Last week, an Ontario judge at a preliminary inquiry ruled a woman who accused two men of sexual assault must remove her niqab -- an Islamic face veil -- when testifying in court. The 37-year-old woman, identified only as N.S., alleges the men sexually assaulted her for more than five years, starting when she was six years old.
The preliminary inquiry decision was both near-predictable and the latest step in a six-year legal odyssey that saw the case bounce up and down the criminal justice system.
Late last year, the case finally got to the Supreme Court of Canada. But Canada's highest court, instead of giving a determinative yes-or-no answer to the question of whether the complainant could cover her face while giving evidence in court, fudged its response.
The Supreme Court crafted a brand-new, fourfold test for judges to employ when deciding whether the niqab could be worn while testifying. It then punted the case back down to the preliminary-inquiry court where it all began.
The Supreme Court's test requires judges to consider the veiled witness's "sincerity of belief," any risk to "trial fairness," other possible ways to accommodate the religious beliefs, and whether the "salutary" effects of ordering removal of the niqab outweigh the "deleterious" effects.
The Ontario judge duly applied the test in light of the facts, and to the surprise of few legal observers, ruled the veil must be removed because it "masks her demeanour and blocks effective cross-examination by counsel for the accused and assessment of her credibility by the trier of fact."
The right to look your accuser in the eye has deep roots in Canadian law. It's part of English common law that Canada inherited from Great Britain.
As the Ontario judge underlined, it is critical to the right to cross-examine someone who's testifying against an accused. A trial court must be extremely leery of inhibiting full and proper cross-examination of a witness, particularly a witness who's also the complainant in a criminal trial.
Cross-examination is one of the few tools of defence available to an accused when confronted with the prosecutorial machinery of the state. It would, barring exceptional circumstances, be a grave error to restrict its ambit by masking the face of an accuser.
The Supreme Court has tried to balance the witness's religious beliefs as against an accused's right to a fair trial.
But the reality on the ground is that the top court's test still sets the bar pretty high to permit veiled testimony -- as the Ontario judge's decision perfectly illustrates.