Facing Justice

In a decision delivered this morning, R. v. N.S., 2012 SCC 72, the Supreme Court has ruled that the rights of a witness who, for sincere religious reasons, wishes to testify with her face covered and those of an accused against whom she testifies must be balanced on a case-by-case basis, eschewing a bright-line rule, though suggesting that in doubt the accused’s right to a fair trial prevails and militates in favour of an order that the witness remove the face covering. (If you want a less convoluted version of this summary, look at media titles: most, including the National Post, the Toronto Star and all the French-language media―Radio-Canada, Le Devoir, La Presse,  and Le Journal de Montréal―go for something like “Niqab allowed in some cases,” but the CBC and the Globe & Mail go for variations on “Judge can order niqab to be removed.” I wanted to avoid this glass half-empty or half-full problem.)

The appellant, N.S., is due to testify at the trial of two relatives whom she accuses of raping her. She wants to do it while wearing a niqab. The accused say she ought to be ordered to remove it while testifying, because not seeing her face prevents the trier of fact (judge or jury members) from making accurate credibility findings and their lawyers from cross-examining her effectively, thus jeopardizing the fairness of their trial. There are thus fundamental rights involved on both sides, freedom of religion and the right to a fair trial. What gives?

First of all, says Chief Justice McLachlin for the majority, it is important to check whether the witness’s insistence on covering her face is motivated by a sincere belief. The first instance judge in this case did not conduct that inquiry properly, so the rest of the reasons is hypothetical―it only presumes that this first requirement has been satisfied.

The second question to be answered is whether allowing the witness to wear a niqab actually compromises trial fairness in the circumstances. Where the evidence the witness will give is uncontested, that is not the case. When credibility is at issue, however, fairness will be compromised. The Chief Justice rejects the claim of the appellant and some interveners that there is nothing much to be learned from seeing a witness’s face. The common law has always proceeded on the contrary assumption, she points out, and while such assumptions are known to have sometimes resulted from unfounded misconceptions and even myths, they should not be discarded without any evidence that such is the case.

If it finds that both a sincere religious belief and trial fairness are implicated in the circumstances of a case, the court must attempt to reconcile them by accommodating both. However, it may well be that there is no accommodation which upholds both rights to be found.

If so, the rights at stake must be balanced to determine which is to prevail, again, in the circumstances of the case. “The question,” says the Chief Justice, “is whether the salutary effects of requiring the witness to remove the niqab, including the effects on trial fairness, outweigh the deleterious effects of doing so, including the effects on freedom of religion” (par. 34). The Chief Justice sets out a number of factors for courts to consider. On the side of freedom of religion, they include the degree of impairment which a particular witness’s freedom would suffer if she is ordered to remove the niqab, but also the risk that witnesses will simply refuse to come forward if they cannot comply with their religious obligations and thus crimes―very serious crimes like rape in this case―will go unreported or unpunished. On the side of trial fairness, there is the extent to which credibility is central to the case, the stage of the proceedings, and whether the trier of fact is a judge or a jury. The list, however, is rather tentative, and non-exhaustive.

Finally, the Chief Justice turns to the proposed alternatives to this uncertain balancing―clear rules either allowing or prohibiting the niqab at all times. Always allowing it, she says, undermines trial fairness and increases the risk of wrongful convictions. Always prohibiting it, on the other hand, in the name of making courts religiously neutral spaces, “is inconsistent with Canadian jurisprudence, courtroom practice, and our tradition of requiring state institutions and actors to accommodate sincerely held religious beliefs insofar as possible” (par. 60). It infringes religious freedom even when doing so does nothing for trial fairness. And, the Chief Justice points out, it is simply not true that we evacuate religion from the courtroom―witnesses have the option to swear on the Bible, the Koran, etc. The state must be neutral towards religion, but it should not hinder it gratuitously.

The two other opinions urge the adoption of the clear rules that the majority rejects.

While concurring in the disposition of the appeal, Justice Lebel, writing for himself and Justice Rothstein, argues that trial fairness and the openness of courts are too fundamental ever to be compromised. Evidence that might be unchallenged at one stage of the trial could be called in question at the next. Anyway, while special rules departing from ordinary procedures can be put in place in order to facilitate communication between the various actors of a trial, a niqab only impedes it, “on the basis of the assertion of a religious belief in circumstances in which the sincerity and strength of the belief are difficult to assess or even to question” (par. 77).

Justice Abella, dissenting, takes the contrary position. In her view, a witness should always be allowed to wear a niqab, except in cases where identity itself is at issue. Otherwise, while “seeing more of a witness’ facial expressions is better than seeing less” (par. 82), seeing less does not prevent the trier of fact from assessing credibility. Anyway, the law already makes any number of exceptions that allow people to testify in ways that prevent their demeanour from being visible to and assessed by the trier of fact. That a witness must testify with her face open is only a general expectation, not a general rule, while the risk of being required to breach one’s religious duty will deter women from acting as witnesses, and is thus a sign of exclusion of religious minorities.

The contrast of style between the majority, on the one hand, and the concurrence and the dissent is as strong as the substantive difference. The majority’s opinion is rather dry and legalistic. The concurrence and the dissent are thick with talk of values and quite impassioned.

For my part, I think that the majority has it right. There really are two very serious rights at issue here. Justice Lebel’s snide comment about the possible insincerity of niqab-wearers and Justice Abella’s claim that since we already compromise fairness some of the time there is nothing wrong with compromising it some more do not persuade me. Case-by-case balancing―although the Chief Justice’s comments suggest that in practice the balance will be tipped towards trial fairness and thus ordering the witness to remove the niqab― might be frustrating, but I don’t think that there is a better way to resolve the clash of rights.

See You in Court!

This is the second part of my comments on the BC Supreme Court’s judgment striking down hearing fees the province imposed on litigants who wanted to go to trial, which I summarized here. Yesterday, I wrote about he separation of powers line of argument in Justice McEwan’s reasons. I turn now to the suggestion, which also runs through his judgment, that there is something like an individual right to go to court.

The Charter, of course, contains no such right. Well, at least not generally. Subs. 24(1) does provide, however, that “[a]nyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.” Still, if that’s a right to go to court – that’s what it sounds like to me – it’s a narrow one. Most cases have nothing to do with the Charter. The dispute before Justice McEwan was about child custody, and before the question of the fees arose, the Charter was not at issue at all.

Justice McEwan makes two main arguments for why there is a right to go to court, and it is a general one. The first is that going to court is a form of democratic participation, protected by the democratic principle of the constitution. The second is that it is a feature of our constitutional order and a requirement of the Rule of Law. Continue reading “See You in Court!”

Rights and Disagreement

Charles Krauthammer has an interesting op-ed in the Washington Post discussing President Obama’s endorsement of same-sex marriage, and accusing him of taking an intellectually incoherent approach to this matter. Mr. Obama has said that marriage – including of the same-sex variety – is a right; he has also said that the issue of allowing same-sex marriage (or not) should be for each state to decide. Mr. Krauthammer charges that this is contradictory: rights are rights are rights, and if something is a right, then it’s a right everywhere, and not state by state. It is the same argument that Dahlia Lithwick and Sonja West made in an op-ed on Slate (which I criticized here on other grounds). Mr. Krauthammer’s colleague Ruth Marcus also raised this issue a few days ago. It seems like a compelling argument, but it is wrong.

It is fine to say, in the abstract, that if something is a right it is a right everywhere and is not negotiable. (Actually, that too is a very controversial position, but let’s assume it.) The problem, as Jeremy Waldron likes to remind us, is that we don’t have any agreed upon means of verifying, to the satisfaction of everyone, the claim that something is a right, the way we have agreed upon ways of verifying the veracity of a claim made by a scientific theory. Thus even assuming that there exists a truth of the matter regarding rights, we can never be sure that we are, at any given moment, in possession of the truth about a claim of right. We think, of course, that our opinions about rights are correct; but if we are honest with ourselves, we cannot trivialize the possibility that we are mistaken.

We must recognize, therefore, that disagreements about right are can be reasonable. And that means recognizing – a possibility for which Mr. Krauthammer does not allow –  that someone who does not share our views about a certain claim of rights is not, for that reason, a bigot. I suspect that, if we think of the international realm, we mostly share that view. We do not think that every country that does not share our views about rights is bigoted. We might think them wrong, but not immoral. And we do not think that we ought to impose our views on them. We recognize that these are matters over which good faith disagreement is possible, and it is not wrong for each polity to resolve this disagreement as it thinks best – because it just might that they, rather than us, will get at the right answer.

Mr. Obama’s position might simply the application of this line of thinking inside the United States. He thinks that same-sex marriage is a right. But he acknowledges the possibility of good-faith disagreement on the matter (after all he, supposedly, until recently had doubts ), and thinks that this disagreement is best resolved in each state separately. This is not contradictory or incoherent.

There might be one more problem with that position. Where rights are codified in an authoritative document, like the U.S. Constitution, it seems strange to accept that it might mean different things to different people. But we know it does; people disagree about what the Constitution means just like they disagree about the underlying issues of rights. Unless one accepts the Dworkinian “one right answer” view, it need not be particularly troubling that the same document is interpreted differently by different people.

For once, left, right, and centre are united at criticizing Mr. Obama. And the irony is that this criticism is quite unfair.

Rights and Votes

Is it ever ok to put people’s rights to a democratic vote? Dahlia Lithwick and Sonja West are adamant that it is not, as they make clear in an article in Slate on the subject of same-sex marriage. But their argument is wrong, and indeed dangerous.

Ms Lithwick and Ms West argue that “marriage equality … is a constitutional and not a democratic issue.” So is equality generally – as they put it, “[e]quality is not a popularity contest,” – and so are other “essential liberties.” They conclude their article with a reference to slavery – the biggest rhetorical sledgehammer except for Hitler – claiming that “[j]ust as [the U.S.] couldn’t go on with a mix of free states and slave states, we cannot continue with this jumble of equal marriage states and discriminatory states. Recognizing a federal constitutional right is the only, and the best, method to put this issue to rest.”

Ms Lithwick and Ms West might mean that when democratically enacted laws have the effect of defining the scope of citizens’ constitutionally protected rights and liberties, it is legitimate for courts, exercising the power of judicial review of legislation, to overrule these definitions and to impose their own. That would be an argument about what Jeremy Waldron, in his article on “The Core of the Case against Judicial Review” calls “process-related reasons” for choosing a procedure for settling disputes about rights. Prof. Waldron believes  that the democratic, legislative procedure is much the better one, because it respects the views of every citizen on these matters. Ms Lithwick and Ms West think otherwise because of their contemptuous view of democracy as a popularity contest.

But it is not what the argument they actually make. What Ms Lithwick and Ms West say is that issues are either democratic or constitutional – and this implies that rights and liberties are simply outside the purview of the democratic process. This suggests not just that courts are better than legislatures at dealing with disputes about rights, or that they should be called in as a last result to correct legislative failures or oversights, but that legislatures and voters have no business pronouncing on issues defined as constitutional at all.

Contrary to Ms Lithwick and Ms West’s assertion, this is a radical argument. It is also an absurd one. Legislatures and voters engage with arguments about rights all the time – and they don’t always do it badly. Legislatures made same-sex marriage legal in Canada and in some of the states where it is legal in the U.S., including New York. Legislatures decriminalized homosexuality in Canada, the U.K., and much of the U.S. (though courts did end up sweeping the remaining prohibitions there). They abolished the death penalty in Canada, all of Europe, and those U.S. states where it no longer exists. Yet if one accepts that voting is not a legitimate procedure for settling disputes about right, as Ms Lithwick and Ms West contend, then one is committed to saying that all these votes were illegitimate – legislatures had no business addressing these issues at all. And one cannot say that legislation that advances rights is legitimate whereas that which restricts them is not; process-based arguments against a decision-making procedure remain whether or not the outcome is good. If flipping a coin to decide whether same-sex marriage ought to be legal is a bad idea, it remains a bad idea even if the result is one we agree with. Winning a popularity contest has the same moral significance as losing one – that is, none.

And as for the slavery argument, it is deeply ironic and ought to be embarrassing to Ms Lithwick and Ms West. When it confronted the issue of slavery, the Supreme Court of the United States not only upheld this evil, but extended it, holding that a law – enacted by a legislature, the U.S. Congress – prohibiting slavery in the U.S. territories was unconstitutional. This decision, Dred Scott v. Sandford, ought to be a reminder to those who defend judicial review that courts are not immune from doing evil and letting wrong prevail over right.

Unlike prof. Waldron, I think that judicial review has a legitimate place in resolving questions about rights in democratic polities. But so do legislatures – and their engagement with these questions is something to be celebrated, not denigrated. I do hope that same-sex marriage becomes legal everywhere (unless, that is, governments at last get out of the marriage business altogether, which would be even better). And if courts need to step in to make this happen, so be it. But the more involved legislatures are in this progress, the better it will be.

Quasi-Constitutional Rights?

What are “quasi-constitutional rights”? Is this a meaningful, a useful concept? Justice Lebel’s comments in a decision released last week by the Supreme Court raise the question.

The decision, Éditions Écosociété Inc. v. Banro Corp., 2012 SCC 18 is one of three released last Wednesday, all dealing with questions of when Canadian courts can, and when they should, assume jurisdiction over a tort action with multi-jurisdictional elements. In this case, the action was in defamation. The appellants were the publishers of a book savaging Canadian mining companies for their activities (allegedly involving massive human rights violations) in Africa. The respondents were one of these companies. The book was published in Québec, but over 90 copies were sold in Ontario, some to public libraries, and the book was promoted there. The respondents are based in Ontario, and sued for defamation there. The publishers tried to have the proceedings stayed either for lack of jurisdiction or because the Ontario court was a forum non conveniens; they argued that the respondents were engaging in libel tourism, suing for defamation in jurisdiction more favourable to plaintiffs than that in which the suit should logically have been brought (in this case, Québec). Their motion was dismissed, and their appeals rejected both by the Ontario Court of Appeal and now by the Supreme Court.

In discussing the issue of the choice of law in defamation actions, Justice Lebel wrote (for the unanimous court)

that the harm occasioned by the publication of a defamatory statement is not the publication itself, but rather injury to the plaintiff’s reputation. While the constitutional right to the protection of freedom of expression must be upheld in the crafting of the law of defamation, this Court has recognized that one of the primary purposes of the law of defamation is to protect the reputation of the individual, which was elevated to quasi-constitutional status in Hill v. Church of Scientology of Toronto, [1995] 2 S.C.R. 1130. [par. 57]

As those of you who read my lament about the Charter’s unfortunate effects will recall, I am not a fan of Justice Cory’s reasoning in Hill, linking reputation to innate dignity and privacy, which I called “grasping at constitutional straws.” At least, Justice Cory did not actually speak of a “quasi-constitutional status” for the right to reputation. Justice Lebel now does. What does that mean? Continue reading “Quasi-Constitutional Rights?”