I wrote last year about the Supreme Court’s decision on whether a witness in a criminal proceeding could testify while wearing a niqab, a full-face veil, R. v. N.S., 2012 SCC 72, [2012] 3 SCR 726. Of course, the questions about balancing trial fairness and freedom of religion which the Court had to confront in that case do not only arise in Canada. An English criminal trial court recently had to confront them too, delivering its decision on the matter in R. v D(R) [2013] EW Misc 13 (CC) yesterday.
One difference between the English and the Canadian cases is that in N.S., it was a witness (namely, the complainant) who asked to testify with her face covered. In D(R) it was the accused. Judge Murphy, who decided D, thought it was an important distinction:
there are different considerations in these instances. For example, the public has a strong interest in encouraging women who may be the victims of crime from coming forward, without the fear that the court process may compromise their religious beliefs and practices. On the other hand, the rights of the defendant in any resulting criminal proceedings must also be protected. So there is a potential for a challenging conflict of competing public interests. A defendant may, of course, be a witness; but this does not define her role in the proceedings. As a defendant, she plays the central role throughout proceedings, and unlike a witness, she is brought before the court under compulsion and does not appear as a matter of choice (par. 8).
Another distinction which Judge Murphy made in discussing N.S. concerns the significance of the right to religious freedom in Canadian law, by virtue of the Canadian Charter of Rights and Freedoms, which he took to be far greater than that of the “qualified” right to freedom of religion under the European Convention on Human Rights. (I think that Judge Murphy is wrong about this. He takes the protection of freedom in s. 2(a) of the Charter to be absolute, because that provision lacks a qualifying clause like the corresponding one of European Convention ― but of course the Charter does have a qualifying clause, albeit a general one, s. 1.)
One element of N.S. that judge Murphy rejects is the preliminary step of inquiring into the sincerity of the accused’s belief that she must wear the niqab. Such an inquiry would be too difficult to undertake, and different results in different cases would lead to “a kind of judicial anarchy” (par. 15). Better to have a general rule that will apply unless the prosecution decides to bring some evidence suggesting that the accused is, in fact, insincere.
These distinctions notwithstanding, Judge Murphy’s understanding of the basic problem facing the court is not very different from that of the majority in N.S. There is a clash of long-standing, fundamental principles: freedom of religion on the one hand, trial fairness on the other. Religious freedom means being able to wear the clothes one’s religion prescribes. Trial fairness means requires the judge, the jury, and counsel to be able to observe the witness who gives evidence, and the accused even when she is not giving evidence.
Judge Murphy’s views on the trial process, however, are similar to (and borrow from) those of Justice Lebel’s concurrence in N.S. A trial is a “communicative” process, and seeing the accused throughout is very important. It would be unfair to all the other participants in the proceedings if they could not observe the accused’s face. Judge Murphy goes further still. He finds that because “[t]he Court may not discriminate between different religious traditions, or between those with a religious belief and those with none,” if a woman wearing the niqab “is entitled to keep her face covered, it becomes impossible for the Court to refuse the same privilege to others, whether or not they hold the same or another religious belief, or none at all” (par. 60). Furthermore, if judges had to accommodate niqab-wearers on the mere assertion of their religious beliefs, they would in effect be deprived of their entitlement to control their courts’ procedures.
Balancing these considerations against the freedom of religion, Judge Murphy concludes that the accused may not wear a niqab while giving evidence, but may do so at other moments of the trial, except when it is necessary to identify her. To be sure, this may mean that some accused will choose not to give evidence, or will experience discomfort while doing so. Giving evidence, if one wishes to, is a right of the accused. However, this right “involves a corresponding duty to submit that evidence to the scrutiny of the jury” (par. 70). While in other cases it is often possible to accommodate religious beliefs, it would be too much of a strain, and indeed an impairment of rights, to arrange for trials of niqab-wearers to involve only women (as judges, jurors, and counsel).
As I said in my comments on N.S., I am more comfortable with the case-by-case approach taken by the majority in that case than with a bright-line rule. However, it seems clear enough to me that the majority’s approach will, in reality, far more often than not lead to witnesses being ordered to remove the niqab while giving evidence. The practical difference between the N.S. approach and the one taken in D is thus likely to be very minor.
What I don’t like in Judge Murphy’s reasons are his comments on discrimination and the need to have the same rule apply to all. Of course the law should not discriminate between different religions. But to accommodate a peculiar duty that the members of one faith have is not to make them a special favour; an accommodation made on account of such a duty need not be extended to those who have no such duty. The fact that a Sikh boy has the right to wear a kirpan to school does not mean that others ought to be able to bring knives, which they are not compelled to do by their conscience. The fact that a woman who feels in conscience bound to wear the niqab may (sometimes) do so in court need not mean allowing others to wear a mask. Of course, these differences mean that an inquiry into the sincerity of a belief is sometimes necessary (though often sincerity will be admitted by all parties), which is another point where Judge Murphy, in my view, goes wrong.
In any case, despite these problems, his opinion is thoughtful, and a useful read for those interested in the topic of religious accommodation.
Double Aspect 