Confronting Religion: Veiled Witnesses, the Right to a Fair Trial and the Supreme Court of Canada's Judgment in R v N.S.

AuthorKarl Laird
DOIhttp://doi.org/10.1111/1468-2230.12059
Publication Date01 Jan 2014
nevertheless interesting to observe what may be described as the more interven-
tionist approach consciously taken by the Court of Appeal. The hands-off
non-judgmental approach advocated by previous case-law referred to above
seems to be displaced by a much more confident judicial approach. The per-
ceived role as ‘judicial parent’ seems to have imbued the court with a confidence
to question the (moral) judgments of other parents or communities. While
arguably this is how they saw their role in the context of this private law dispute,
Munby LJ’s attempt to rationalise his decision in part on the grounds of an
equality value (whether rightly or wrongly), suggests that family law has become
infiltrated by notions more familiar to discrimination lawyers.
This more hands-on approach has, in the opinion of this author, something
of the flavour of ‘post-multi-culturalism’56 about it. It is difficult, especially for
the liberal, to tolerate minority religious communities having the freedom to
practise as ‘islands’57 when this necessarily entails giving them the right to bring
their children up according to their beliefs, even where these do not fall into the
‘grotesque harm’58 category. The temptation to create further principles such as
‘maximising educational opportunity’ needs to be balanced with a consideration
of other principles such as the fifth principle alluded to above of the ‘detrimental
effect to way of life’. Furthermore, a proper appreciation of religious issues in the
courts, insofar as these affect children and families, requires a ‘cognitively inter-
nal’59 viewpoint. This note has attempted to address the limitations of Re G in
this respect. To the extent that ReGsignals a hands-on approach in this context,
it is submitted that any attempt to treat it as a test-case should be approached with
some caution.
Confronting Religion: Veiled Witnesses, the Right to a
Fair Trial and the Supreme Court of Canada’s Judgment
in RvN.S.
Karl Laird*
The Supreme Court of Canada’s decision in RvN.S. is significant because the majority seems
to endorse an understanding of confrontation that assumes a defendant’s right to a fair trial is
imperilled by a witness who seeks to give evidence while wearing the niqab. The case is of interest
because it permits reflection upon the interrelationship between the right to a fair trial and the
right to confront witnesses enshrined in Article 6 of the European Convention on Human Rights.
56 See C. McCrudden, n 10 above.
57 See A. Esau, ‘Islands of Exclusivity: Religious Organizations and Employment Discrimination’
(1993) 33 UBC Law Rev 719.
58 Outside the category of the grotesque categories, much depends on the definition of ‘harm’.
59 See n 37 above.
*Lecturer in Law, Exeter College, University of Oxford; Senior Retained Lecturer, Pembroke
College, University of Oxford. I would like to thank David Ormerod, Philip Purvis and the anony-
mous reviewer for their comments on previous drafts. The usual caveat applies.
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Karl Laird
© 2014 The Author. The Modern Law Review © 2014 The Modern Law Review Limited. 123(2014) 77(1) MLR 110–138
Given that the European Court of Human Rights conceptualises confrontation in epistemic
terms, it is argued that it would be unlikely to find that a conviction based upon evidence from
a niqab-wearing witness would infringe the right to a fair trial. This note examines the value of
demeanour evidence and whether the majority in RvN.S. was correct that the abrogation of the
ability to assess demeanour evidence necessarily undermines trial fairness.
Then call them to our presence; face to face,
And frowning brow to brow, ourselves will hear
The accuser and the accused freely speak . . .1
INTRODUCTION
Can a witness be permitted to wear the niqab2while giving evidence or would
her doing so violate the right to a fair trial? In simple terms this was the issue
before the Supreme Court of Canada in RvN.S.3A majority of the Court held
that the wearing of the niqab by a witness had the potential to violate the
defendant’s right to a fair trial. In reaching this decision, like Shakespeare’s
Richard II, the majority of the Court placed emphasis on the defendant’s ability
to confront his accuser face-to-face. This was not the decision of the entire court,
however. Abella J dissented while LeBel and Rothstein JJ thought that the
majority judgment did not go far enough in upholding the rights of the defen-
dants and in ensuring that the trial process fulfils its communicative function.
What follows examines the issues presented in the case and is divided into
three sections. The first section will disentangle the judgments with the aim of
ascertaining the practical effect of the majority decision. The second section will
consider whether a conviction based upon evidence from a veiled witness has the
potential to violate the right to confrontation enshrined in Article 6(3)(d) of the
European Convention on Human Rights (the Convention). A comparative
analysis is especially appropriate in this instance, given that the Canadian Charter
of Rights and Freedoms (the Charter) and the Convention derive the right to
confront witnesses from the same source4and both conceptualise the right in
1Richard II, Act I, Scene I.
2 Defined as ‘a veil worn by some Muslim women in public, covering all of the face apart from the
eyes’: see Oxford Dictionary of English. Presumably this analysis would also apply a fortiori to a
witness whose face was not visible for other reasons, although for the purposes of the Convention
analysis, the reason would have to be a weighty one.
3RvN.S. 2012 SCC 72 (N.S.).
4 Both derive confrontation from the rationalist tradition of evidence scholarship, which emphasises
orality, the jury and adversarial proceedings: see W. Twining, Theories of Evidence: Bentham &
Wigmore (London: Weidenfeld & Nicolson, 1985). Of course Bentham, who included cross-
examination as part of his Natural System of Procedure, would not have called it (or anything else
for that matter) a ‘right’. The travaux préparatoires on Article 6 do not shed much light on where the
right originated: available at http://www.echr.coe.int/library/colentravauxprep.html (last visited
18 June 2013). The right in the Charter seems to be derived from ‘principles of fundamental
justice’: cf RvSeaboyer [1991] 2 SCR 577. See R. J. Sharpe and K. Roach, The Charter of Rights
and Freedoms (Toronto: Irwin Law, 4th ed, 2009).
Veiled Witnesses and Canada’s decision in RvN.S.
© 2014 The Author. The Modern Law Review © 2014 The Modern Law Review Limited.
124 (2014) 77(1) MLR 110–138

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