman in her desire to wear the niqab. The civil liberties group ultimately came down on the side of an alleged victim of crime over the rights of a defendant to see his accuser. It suggested that religious freedoms and the comfort of a witness in court must take precedence over fair trial rights.

The Criminal Lawyers' Association of Ontario and the two defendants in the ongoing case share the views of the Muslim Canadian Congress and want the court to order the woman to remove the veil while testifying.

The Ontario government is seeking to narrow the debate. It suggests the Court of Appeal need not make a sweeping decision on whether a veil may be worn in court. Instead it recommends the creation of a ‘legal framework’ to assist lower courts in deciding the issue on a case-by-case basis.

At the preliminary hearing, the judge asked the witness as to why she wanted to have her face covered while she was giving her testimony. Here is what she said, word for word in reply to the question.

WITNESS: “Okay. So the – the objection is very strong. It’s a respect issue, one of modesty and one of – in Islam, we call honour. The other thing is the – the accuseds in the case are from the same community, they all go to the same place of worship as my husband as well and I’ve had this veil on for about five years now and it’s – my face doesn’t make any special, you know, like, I know that – you know, there’s body language, there’s eye contact. I mean, I can look directly at the defence counsel, that’s not a problem. But I don’t – you know, I really feel that, you know, it’s a part of me and showing my face to – and it’s also about – the religious reason is to not show your face to men that you are able to marry. It’s to conceal the beauty of a woman and, you know, we are in a courtroom full of men and one of the accused is not a direct family member. The other accused is a direct family member and I, you know, I would feel a lot more comfortable if I didn’t have to, you know, reveal my face. You know, just considering the nature of the case and the nature of the allegations and I think, you know, my face is not going to show any signs of – it’s not going to help, it really won’t.

THE COURT: All right. So there is a difference of opinion as between you and counsel as to whether it will help. Now, can you just tell me, when are you without your veil?

WITNESS: Only with family members. So people that you are not allowed to marry. So, father, brother, father in law, dads, brothers, moms. brothers and women, all women, and children.

THE COURT: But not in public.

WITNESS: Not in public, no.
It is not my intention to go into my own views about the issue of Muslim women hiding their faces over the issue of honour as I have dealt with this issue in a previous blog.

The judge after hearing arguments on both sides later said; “It may be one thing for a female photographer to take the picture but that driver’s licence can be required to be produced by all sorts of males all the way from police officers and border guards and numerous people who simply ask for your driver’s licence for the purpose of identification when you produce your credit card, or whatever, and so it did not satisfy me as the trier of fact that it was consistent with the strength of the Witness’ belief to be content to have her face unveiled on a driver’s licence open not only for the female photographer to see but for numerous males and modern society. The other thing is that in investigating just how important a belief this was, it came down to her candid admissions that it was a matter of her being ‘more comfortable’ and to me that really is not strong enough to fetter the accused’s right to make full answer and defence. So, in making this admittedly difficult decision and balancing the complainant’s right of religion against the accused’s right to make full answer and defence including the right to disclosure upon a preliminary inquiry, I find that the complainant’s religious belief is not that strong, and that it is not open to exceptions and that it is, as she says, a matter of comfort and I think she has to testify in this preliminary inquiry without the use of her veil. ” unquote

As an example, consider a witness who is wearing dark sunglasses when that witness takes the stand. As a matter of course, a preliminary inquiry judge would ask the witness why he or she was wearing sunglasses. There are several possible responses. The witness may be wearing sunglasses as a fashion statement in the exercise of his or her right to freedom of expression. The witness may be wearing sunglasses because a disability requires the witness to shield his or her eyes from the bright lights of the courtroom. The witness may be wearing sunglasses to disguise his or her appearance out of fear that the accused may seek retribution against that witness. All of these explanations can be expressed in terms that invoke constitutional values. The party seeking to cross-examine the witness may argue that those sunglasses inhibit the questioner’s ability to fully assess the witness’s reaction to the questions and effectively cross-examine the witness. This, too, impacts on constitutional values.

The matter went to a Superior justice for a ruling. The justice held, that where an application is made to require a witness to remove her niqab, the court must enquire into the reason for the wearing of the niqab and the genuineness of any religious belief relied on to explain the wearing of the niqab. On such an inquiry, the witness would be permitted to wear the niqab and could be questioned by both counsel. If the preliminary inquiry judge was satisfied that the witness was wearing the niqab ‘for a religious or other valid reason’, she should be permitted to testify wearing the niqab.

He indicated that the trial judge was a court of competent jurisdiction for the purposes of the Charter and would be required to balance the competing Charter values raised by the witness’s desire to testify while wearing a niqab.

The Superior Court justice quashed the order requiring that the witness testify without a niqab and remitted the matter to the preliminary inquiry judge for determination in accordance with the procedure outlined in his reasons. The witness objected to the preliminary judge being able to make such a ruling and the matter finally ended up before the Ontario Court of Appeal.

The court referred to a similar case as a reference. It said that where the accused brought an application requiring the production at the preliminary inquiry of certain psychiatric records of the victims. At the time, the production of the records was governed by the provincial mental health legislation. In holding that the preliminary inquiry judge had jurisdiction to decide whether the records should be produced, Arbour J.A. said;

“What the provincial court was asked to do in this case was to hear the evidence for both parties. In doing so, he must inevitably decide its admissibility. He was not asked to adjudicate an alleged infringement of the Charter, nor to grant a constitutional remedy. Within the context of the preliminary inquiry proceedings, he was competent to determine the admissibility of the mental health records within the procedures set out in s. 35 of the Mental Health Act.” unquote

Part XVIII of the Criminal Code gives the preliminary inquiry judge powers to make orders that must inevitably engage a consideration of potentially competing Charter values. One example will suffice to make the point. Section 537(1)(h) authorizes a preliminary inquiry judge to close the courtroom to the public where ‘the ends of justice will be best served by so doing’. In exercising that statutory power, the preliminary inquiry judge will inevitably be required to address values underlying a variety of constitutional rights, potentially including those protected by s. 2(b) (freedom of expression), s. 8 (privacy rights), and s. 11(d) (fair trial rights). Whatever order the preliminary inquiry judge makes, however, will be made pursuant to his or her statutory power under s. 537(1)(h) and not pursuant to any Charter remedial power.

The real issue before the Court of Appeal was; ‘Did the preliminary inquiry judge have jurisdiction to decide whether the witness, should be required to remove her niqab before testifying?’

Mr. Justice Doherty, writing for the majority of the Court of Appeal said;

“I am satisfied that just as the preliminary inquiry judge has the power to regulate how and when a witness will testify, he or she has the power to determine whether a witness should be required to change his or her attire before testifying. If a witness’s attire is interfering with the proper conduct of the preliminary inquiry, the authority to regulate the conduct of that inquiry must include the ability to order the witness to alter his or her attire so as to permit the proper conduct of the inquiry. The attire of a witness may be inappropriate in the courtroom for a variety of reasons. For example, clothing that demonstrates a disrespect for the proceedings and thereby interferes with the proper conduct of the proceeding must not be tolerated. That is, of course, not this case. However, Mr. Butt, the lawyer for the accused argues that the wearing of the niqab interferes with his ability to properly cross-examine the witness and, therefore, interferes with the proper conduct of the inquiry.” unquote

Mr. Butt, counsel for the witness made a valid point by saying that credibility assessments based on demeanour can be unreliable and flat-out wrong. He said that assessments of credibility based on demeanour can reflect cultural assumptions and biases. Judgments based on demeanour are no substitute for those based on a critical analysis of the substance of the entire evidence. Appellate courts have repeatedly cautioned against relying exclusively or even predominantly on demeanour to determine credibility. Mr. Butt also makes the valid point that the trier of fact does not lose all aspects of demeanour evidence if the witness wears a niqab. The trier of fact will still be able to consider the witness’s body language, her eyes, her tone of voice and the manner in which she responds to questions. All are important aspects of demeanour.

Mr. Justice Doherty responded with the argument that it is however an undeniable fact that the criminal justice system as it presently operates, and as it has operated for centuries, places considerable value on the ability of lawyers and the trier of fact to see the full face of the witness as the witness testifies.

Appellate deference is justified to a significant extent on the accepted wisdom that trial judges and juries have an advantage over appeal judges in assessing factual questions because they, unlike appeal judges, have seen and heard the witnesses when they gave their testimony.

The criminal justice system assumes that the truth is most likely to emerge through a public adversarial process. Face-to-face confrontation, especially between an accused and his accuser, is a feature of that adversarial process. The value of confrontation to the cross-examiner cannot be dismissed because credibility assessments based on demeanour, like credibility assessments based on anything else, can prove to be wrong. An accused who is denied the right to see the full face of a Crown witness, particularly the accuser, during cross-examination loses something of potential value to the defence. Whether he loses his constitutional right to make full answer and defence in a fair trial will depend on a fact-specific inquiry. That inquiry must look to the actual effect of denying face-to-face confrontation of the witness in the circumstances of the particular case. That inquiry must also have regard to other legitimate interests engaged in the circumstances and the constitutional values underlying those interests.

The issue of religion was dealt with by the Court of Appeal in this case. It was the contention of the witness’ lawyer, Mr. Butt that section 2(a) of the Charter which guarantees freedom of religion, protects her right to wear her niqab while testifying. He added that the Supreme Court of Canada jurisprudence takes a broad and expansive approach to religious freedom.

In another case, Amselem, Mr. Justice Iacobucci described the constitutional protection afforded freedom of religion as:
“The freedom to undertake practices and harbour beliefs, having a nexus with religion, in which an individual demonstrates he or she sincerely believes or is sincerely undertaking in order to connect with the divine or as a function of his or her spiritual faith, irrespective of whether a particular practice or belief is required by official religious dogma or is in conformity with the position of religious officials. But, at the same time, this freedom encompasses objective as well as personal notions of religious belief, ‘obligation’, precept, custom, or ritual and ‘commandment’. Consequently, both obligatory as well as voluntary expressions of faith should be protected under the Quebec (and the Canadian) Charter. It is the religious or spiritual essence of an action, not any mandatory or perceived – as – mandatory nature of its observance that attracts protection.” unquote

As we can all see, an inquiry into the mandatory nature of an alleged religious practice is plagued with difficulties.

Mr. Justice Iacobucci also described the approach to be taken to a claim that conduct was protected by s. 2(a) of the Charter when he wrote in his decision;

“Thus, at the first stage of a religious freedom analysis, an individual advancing an issue premised upon a freedom of religion claim must show the court that (1) he or she has a practice or belief having a nexus with religion, which calls for a particular line of conduct, either by being objectively or subjectively obligatory or customary, or by, in general, subjectively engendering a personal connection with the divine or with the subject or object of an individual’s spiritual faith, irrespective of whether a particular practice or belief is required by official religious dogma or is in conformity with the position of religious officials; and (2) he or she is sincere in his or her belief.” unquote

Mr. Justice Doherty response to that ruling was and again I quote;

“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. I note that Mr. Butt, in oral argument, advised the court that the witness welcomed the opportunity to explain to a judge why she felt the very real obligation to wear her niqab while testifying.” unquote

He added; “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 the witness interprets and practices Islam as it relates to the wearing of the niqab that is important.” unquote

In the Amselem case, Mr. Justice Iacobucci described the nature of the inquiry into religious belief in these terms:

“Assessment of sincerity is a question of fact that can be based on several non-exhaustive criteria, including the credibility of the claimant’s testimony as well as an analysis of whether the alleged belief is consistent with his or her other current religious practices. It is important to underscore, however, that it is inappropriate for courts rigorously to study and focus on the past practices of claimants in order to determine whether their current beliefs are sincerely held. Because of the vacillating nature of religious belief, a court’s inquiry into sincerity, if anything, should focus not on past practice or past belief but on a person’s belief at the time of the alleged interference with his or her religious freedom.” unquote

In other words, it doesn’t matter if a million Muslims don’t wish to publicly show their faces while in the witness box, it is really what the witness herself believes when she is in the witness box.

Mr. Justice Doherty said in his ruling;

“In measuring the sincerity of the witness’s asserted religious belief, her decision to allow her picture to be taken without her niqab to obtain her driver’s licence (and any other exceptions she may make) may provide some insight into whether her current religious beliefs dictate that she wear the niqab while testifying. A court cannot, however, reason that because a person has made exceptions to her religious beliefs in the past, or perhaps has simply failed to follow her religious practices in the past, that her present assertion of those beliefs is not sincere. Past practice cannot be equated with present belief. Few among us who have religious beliefs can claim to have always acted in accordance with those beliefs. Past perfection is not a prerequisite to the exercise of one’s constitutional right to religious freedom.” unquote

He further pointed out that if the judge is satisfied that both the witness’ religious freedom claim and the accused’s right to cross-examine claim are sufficiently engaged, the judge must then attempt to reconcile those two rights by giving effect to both. It is at this stage that context becomes particularly important. Context includes the somewhat limited manner in which the wearing of the niqab interferes with the trier of fact’s assessment based on demeanour. The trier of fact still hears and sees the witness. Tone of voice, eye movements, body language, and the manner in which the witness testifies, are all important aspects of demeanour, and are unaffected by the wearing of the niqab. Nor does the wearing of the niqab prevent the witness from being subjected to a vigorous and thorough cross-examination.

Context also includes the nature of the evidence to be given by the witness who wants to wear her niqab. If her evidence is relatively peripheral, or if it is clear that the witness’s credibility will not be an issue, arguments that the removal of the niqab is essential to permit cross-examination become weak. However, where the witness who claims the right to wear a niqab is central to the prosecution case and her credibility is virtually determinative of the outcome, an argument that a full view of the witness’s face, at least at trial, is essential to cross-examination becomes a much stronger argument.

Perhaps the most difficult aspect of the contextual analysis is that which requires the court to take into account other constitutional values and societal interests that may be affected by the judge’s decision whether a witness should be required to remove her niqab.

There is also a significant public interest in getting at the truth in a criminal proceeding. Arguably, permitting the witness to testify while wearing her niqab would promote that interest. Without the niqab, the witness would be testifying in an environment that was strange and uncomfortable for her. One could not expect her to be herself on the witness stand. A trier of fact could be misled by her demeanour. Her embarrassment and discomfort could be misinterpreted as uncertainty and unreliability. Furthermore, there may be cases where the Crown determines that it cannot in good conscience call upon the witness to testify if she is forced to remove her niqab. In those cases, the evidence will be lost and a trial on the merits may be impossible – hardly a result that serves the public interest in the due administration of justice.

On the other hand, there is also a societal interest pointing against a witness wearing a niqab when testifying. Society has a strong interest in the visible administration of criminal justice in open courts where witnesses, lawyers, judges and the accused can be seen and identified by the public. A public accusation and a public response to that accusation, in a forum which tests the truth of the accusation through the adversarial process, enhances public confidence in the administration of criminal justice. All engaged in the criminal process, including witnesses, judges and lawyers, are ultimately accountable to the public. Allowing a witness to testify with her face partly covered affords the witness a degree of anonymity that undermines the transparency and individual accountability essential to the effective operation of the criminal justice system. Viewed from this perspective, allowing the witness to wear a niqab while she testifies could compromise public confidence both in the conduct of the criminal trial and in the eventual verdict.

The Court of Appeal ruled that 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.