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Published online by Cambridge University Press: 15 August 2013
In R v NS the Supreme Court of Canada (SCC) was asked to consider a straightforward question: must a Muslim woman remove a niqab (face covering leaving only the eyes showing) when giving evidence in a sexual assault case in which she is the complainant. Two justices said ‘yes’; one said ‘almost always, no’; and the majority said ‘maybe yes, maybe no – it depends’. The matter was then returned to the preliminary inquiry judge to make the actual decision, which could still be subject again to appeal to the SCC. The court divided on the three available answers to the question: yes, no and maybe. The division, however, leaned in favour of requiring removal of the niqab because the reasons for judgment favouring ‘maybe’ were concurred in in the result by those favouring removal. In the end, the court did not give a clear answer to the question, but rather provided a four-part test for trial judges who must continue to make the decision, subject to appeal. The practical utility of this response may be doubted.
1 2012 SCC 72.
2 Four justices constituted the majority on the seven-member bench. Of the two remaining justices who did not sit, one had heard the case in the Ontario Court of Appeal and the other, also recently appointed from the Ontario Court of Appeal, stood down to ensure a seven-member bench.
3 2010 ONCA 670 at para 2.
4 R v NS at para 88 per Abella J.
5 Ibid at para 2.
6 The majority adopted the approach to balancing rights set out in two earlier cases concerned with publication bans: Dagenais v CBC [1994] 3 SCR 835 and R v Mentuck [2001] 3 SCR 442.
7 R v NS at para 9.
8 Ibid at para 13.
9 Ibid at para 14.
10 Ibid at paras 16–20.
11 RSC 1985, c C-46.
12 R v NS at paras 21–27.
13 Ibid at paras 28–29.
14 Ibid at para 33.
15 [1986] 1 SCR 103.
16 R v NS at paras 36–37.
17 Ibid at paras 38–43.
18 Ibid at para 45.
19 R v NS at paras 52–58.
20 Ibid at para 60.
21 Ibid at paras 64–66.
22 Ibid at para 68.
23 Ibid at para 69.
24 Ibid at paras 73–77.
25 Ibid at para 78.
26 Ibid at para 84.
27 Ibid at para 85.
28 Ibid at para 88.
29 Ibid at para 89.
30 Ibid at paras 82, 91.
31 Ibid at para 92.
32 Ibid at paras 102–105.
33 Ibid at para 99.
34 Ibid at para 106.
35 Ibid at para 107.
36 Ibid at para 109.
37 Ibid at paras 94–95, 109.
38 (2005) 241 DLR (4th) 1 (SCC). For a comment see Ogilvie, M, ‘And then there was one: freedom of religion in Canada – the incredible shrinking concept’, (2008) 10 Eccl LJ 197–204Google Scholar.
39 2009 SCC 37. For a comment see Ogilvie, M, ‘The failure of proportionality tests to protect Christian minorities in Western democracies: Alberta v Hutterian Brethren of Wilson Colony’, (2010) 12 Eccl LJ 208–214CrossRefGoogle Scholar.
40 2006 SCC 6.
41 2012 SCC 7. For a comment see Ogilvie, M, ‘What's sincerity got to do with it? Freedom of religion in Canada’, (2012) 14 Eccl LJ 417–425CrossRefGoogle Scholar.
42 Several organisations widely regarded as radically feminist were interveners in the case on behalf of NS.
