Right to a Fair Trial vs Religious Freedom

By Bianca Thomas, PLE Team Volunteer and UofT law student

On December 8th, the Supreme Court of Canada heard an appeal which seeks to balance the defendant’s right to have a fair trial and a victim’s right to exercise her religious beliefs by wearing a niqab during testimony at trial. Both the right to a fair trial and the right to exercise one’s religion are protected by the Canadian Charter of Rights and Freedoms. As a result, the court seems faced with the choice of choosing one right over the other.  The case is R v. N.S.

Lawyers for the defendantargue that it is necessary to see a witness’s face in order to assess their behaviour and how they react to questions. By allowing a witness to cover their face while testifying, lawyers are perhaps prevented from effectively questioning the witness, as they may are unable to pick up on non-verbal signals.   

However, lawyers for the victim, N.S., argue that facial expressions may often be misleading, especially where the person is of a different culture. Some witnesses, for example, may avoid eye contact because of a respect for authority, but in Canada, this would be considered suspicious. Also, by preventing a victim from wearing a niqab during testimony will potentially discourage Muslim rape victims from coming forward in the future. Not only that, but if a victim’s religious belief is sincere, and the witness believes that wearing the niqab is necessary in order to promote her faith, then it should be protected by the Charter.

The Supreme Court of Canadahas not yet released its decision.

The court must engage in a careful balancing process when determining which of these rights should prevail. This could be one of the most difficult cases that the court has seen in years. What are your thoughts on this issue? Do you think that it is necessary for defence counsel to be able to see a witness’s face, or should a witness’s right to freedom of religion prevail?