Can’t Compel

In “Law Like Love,” W.H. Auden wrote that “we can’t compel” love. He was right of course, and not only in the sense he meant. So holds―without reference to Auden―a decision of the Ontario Superior Court of Justice, R. v. Hall, 2013 ONSC 834. At issue the constitutionality of the exclusion of common law spouses from the rule that one spouse cannot testify against the other (except in prosecutions for a number of offences where the other spouse is the victim), a common law rule codified (and modified) by s. 4 of the Canada Evidence Act.

The decision is actually the second on Mr. Hall’s application to prevent his spouse (or perhaps former spouse, judging by the description in R. v. Hall, 2013 ONSC 429, par. 4) from testifying at his trial. Although the first decision is not available, it seems that Justice Lofchik initially rejected the application, but re-opened the matter after the Supreme Court delivered its decision on the constitutionality of the treatment of common law spouses in Québec’s family law, Quebec (Attorney General) v. A, 2013 SCC 5 (about which I blogged here). In that case, a 5-4 majority of the Supreme Court held that the Québec legislature’s failure to grant separating common law spouses the same entitlements as divorcing couples constituted discrimination contrary to the equality guarantee of s. 15 of the Charter. (One of the five, Chief Justice McLachlin, went on to find that this discrimination was nevertheless justified under s. 1 of the Charter.)

Following that holding, Justice Lofchik finds that the exclusion of common law spouses from the benefit of s. 4 of the Canada Evidence Act is also a breach of s. 15 of the Charter, as it denies the accused a benefit on the basis of a prohibited ground of discrimination (namely his status as a cohabiting but unmarried spouse):

 as a result of the lack of a formal martial bond, the accused is not afforded the protection of the act, vis-à-vis the competence of his spouse/partner to testify before the court.  This is differential treatment of the accused as a person living in common-law relationship as compared to those who are married.  While we recognize the nobility of a public commitment of two people to each to the exclusion of all others, we cannot ignore that certain couples chose for a variety reasons to make this commitment through their actions rather than by scripted words.  Common-law couples must also be accorded respect, dignity and the benefit of the law. (Par. 17)

Justice Lofchik further holds that the discrimination cannot be justified under s. 1 of the Charter. The objective of the impugned rule “is to promote conjugal confidences, protect marital harmony, and prevent the indignity of conscripting an accused’s spouse to participate in the accused’s own prosecution” (par. 22, summarizing  R. v. Hawkins, [1996] 3 S.C.R. 1043, par. 38). That is well and good, but, Justice Lofchik observes, “[t]here is no evidentiary or logical reason to believe the proponents of this rule and the statutory scheme which followed had any intention of considering the autonomy and freedom of choice of unmarried persons and excluding them from” its scope (par. 22). Indeed, there is no rational connection between the exclusion and the provision’s objective. Excluding common law spouses does nothing to protect married ones.

The final question is that of the remedy. Mr. Hall wanted the protection for common law spouses to be “read in” s. 4 of the Canada Evidence Act. The Crown argued that this would be too radical a change in the law and hence not an appropriate judicial intervention. Justice Lofchik sides with Mr. Hall: “[t]o include common-law spouses in the evidentiary protection provided by this area of the law does no more than to keep the law in step with the changed and changing social and moral fabric of Canada” (par. 28).

Substantively, I think this is the right decision. There seems to be no particularly good reason for making married but not common law spouses non-competent and non-compellable witnesses for the prosecution. Nor does the Crown seem to have adduced any such reason.

But I wonder whether Justice Lofchik is right about the remedy. The rationale for the spousal incompetence rule has been challenged (as the Supreme Court explains in Hawkins), and alternative versions of the rule have been proposed (for example, making spouses competent but not compellable witnesses). It might have been a good idea to suspend the declaration of invalidity and to leave it for Parliament to choose whether simply to extend the rule to common law spouses or to modify it for all.

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.