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

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