Update: see previous posts – December 20. 2012 Supreme Court Niqab Ruling: Veil Can be Worn to Testify in Some Cases, December 19, 2012 Supreme Court of Canada to Release Judgment Thursday on Wearing Niqāb While Testifying, March 17, 2011 Supreme Court has Decided to Hear Case concerning Witness (Accuser) Wearing Niqāb While Testifying
The first ruling since the Supreme Court left the decision about face veils to the lower courts brings a predicted result: a trial delay.
When the Supreme Court of Canada released its deeply divided decision that it was up to lower courts to decide whether a woman can testify wearing a niqab, critics warned it would cause endless hearings and delays.
On Wednesday, that prediction appeared to bear out when Ontario Court Justice Norris Weisman, for a second time, ordered N.S. to remove her face covering when she testifies at the preliminary hearing of two men accused of sexually assaulting her in the ’80s.
The lower court ruling — the first of its kind — will not bind other judges, but it gives a taste of what’s to come as this thorny issue continues to bedevil the justice system.
Almost immediately, the woman’s lawyer, David Butt, said he will ask a Superior Court judge to review the decision, further postponing the case, which began in 2008. Butt said his client was “disappointed” that Weisman disallowed expert testimony that facial expressions are not useful when assessing whether a person is telling the truth.
“A crucial element needs to be considered in the balancing test,” Butt said.
But lawyers for the two defendants say Weisman got it right — again — and correctly followed new guidelines set down by the country’s highest court.
“We could be going down this road indefinitely each and every time,” said defence lawyer Douglas Usher, who is representing one of the two accused.
Two of the Supreme Court judges, who were in the minority, decided “no niqab, end of story,” Usher said. Instead, “the court muddled through it … in typical Canadian fashion.”
Lawyer Frank Addario, who argued the case in the country’s highest court on behalf of the Criminal Lawyers Association, said dealing with “this kind of request … ties up litigation, delaying outcomes.”
“Even if a witness has a sympathetic reason for wishing to be accommodated, the risk to the trial process is too high,” Addario wrote in an email. “The answer to everyone who wants to remodel the courtroom should be a crisp, clear ‘No.’”
The nine-page ruling is probably Weisman’s last public word on the issue, which has the potential to further complicate things. On May 1, he turns 75 and under statute must retire from the bench.
The preliminary hearing, which was set for next Monday and Tuesday, is expected to be adjourned pending a decision by the Superior Court.
If that court overturns Weisman’s decision, it would have to be re-litigated before another provincial court judge. If the ruling stands, the case could proceed to the preliminary hearing stage in front of a new judge, though it remains to be seen if N.S. would agree to testify without her veil.
Last week, Usher and Enzo Battigaglia, the lawyer representing the other defendant, argued that if only her eyes were visible, they would be unable to observe her demeanour, which would impair their cross-examination and the judge’s ability to assess her credibility.
Butt argued that N.S. — known in court by her initials — has a constitutionally protected right to freedom of religion, and her Muslim faith, as she practices it, obliges her to wear a veil in the presence of men who are not her relatives.
Back when he ruled in 2008, Weisman said he found her religious belief “is not that strong.” That decision was appealed to two higher courts before landing in the Supreme Court, which sent the case back to him last December.
The country’s highest court said it was up to judges to decide on a case-by-case basis. The court said judges should consider four questions before making a decision, including whether permitting a witness to wear a niqab would create a serious risk to trial fairness.
After N.S. testified in a voir dire last week wearing the garment, Weisman found her religious belief is both “sincere and strong,” but concluded her niqab “will impair accurate assessment of her demeanour and credibility” and could result in wrongful convictions or acquittals.
Battigaglia wrote in an email he sees no basis for another appeal and the matter should proceed, Battigaglia said, warning his client “is in no way waiving his right to a speedy trial.”
The complainant, now 37, alleges she was sexually abused as a child by an uncle and another man over a five-year period, from 1982 to 1987.