Tag Archives: N.S.

NS: Veiled Rejection [a very cursory roundup]

NS Finally came out today, as you probably know. The Supreme Court cases considered how law should deal with the claim of a niqab (don’t know what that is? check here)  wearing woman who was to testify as a complainant in a sexual assault trial that wearing the niqab was a religious right – when the accused claimed the wearing of the veil contravened his fair trial rights.

Here is a little roundup.
First, the decision (my nutshell: N.S. Majority: Balancing. LeBel & Rothstein: Niqab is incompatible w fair trial. Abella dissents: No need to remove. )

Second, commentary. There’s not much deep commentary today, but there are quick thoughts and helpful summaries.

My colleague Ben Berger on CTV notes Abella’s foregrounding of #gendered #violence.

My colleage Faisal Bhabha, who appeared for one of the interveners who supported N.S., here in the Globe and Mail.

The court made it very clear that people are not required to park their religion at the door, so to speak,” said Mr. Bhabha…

Poli Sci Prof Emmett Macfarlane in Macleans here.

Balancing rules are akin to parking a tank on one side of a seesaw, writes Emmett Macfarlane…

So long as the decision to wear the niqab is made freely, it ought to be respected from a rights perspective. And in weighing so heavily the risks to a fair trial over not just the latitude given to religious freedom, but also the deleterious and societal effects of providing insufficient protection for them, the majority has handed trial courts a messy confluence of rules likely to do more harm than good.

Ruthann Robson of CUNY law putting Canadians to shame with her quick off the mark blog post here.

“From the perspective of US conlaw scholars, whether or not interested in comparative constitutional law, the Canada Supreme Court’s opinion in R. v. N.S. is an important one seeking to balance rights and addressing an issue that is percolating in the United States courts.”

There is much quick commentary available – especially on Twitter – all very canadian and clean.

From the Abella reasons:

[94]                          This has the effect of forcing a witness to choose between her religious beliefs and her ability to participate in the justice system: Natasha Bakht, “Objection, Your Honour! Accommodating Niqab-Wearing Women in Courtrooms”, in Ralph Grillo et al., eds., Legal Practice and Cultural Diversity (2009), 115, at p. 128.  As a result, as the majority notes, complainants who sincerely believe that their religion requires them to wear the niqab in public, may choose not to bring charges for crimes they allege have been committed against them, or, more generally, may resist being a witness in someone else’s trial.  It is worth pointing out as well that where the witness is the accused, she will be unable to give evidence in her own defence.  To those affected, this is like hanging a sign over the courtroom door saying “Religious minorities not welcome”.

[95]                          The order requiring a witness to remove her niqab must also be understood in the context of a complainant alleging sexual assault.  As this Court stated in R. v. Mills, [1999] 3 S.C.R. 668, “an assessment of the fairness of the trial process must be made ‘from the point of view of fairness in the eyes of the community and the complainant’ and not just the accused” (para. 72): see also R. v. O’Connor, [1995] 4 S.C.R. 411, per McLachlin J., at para. 193.  Creating a judicial environment where victims are further inhibited by being asked to choose between their religious rights and their right to seek justice, undermines the public perception of fairness not only of the trial, but of the justice system itself.

those thoughts are also behind this tweet from @blberger

@blberger LeBel J (concur) in NS: no niqab b/c it “removes the witness” from acts of communication. Worry is literal “removal” of complainants, no?

Second last word

last word:

Your links and thoughts welcome in the comments or on FB

Roundup of IFLS Recent Tweets

In case you aren’t a twitter person, I sometimes put news up on our twitter feed at @osgoodeifls – and I often retweet news from others – here’s a recent roundup.  We also tweet all our posts, if you prefer to get them that way.

Hope you had a happy st. patrick’s day!

 

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Ontario Court of Appeal on the Veiled Complainant: What's the verdict?

(this post now updated with LEAF’s press release, see below)

N.S. came down today.  Decision here: http://www.ontariocourts.on.ca/decisions/2010/october/2010ONCA0670.pdf

Nutshell outcome:

Going back to the Preliminary Inquiry judge.  More “interrogation” of the complainant is necessary to determine how to reconcile the rights at stake.   It could be that she can wear the veil – or perhaps not.

Other points that jumped out at me:

Check out the sunglasses hypothetical at para 42!

LEAF’s argument that the case requires section 7 and 15 of the Charter was rejected on the basis that these were not argued at the lower level.

“Adjusting the process to ameliorate the hardships faced by a complainant like N.S. promotes gender equality.” para 80

“Attempts to reconcile competing interests using “constructive compromises” might include the use of an all female court staff and a female judge. Those measures might also include, where constitutionally permissible, an order that a witness be cross examined by female counsel.” para 85

Click here for an earlier post about this case.

I need more time to read and digest, but here is LEAF’s Press Release:

Ontario Court of Appeal Recognizes Importance of Access to Justice for Niqab-Wearing Women

October 13, 2010 – Toronto – The Ontario Court of Appeal released its decision today in the case of R. v. N.S. on the right of a sexual assault complainant to testify wearing her niqab.

“The Court sent a strong signal today that sexual assault complainants will be permitted to wear their niqabs while testifying, subject to limited exceptions and the strictures of the complainant’s religious beliefs” says LEAF legal director Joanna Birenbaum.  “This is a significant decision affirming the importance of fair trials and access to justice for Muslim women and all sexual assault complainants”.

The Court of Appeal judgment specifically recognizes the “powerful” nature of the complainant’s rights to wear her niqab while testifying, and the unique “hardships” and “particularly vulnerable position” suffered by women who report sexual assault.

The Court also recognizes that Muslims are a “minority that many believe is unfairly maligned and stereotyped in contemporary Canada” and that a failure to adequately consider the complainant’s rights could “legitimize that negative stereotyping”.

“It is also important that the Court confirmed the unreliability of demeanor evidence in general and in the specific circumstance of sexual assault” says LEAF co-counsel Susan Chapman.  “The Court went so far as to hold that allowing the complainant to wear her niqab could advance the truth seeking function of the criminal trial”.  The Court noted that a complainant who normally wears the niqab and is required to unveil cannot be expected to “be herself” on the stand.  A trier of fact might well be misled by her expressions of embarrassment and discomfort.

The Court held that the ultimate decision of whether to permit a witness to testify wearing a niqab must be determined on a case by case basis. A bald assertion of a right to demeanor evidence is unlikely ever to be sufficient, particularly at the preliminary inquiry stage.

LEAF asked the Court of Appeal to consider the demand that a sexual assault remove her niqab in the context of the long history of sexual assault complainants being harassed, re-victimized, humiliated and intimidated, especially at the preliminary inquiry.  Such tactics have long been used to shut down prosecutions or prevent women from reporting sexual assault in the first place.

Chapman explains that “LEAF is pleased that the Court of Appeal recognized this history of discrimination and has clearly indicated that objections to the niqab must be carefully scrutinized in order to fully protect and respect the complainant’s rights and the interests of society in just and fair criminal proceedings”.

For more information, please contact:

Joanna Birenbaum                                                           Susan Chapman

(LEAF Litigation Director/Co-Counsel)                         Co-Counsel

(416) 595-7170 ext. 223 (office)                                      (416) 364-8773 (office)

(647)500-3005 (cell)                                                            (416) 276-2794 (cell)

j.birenbaum@leaf.ca smchapman@papebarristers.com

LEAF is a national, non profit organization committed to confront all forms of discrimination through legal action, public education, and law reform to achieve equality for women and girls under the Charter of Rights and Freedoms. For more information, please visit us at www.leaf.ca

N.S.: Something to read while we wait

Lots of people, I’m sure, are looking forward to seeing the Ontario Court of Appeal’s decision in N.S., a sexual assault case in which the complainant was ordered to remove her niqab after the accused (her uncle and his friend) argued it interfered with their right to a fair trial.

In anticipation of the decision, which should be handed down in the near future, check out this link to What’s in a Face? Demeanour Evidence in the Sexual Assault Context,  available on SSRN.  The author is Ottawa Law Prof. Natasha Bakht Natasha, who is currently on leave, is in a class of her own.  She’s an award winning dancer and choreographer in addition to her “day job”;  she edited Belonging and Banishment: Being Muslim in Canada.  I look forward to hearing her thoughts on this case when it comes down.

What’s in a Face is part of a larger collection edited by Elizabeth Sheehy, coming from Ottawa U Press.

SEXUAL ASSAULT LAW, PRACTICE AND ACTIVISM IN A POST-JANE DOE ERA, Elizabeth Sheehy, ed., University of Ottawa Press, Forthcoming 2011 .

The case began in 2007 when a woman, now 32 and identified only as N.S., told police that her cousin and uncle repeatedly sexually abused her while she was between the ages of six and 10.

During the preliminary inquiry, which is held to see if there is enough evidence to go to trial, the judge ordered N.S. to remove her veil to testify. …..

A lawyer for one of the defendants said N.S. has not said she refuses to testify without her face covered, just that she would feel more comfortable wearing the niqab.

Without being able to view the face of a witness, clues to her demeanour are lost and impede the defendants’ ability to fully cross-examine her, Michael Dineen said.

He gave an example of a teenage witness in a recent murder trial who changed her story on the stand after a defence lawyer questioned her about smirking after giving an answer.

from: http://www.cbc.ca/canada/toronto/story/2010/06/08/niqab-testimony-ontario.htm

Want more on N.S.?

Here’s LEAF’s Factum.

Here is a report from the hearing, which is kind of fun (the judges do seem to be leaning in N.S.’s favour). ah, the globe has put this one behind the pay wall.

Hey, and there’s no photo of a woman in a veil here, even though i could easily pick up a stock shot somewhere:  See  Why do Western Publishers have a Veil Fetish?  http://www.slate.com/id/2153013/ by Asra Q. Nomani for an interesting argument which will resonate in your brain each time you see a picture of a nameless veiled woman illustrating a media piece.