R. v. N.S.: Determining The Balance Between Religious Freedom And Trial Fairness

In R. v. N.S., 2012 SCC 72, the Supreme Court of Canada outlined the framework to be used when determining whether a witness can be permitted to testify in a criminal proceeding while wearing a niqab. A niqab is a cloth which covers the face as a part of sartorial hijab. It is worn by some Muslim women in public areas where men might see them.

N.S. was called by the Crown as a witness at the preliminary inquiry in a sexual assault  case. N.S. is a Muslim who, for religious reasons, wished to testify while wearing her niqab. The preliminary inquiry judge concluded that N.S.'s religious belief was "not that strong" and ordered her to remove her niqab. The Ontario Court of Appeal held that if the witness's freedom of religion and the accused's fair trial interests were both engaged and could not be reconciled, the witness may be ordered to remove the niqab depending on the context. The Court of Appeal returned the matter to the preliminary inquiry judge, and N.S.