Masking as Religious Obligation
vs. Masking for Public Safety
This article is part of our “Clothed in Religion: Law and Religious Attire/Garb” series.
If you’d like to check out other articles in this series, click here.
Religious attire is typically seen as a form of religious expression, which is protected under the Canadian Charter of Rights and Freedoms. By far the most controversial religious dress in Canadian society has been the niqab, and both the federal government and various provincial governments have attempted to ban it in certain circumstances. Courts have recognized that wearing a niqab is protected religious conduct, and bans have generally been unsuccessful as a result. (Quebec’s current ban on religious dress by public employees and those receiving public services invoked section 33 of the Canadian Charter, which allows the province to impose the law notwithstanding its violation of religious freedom; the law is currently being challenged under various other provisions of the Charter). One exception to the allowance, though, has been in judicial proceedings, specifically concerning witness testimony. In 2012, the Supreme Court of Canada dealt with the case of R. v. N.S., where a witness, anonymized as N.S., had accused her uncle and cousin of sexually abusing her when she was a child, but refused to remove her niqab in court to testify in front of men who were not close family.
Four justices in the majority, led by Chief Justice Beverly McLachlin, found that a witness’s ability to wear a niqab is dependent on the facts of the case and the nature of the evidence being submitted by the witness; the more important the witness’s credibility and evidence is, the more likely they will be ordered to remove their niqab for their testimony. Justices Lebel and Rothstein concurred in the judgment but argued that a black letter rule was required and that a witness should never be allowed to wear a niqab while testifying. Meanwhile, Justice Abella dissented, saying that, unless identification of a witness is at issue, the witness should be allowed to wear a niqab while testifying.
This case has gained a new measure of significance in recent years, as covering one’s face with a medical mask has become a more accepted and common part of life during the COVID pandemic. Consequently, courts have had to consider the question of whether witnesses can testify while masked for medical purposes, and whether this can affect trial fairness or make testimony or cross-examination more difficult. Courts’ decisions concerning masking for COVID, however, have often come down to whether they see masking as an individual choice or right, or as a duty towards the public. The decisions have been predicated on very similar foundations as the N.S. case, in which the justices buttressed an individual’s right to religious freedom and to a fair trial with public claims and rights.
In N.S., each opinion in the court attempts to balance the accused’s right to a fair trial with the witness’s freedom of religion. However, because the Court discusses each of these in terms of the rights of the accused and the witness as individuals, each opinion essentially depends on which additional communal or public rights the author of the opinion perceives to be at issue.
To wit, both the majority and the concurrence treat N.S.’s religious freedom as a purely individual issue. The main distinction between them concerns the extent to which they see the accused’s right to a fair trial as also invoking public rights. The majority opinion is less expansive and focuses mostly on the state’s interest in avoiding wrongful convictions. As a result, the majority reaches a conclusion that allows for the wearing of a niqab in some circumstances but requires the niqab to be removed for testimony that is more contentious and goes to disputed facts of the case. Practically speaking, this would seem to prevent any woman who wears a niqab from testifying in a case concerning historical sexual assault allegations; by definition, the facts are at issue and credibility is critical. However, the majority decision at least attempted to accommodate the niqab-wearer in certain circumstances, and required judges to consider the nature of the testimony and the importance of demeanor evidence.
The concurrence, however, expands the accused’s rights into a more general principle regarding the openness of the court system as well as the public’s ability to see justice done. As a result, these justices state that “[a] clear rule that niqabs may not be worn would be consistent with the principle of openness of the trial process and would safeguard the integrity of that process as one of communication. It would also be consistent with the tradition that justice is public and open to all in our democratic society.”
In her dissent, Justice Abella takes the opposite tact and expands the religious freedom issue at hand into a larger communal and societal issue. Her dissent frames the decision as one that will have a negative effect on niqab-wearing women’s engagement with the justice system. Justice Abella frames N.S.’s claim as being one with broader sociopolitical consequences. The court’s decision could potentially limit the rights of an accused who wears a niqab, and make niqab wearers more hesitant to come forward with a criminal complaint. She identifies the wearing of a niqab not as a choice but as an obligation for N.S., and concludes that the majority decision presents a false choice for the witness. Justice Abella is most concerned about the effect on the public perception of justice if religious minorities are forced to violate religious precepts in order to engage with the justice system. In her words, “this is like hanging a sign over the courtroom door saying, ‘Religious minorities not welcome’.” By contrast, she concludes that the niqab’s impact on trial fairness is minimal, and that the courts have found ways to accommodate witnesses in circumstances that only allow for partial observation of witness demeanor, such as through the use of interpreters or allowing testimony by telephone.
As noted, the question of masking during testimony has now arisen, and courts have reached varied determinations as to whether masks are required or even allowed. As in N.S., the question of whether the court views masking as an individual choice or a public duty has proven to be dispositive. Two cases show the different ways in which courts of different provinces have approached this issue. In R. v. Bdeir, the Ontario Court of Justice denied a defendant’s motion to require witnesses to testify without a mask. Like N.S., the case involved an accusation of sexual assault, and credibility of the witnesses was therefore very much at issue. However, the court focused on distinguishing the current situation from that in N.S. and found that the balancing of rights now differed, as it was not dealing with competing rights claims from two individuals, but rather the accused’s rights and the court’s “responsibility to ensure a safe courtroom in the context of a public health crisis.” The court not only denied the motion as a result, but also expressly forbid any witnesses from removing their masks while testifying. The court therefore expands the witness’s right to mask as a public duty, thereby presenting mask-wearing as an obligation in much the same way that Justice Abella framed the nature of wearing a niqab in her dissent in N.S. It is no surprise, therefore, that the court quotes approvingly from Justice Abella’s dissent, and emphasizes that the impairment to trial fairness is minimal. A public policy issue outweighs a minimal impairment of an individual right. Other Ontario courts have followed similar logic in cases like R. v. MacKinnon, R. v. Brown, and R. v. Siddiqi.
Meanwhile, in R. v. Shenker the Court of Quebec determined that removal of a mask during testimony would be required during trial, emphasizing the importance of demeanor evidence in trial fairness. Indeed, the Quebec court even expanded its concern about masks to ensure the comfort of the complainant. In paragraph 57, the court stated that “[t]o impose upon a complainant the obligation to testify regarding potentially traumatic events through a mask that is pressed upon her face, limiting her air intake and muffling her words, would not be in the interest of justice.”
In contrast to the more expansive view of unmasking as something which protects the accused, the complainant, and the justice system, the Quebec decision takes a much more individualistic view of the health concerns. In Shenker, the court emphasizes that all witnesses and counsel are comfortable unmasking and some even prefer it. Masking thus becomes a matter of individual choice rather than public duty like in Bdeir. Thus, the court structures its decision based on an assumption that each individual’s personal comfort is paramount, rather than the collective issue of public health. In addition, the court focuses on each individual’s personal risks, noting that “[i]n the case at bar, none of the prospective witnesses has voiced any concerns regarding their personal health should they testify without a mask on.” The court maintains its focus only on the individual, noting that if any witnesses had an issue with removing their masks, the court would take this concern very seriously, stating that “[t]he last thing the Court wants to do is impose something on a witness that will cause them undue anxiety.”
Ultimately, the issue of masking in both cases comes down to a court’s view of the rights or duties involved. If freedom of religion or public health are seen as public issues and obligations rather than choices, then the court will err in favor of masking despite any potential impact on witness testimony. Conversely, if wearing a niqab or a protective mask are simply choices that an individual makes, then the court will accordingly dismiss a witness’s potential concerns and require removal of a face covering of either form if necessary. ♦
David Zeligman is an S.J.D. candidate and a Herman Dooyeweerd Fellow in Law and Religion at Emory University School of Law. His dissertation explores the potential challenges that religious lawyers face in reconciling their faith and their profession. He can be found on Twitter @davidzeligman.
Zeligman, David. “Masking as Religious Obligation vs. Masking for Public Safety.” Canopy Forum, December 7, 2022. https://canopyforum.org/2022/12/07/masking-as-religious-obligation-vs-masking-for-public-safety/.