The sexual-assault case that sparked a landmark Supreme Court of Canada decision after the alleged victim sought to wear a niqab while testifying has come to an end, after seven years.
The Crown withdrew sexual assault charges against two men on Thursday in a downtown courtroom, stating that “there is no reasonable prospect of conviction.”
The woman’s battle to testify at a preliminary hearing while wearing a veil covering her entire face except for her eyes pitted the right of religious freedom against the accused’s right to a fair trial.
In October 2008, Ontario Court Justice Norris Weisman ruled that the woman, who can only be identified as N.S. due to a publication ban on her identity, must remove her niqab before testifying at the preliminary hearing.
After numerous appeals, the Supreme Court of Canada released a 4-2-1 split decision in 2012 that set out a test for the courts to use on a case-by-case basis, considering the sincerity of the religious belief, trial fairness and alternative accommodations available.
The top court sent the case back to Weisman, who once again ordered the woman to testify without the niqab.
It “masks her demeanour and blocks both effective cross-examination by counsel for the accused and assessment of her credibility by the trier of fact,” Weisman ruled in April 2013.
The woman chose to testify without her niqab in January in the preliminary hearing, after being allowed to avoid seeing or making eye contact with anyone except the accused, lawyers, judge and court staff.
A separate viewing room was organized for the public, with a camera feed that would only show the back of the woman’s head.
The case was committed to trial by Ontario Court Justice Charles Vaillancourt, who took over when Weisman retired shortly after making the 2013 ruling.
The woman alleged that the two men, family members who cannot be named under the publication ban on her identity, sexually abused her between 1983 and 1987, when she was a child.
On Thursday morning, Crown attorney Michael Cantlon announced that after reviewing the evidence and “the receipt of additional material,” it was determined the charges should be withdrawn.
“In this case there have been a number of recent developments, including the receipt of additional material,” a spokesperson for the Ministry of the Attorney General told the Star. “Pursuant to the Crown’s ongoing obligation to assess the case, it was concluded there was no reasonable prospect for conviction.”
“Not only (the complainant’s) evidence in isolation but the evidence of the other witnesses who testified at that preliminary hearing really supported that the allegations were fabricated,” the lawyer representing one of the men, Enzo Battigaglia, said in an interview.
“My client feels very vindicated and satisfied he can move on with the rest of his life.”
Defence lawyer Douglas Usher, who represented the other accused man, said the police did not lay charges when the alleged sexual assaults were first reported in 1992.
However, police chose to lay charges when the allegations were reported again in 2007, though no new evidence was brought forward, Usher said.
“They came, after all this time, to the same decision that was made in 1992,” said Usher. “The accused has borne the burden of this all this time.”
Meanwhile the rules around wearing a niqab while testifying “are as nebulous now as they were before,” Usher said.
The woman, a mother in her mid-30s, is “extremely disappointed with today’s announcement,” her lawyer, David Butt, told the Star on Thursday. “She fully understands that she has no right to any particular verdict from the courts, but she is extremely disillusioned that her allegations will not even be considered on their merits — especially after such a tremendously long and difficult journey through the justice system, which took an immense personal toll.”
Butt told the Star earlier this year that had the case gone to trial, an application to wear the niqab while testifying might have been made again in Superior Court.
With the question of veiled testimony to be handled on a case-by-case basis, it will be interesting to see how other instances are handled in the future, said Battigaglia.
“This was the first test case in Canada. In our case, credibility was so central … it’s not like this was a peripheral witness,” he said.
“It’s going to be interesting to see where there are sort of grey areas.”
The case has left a “difficult legacy,” said Kim Stanton, the legal director at the Women’s Legal and Education Action Fund (LEAF).
On the positive side, the case has helped pave the way for niqab-wearing women to participate in the justice system, she said. But the test set out by the top court is not an easy one to meet, particularly so in the case of a sexual-assault complainant.
LEAF, an intervenor in the Supreme Court of Canada hearing, argued it is not helpful to place more barriers in the way of women reporting sexual assaults since they are already underreported, Stanton said.
“But I don’t think this is the last time it’s going to come up,” she said.
“We do place a lot of importance in the Canadian justice system in trying to accommodate difference in a number of ways, for example testifying behind a screen,” she said. “Allowing a woman to testify behind a niqab is another accommodation that is necessary to ensure that sexual assault complaints are prosecuted.”
She noted that there were two dissenting opinions issued in the Supreme Court of Canada decision, one that would not allow the niqab to be worn on the stand in any case and one that would have allowed N.S. to testify in the niqab.
"(That) tends to suggest society hasn’t quite figured this out yet.”