On September 11, 2008 N.S., a sexual assault complainant sat in a court room in Ontario and struggled to explain to a judge why she shouldn’t have to remove her niqab, face veil, while she testified. “My face” she insisted, “is not going to show any signs of – it is not going to help, it really won't.” N.S., though unbeknownst to her at the time, had just pushed up against one of the most strongly held beliefs of our legal system – that faces ought to be visible in court and that credibility could be determined by observing a witness’s demeanour.
On April 24, 2013, after six years of fighting this issue from the Superior Court of Justice, to the Ontario Court of Appeal and eventually to the Supreme Court of Canada in December 2011, Ontario Court Judge Norris Weisman ordered that N.S. remove her niqab before being able to testify in court. This was the same judge who originally ordered that she remove her niqab in 2008 because he did not believe her religious belief was sincere.
Weisman held that while he did now believe she had a strong and sincere religious reason for wearing the niqab, permitting her to nonetheless wear it would “create a serious risk to trial fairness”
and would “impair defence counsel’s ability to assess her demeanour, as well as the [judge's] ability to assess her credibility” (see here) even going as far as to say that it would create a potential for wrongful convictions and a loss of public confidence in the justice system (here).
But did he really have a choice? In essence, he was able to make the same decision he had made in 2008 at the original preliminary inquiry, this time with the Supreme Court decision to back it up. However, what the Supreme Court did was pit a rather benign and harmless religious freedom against the potential for wrongful convictions and maintaining public confidence in the administration of justice. This has the effect of essentially preventing lower court judges from exercising any independent analysis of the issue if the accused brings any argument whatsoever that their fair trial rights will be affected. In other words, unless an accused consents to the witness wearing her niqab, there will be little room for a judge to say she can wear it.
But I believe that Justice Weisman, despite the Supreme Court decision, could have done more. Where he failed and what has been a constant failing of our justice system throughout the six years of legal challenges by N.S., is to deconstruct the assumption that seeing a witness’s face and body language is necessary to assess their credibility and to use the widely available scientific evidence to easily debase this assumption.
Through what has been reported about the most recent N.S. decision it is evident that the judge, like the Supreme Court, refused to consider a substantial body of scientific research which demonstrates that while players in the legal system are confident in their ability to assess credibility based on demeanour cues, people are generally poor at detecting deception. There is also considerable research which shows that the cues which are most widely believed to be correlated with deception such as gaze aversion, smiling and fidgeting are in fact not associated at all. These findings are strong and have been replicated and meta-analyzed with consistent results for the past two decades (see a synthesis of the psychological research in this paper).
Instituting culturally biased polices within our legal system to judge people based on their appearance, particularly in the sexual assault context, means a regression to the very myths and prejudices which the law has fought so hard against for years (i.e. that if women don’t raise a hue and cry on the stand or do not dress conservatively that they are somehow less worthy of belief). It is important to understand that for some niqab wearing women in particular, ordering them to remove the niqab would be akin to ordering them to undress in court. For sexual assault complainants generally, the implications of this decision are that it will in fact hinder rather than help the truth seeking function of the trial by distracting triers of fact from focusing on other more reliable forms of credibility assessment such as the presence of independent evidence confirming or contradicting the witness, inconsistent and consistent statements, interest in the outcome and motives to lie as well as expert evidence on human behavior and memory.
In the same way, the precedent set by this case may hinder the truth seeking function of a trial by distracting complainants from the true purpose of the trial by forcing them to focus more emotional and financial resources on achieving the look of a “credible complainant” and not their testimony itself by focusing on what they will wear to court and policing what emotions will be “ok” on the stand, i.e. to cry and show emotions of fear and pain but not emotions of anger or frustration. This leads to a potential for unreliable testimony or no testimony at all when complainants are forced to choose between exercising their constitutional right to testify or being forced to give up a religious freedom, not to mention being ordered to undress in court. There is also the risk that because of this decision, Muslim women and others from marginalized groups will feel further discouraged from reporting sexual assaults, reducing already low reporting rates and steering them away from obtaining any kind of justice.
It is not just complainants who risk being negatively affected by this decision though. Indeed, there are also grave implications for people accused of crimes which should cause us all to be concerned. In this way, while the Supreme Court and Judge Weisman argued that there would be a risk of wrongful convictions if N.S. were allowed to wear her niqab, in fact no empirical or legal links have been made between wrongful convictions and a lack of demeanour evidence; however links have been made in the reverse. Reliance on the demeanour of witnesses has in many cases been implicated in wrongful prosecutions and convictions in Canada for instance in the wrongful conviction of Guy Paul Morin and the wrongful prosecutions of Susan Nelles and Xiu Zheng to name a few.
In the end, the argument that permitting the niqab in the court room would result in unfairness to the accused or hinder the truth seeking function of a trial needs to supported by more fact rather than rhetoric because the risk of the opposite being true is far more certain. The April 24th decision is a strong indication that more work needs to be done to educate judges and lawyers on the dangers of relying on such assumptions and placing the emphasis on the more accurate and reliable tools for credibility assessments (I applaud the work already being done in this regard by organizations such as the Ottawa based National Judicial Institute).
Finally, to all the news agencies, claiming that N.S. has “lost her fight” two points:
N.S. will be appealing this decision and so the fight continues.
This is not just “her fight,” this is the fight of reasonable, concerned people everywhere, people who believe in access to justice, science, equality, and the progress of the law.
Amna Qureshi is a third year law student at the University of Ottawa, English Common Law.