The Supreme Court of Canada will attempt to balance Islamic beliefs against the bedrock elements of a fair trial on Thursday in major clash of constitutional rights.
At the centre of the case is a sexual assault complainant known as N.S., who does not want to testify against two men accused of raping her unless her face is obscured by a religious veil, or niqab.
The defendants assert that the Charter of Rights and Freedoms guarantees them the right to confront their accuser and observe her facial nuances as she testifies.
However, lawyers for N.S. say facial expressions are frequently misleading and that Islamic rape victims will be reluctant to go to police if they may later be ritually “stripped” in a courtroom….
For those interested in how the U.S. Constitution treats this: Maryland v. Craig (1990) upheld by a 5-4 vote a procedure in which children who were allegedly sex crime victims could testify through one-way closed circuit video, in which they couldn’t see the defendant; but the Court stressed that (emphasis added),
We find it significant, however, that Maryland’s procedure preserves all of the other elements of the confrontation right: The child witness must be competent to testify and must testify under oath; the defendant retains full opportunity for contemporaneous cross-examination; and the judge, jury, and defendant are able to view (albeit by video monitor) the demeanor (and body) of the witness as he or she testifies. Although we are mindful of the many subtle effects face-to-face confrontation may have on an adversary criminal proceeding, the presence of these other elements of confrontation — oath, cross-examination, and observation of the witness’ demeanor — adequately ensures that the testimony is both reliable and subject to rigorous adversarial testing in a manner functionally equivalent to that accorded live, in-person testimony.
Craig drew a sharp dissent from Justice Scalia, joined by Justices Brennan, Marshall, and Stevens; the dissent argued that the Confrontation Clause required face-to-face confrontation.
I can’t speak to what is called for by the original meaning of the Confrontation Clause, what is the proper interpretation of the Canadian Charter of Rights and Freedoms, or more broadly what is the right approach as a matter of policy in such cases (especially given recent psychological arguments about how good or bad jurors are at weighing witness demeanor in evaluating the witness’s truthfulness). But I thought the issue was likely to be interesting to our readers, so I thought I’d blog about it. Thanks to Ken Braithwaite for the pointer.