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By: Marco GasparStudent #: 824-030-282For: Albert FerrantiCourse code: PLBA 101Due: October 8, 2013

Assignment 1R. v. N.S. 2012 SCC 72

The R. v. N.S. case was first heard by the Supreme Court of Canada on December 8, 2011

and was decided on December 20, 2012. The case came as an appeal from the court of appeal of

Ontario and was heard by McLachlin C.J. and LeBel, Deschamps, Fish, Abella, Rothstein and

Cromwell JJ. The appeal was a result of the preliminary inquiry phase of a criminal case and left

some of the judges in the Supreme Court divided in their division although a majority decision

was reached.

The criminal case which led to the appeal revolved around the supposed rape of NS by

her uncle and cousin. During the preliminary inquiry the accused, wanting a fair trial as they are

entitled to by law, asked the judge to have NS remove her niqab stating that without doing so it

would being nearly impossible to conduct a proper cross-examination seeing as they cannot see

her face which in turn would make it harder for them to pled their case. When asked to do so NS,

being a devout Muslim, refused stating that by forcing her to remove her niqab they were

violating her right of religious freedom. The preliminary inquiry judge than proceeded to

determine which violation would cause greater harm, NS being forced to take off her niqad

despite religious beliefs that she must wear it or take away the accused's right to a fail trial by not

being able to see their accusers face. In the end the judge decided that the need for the accused to

see the face of their accusers face in order to cross-examine and have a fair trial was far more

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important than the NS' religious belief that she must wear her niqab which in turn lead to the

appeal.

The first Judges to speak and agree on their decision were McLachlin C.J. and

Deschamps, Fish and Cromwell JJ. who on their own made the majority vote. Their findings

were put together and brought forward by McLachin C.J. This group of judges brought forward

various alternatives as to how this situation may not be fully resolved and said the real decision

was still in the hands of the preliminary judge who had first said she must take off her naqib.

Although in a way these judges did make a decision, it is not really one that most would expectfrom a panel of judges seeing as in a way their decision was that they could not make a decision.

Although they are giving NS a second chance by giving the preliminary judge a chance to

change his previous decision after giving more information and various forms of opinions on the

matter, the decision as to whether or not NS should be allowed to wear her niqab should have

been made by them as that is what they were there for. Despite this they still managed to bring a

good overview of the situation and brought into light many of the pros and cons of the situation

such as ...if niqab -wearing women are required to remove the niqab while testifying against

their sincere religious belief they will be reluctant to report offences and pursue their

prosecution, or to otherwise participate in the justice system. (part 37)

The second group of judges, LeBel and Rothstein JJ., were both fully against the wearing

of the niqab saying how it has no place in the courtroom and gave various arguments as to why.

LeBel and Rothstein JJ. gave several compelling arguments as to why the niqab had no place in

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the court room with many being fully understandable. One of their most compelling and straight

forward arguments was the following;

In the courts themselves, as I mentioned above, the trial is a process of communication.

To facilitate this process, the justice system uses rules and methods that try to assist parties that struggle with handicaps to overcome them in order to gain access to justiceand take part effectively in a trial. Blind or deaf litigants, and parties with limitedmobility, take part in judicial proceedings. Communication may sometimes be moredifficult. But the efforts to overcome these obstacles and the rules crafted to address themtend to improve the quality of the communication process. Wearing a niqab, on the otherhand, does not facilitate acts of communication. Rather, it restricts them. It removes thewitness from the scope of certain elements of those acts on the basis of the assertion of areligious belief in circumstances in which the sincerity and strength of the belief aredifficult to assess or even to question. The niqab shields the witness from interacting fullywith the parties, their counsel, the judge and, where applicable, the jurors. (part 77).

With all the arguments they made and the clarity of each argument along with the logic behind

each one, it is difficult in a way to see how the judgment of LeBel and Rothstein JJ. was not the

winning one. The one criticism of their judgment was how despite all this, in the end they

decided to agree with the decision of MacLachin C.J. and others.

The final group was but Abella J. Abella J. is against all the other judges saying that NS

should in fact get to wear her niqab and gives various compelling arguments much like how

LeBel and Rothstein JJ. did. For the most part Abella's arguments revolve around the fact that

one does not need to see ones entire face in order to cross-examine them but that even just the

eyes would suffice. Her most compelling argument though may be found in part 92 in which she

talks about how in some cases in common law criminal cases if someone may not show their

face they may be allowed to testify without showing their face such as how a child is usually

screened when testifying or if someone cannot speak English they may have an interpreter and if

their needs are met than so should hers as well.

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In conclusion I do not agree with the courts final decision and instead agree more with

that of LeBel and Rothstein JJ. The main problem with the final judgement does not resolve

much and doesnt take much of a step forward into resolving the issue but more just g ives us an

overview of it as previously stated. With LeBel and Rothstein JJ.'s decision on the other-hand,

the naqib issue would most likely be resolved much quicker and faster and gives the men a

higher chance of a fair trailer whether or not that chance be much higher than it already is.