In a turn of events that sheds some light on the slow process of modern justice, Judge Weisman of the Ontario Court of Justice revisited the question of whether a criminal complainant, known only as N.S., would be allowed to wear a niqab while giving testimony during a preliminary inquiry. Judge Weisman’s initial ruling on the matter was given on October 16, 2008. This decision was reviewed three times, culminating in a ruling by the Supreme Court of Canada that laid down further guidance as to how the Charter issues in this case ought to be resolved. For a more in-depth history of the case, please refer to my colleague Chris Dormer’s blog article on the SCC’s ruling.
In an unreported decision revisiting his ruling from 5 years ago, Judge Weisman implemented the SCC’s requirements to guide his decision on whether a niqab could be worn by N.S.; nevertheless his conclusion was the same as 5 years ago. He determined that, while N.S.’s religious belief is sincerely held, the potential for a wrongful conviction was too great a risk, due to her central role in the Crown’s case. As a result, Judge Weisman ordered that N.S. could not testify unless she removed the niqab.
The first impression of this result is that the process of appealing Judge Weisman’s earlier decision was a waste of time and public money. Criticism of the SCC’s decision in this case included that it was too vague and would result in further appeals. However, it is clear that a greater level of certainty with respect to the legal test for the balancing of conflicting Charter rights has been achieved through this case. By continually expanding the jurisprudence on this matter, hopefully the cost of future appeals will be forestalled.
Finally, the applicability of this test in the context of non-criminal litigation is still untested. The role of cross examination in the civil context is just as pivotal as in the criminal context, although the stakes are generally considered less critical. We will have to wait until a case emerges that pits the Charter rights of a veiled witness against another party who cannot invoke the danger of a wrongful conviction before we see how far the logic from R v N.S. can be taken.