Testifying Behind The Veil: The Human Factor

Yesterday I discussed the background to the N. S. case, which has recently been argued, on appeal, before the Supreme Court of Canada. The case is significant for two reasons: it raises the issue of conflicting Charter rights and how this conflict should be approached by the courts and it raises the issue of whether or not a witness in a criminal case is permitted to wear a face covering veil during testimony.

The second issue has broader implications in the public arena as it highlights the clash between traditional religious practices and the modern world, where identity and privacy seem to shrink in the public spotlight. In the age of mass communication, with over 500 million users of Facebook, the idea of masking one's identity, for whatever reason, appears to be not only redundant but also unacceptable.

Legally, such a stance seems to be against precedent as seen in the 2009 Supreme Court of Canada Alberta v. Hutterian Brethran of Wilson Colony case, wherein the Court upheld provincial legislation which required photographic driver licence identification even though such requirement conflicted with the religious precepts of the Brethren. Such picture identification was rationally connected to the real and pressing concerns of safety and security.

Politically too, keeping one's identity private is not acceptable as in the recent decision by the Federal Government to require the removal of face covering veils when fulfilling citizenship requirements, particularly when taking the citizenship oath. This decision does not appear to be decided on the basis of security and safety but, according to Immigration Minister Jason Kenney, on the basis that the "public declaration that you are joining the Canadian family ...must be taken freely and openly." 

In that backdrop, we return to the N. S. case and the decision of the Ontario Court of Appeal written by the Honourable Mr. Justice Doherty for the panel. In the decision, Justice Doherty perfectly sets out the issues at stake "in human terms": 

N.S. is facing a most difficult and intimidating task.  She must describe intimate, humiliating and painful details of her childhood.  She must do so, at least twice, in a public forum in which her credibility and reliability will be vigorously challenged and in which the person she says abused her is cloaked in the presumption of innocence.  The pressures and pain that complainants in a sexual assault case must feel when testifying will no doubt be compounded in these circumstances where N.S. is testifying against family members.  It should not surprise anyone that N.S., when faced with this daunting task, seeks the strength and solace of her religious beliefs and practices. 

M---d.S. is facing serious criminal charges.  If convicted, he may well go to jail for a considerable period of time.  He will also wear the stigma of the child molester for the rest of his life.  In all likelihood, the mere fact that charges have been laid has led many within his family and community who are aware of those charges to look at M---d.S. in a very different way. 

M---d.S. is presumed innocent.  His fate will depend on whether N.S. is believed.  In a very real sense, the rest of M---d.S.’s life depends on whether his counsel can show that N.S. is not a credible or reliable witness.  No one can begrudge M---d.S.’s insistence that his lawyer have available all of the means that could reasonably assist in getting at the truth of the allegations made against him.    

What is really being impacted by this case, which has now taken on national proportions, legally, politically, and socially, is the lives of two people. Certainly, the public's interest in the outcome of the case is valid. This is even more so considering the number and type of intervener's in the SCC case: the Ontario Human Rights Commission, the Criminal Lawyer's Association, the Women's Legal Education and Action Fund, and the Muslim Canadian Congress, to name but a few. However, we must not forget the "human terms" or human factor, which requires us to contemplate the life-changing possibilities of this ruling.