SCC Case Information
N.S. v. Her Majesty the Queen, et al.
(Ontario) (Criminal) (By Leave)
(Publication ban in case) (Publication ban on party)
Canadian charter - criminal.
Case summaries are prepared by the Office of the Registrar of the Supreme Court of Canada (Law Branch) for information purposes only.
(PUBLICATION BAN ON PARTY)
Charter of Rights – Right to life, liberty and security of the person – Right to make full answer and defence – Right to cross-examine witness – Freedom of religion – Preliminary inquiry into allegations of sexual assault – Complainant sought permission to wear niqab while testifying – Whether a sexual assault complainant can wear her niqab for religious reasons while testifying.
At a preliminary inquiry into allegations of historical sexual assaults on N.S. by her uncle, M--l.S., and her cousin, M--d.S., N.S. requested permission to testify while wearing her niqab. She based her request on her Muslim religious beliefs. In conformity with those beliefs, N.S. wears a hijab – a full body dress – and a niqab – a veil which covers her entire face except for her eyes – when she is in public or in the presence of males who are not “direct” members of her family. The stricture applies in the presence of M--d.S. As of the date of the appellate proceedings, she had been wearing the niqab and hijab for approximately five years. M--d.S. and the Crown objected.
The preliminary inquiry judge ordered that she remove her niqab before testifying in the preliminary inquiry. On a motion for extraordinary remedies, the Superior Court judge granted an application for certiorari quashing the order requiring N.S. to remove her veil during testimony, but denied an application for mandamus allowing N.S. to wear her veil while testifying. The Court of Appeal allowed the appeal in part. It affirmed the Superior Court’s order quashing the preliminary inquiry judge’s order and remitted the matter to the preliminary inquiry judge for a decision in accordance with its reasons. A cross-appeal was dismissed.