R v NS

NS, a Muslim sexual-assault complainant, sought to testify wearing her niqab. The SCC declined a categorical rule. The trial judge must balance the witness's religious freedom against the impact on trial fairness, considering the salience of demeanour evidence in the particular case.

NS alleged sexual assault by relatives. She wished to testify with her niqab on, citing sincere religious belief. The accused argued his fair-trial rights required visibility of demeanour for credibility assessment.

How is religious freedom in testimony balanced against trial fairness?

Case-by-case balancing required. Sent back for reconsideration.

A witness's religious right to wear a niqab while testifying must be balanced against trial fairness. The trial judge considers (a) the sincerity of the religious belief, (b) the importance of demeanour evidence in this trial, (c) whether accommodations short of removal are available, and (d) the seriousness of any unfairness if the niqab is worn.

McLachlin CJ refused to adopt either a "always remove" or "never remove" rule. Demeanour evidence is contested in cognitive science but remains relied upon by triers of fact. The balance must respect both freedom of religion and the right to a fair trial.

Defines Canadian doctrine on religious clothing in court. Has been applied in subsequent trial rulings. Echoes broader debates about reasonable accommodation in Quebec's Bill 21.

R v NS, 2012 SCC 72, [2012] 3 SCR 726.

McLachlin CJ, LeBel J, Deschamps J, Fish J, Abella J, Rothstein J, Cromwell J