It was all over the news that on October 13, 2010, the Court of Appeal for Ontario declared that a lower court judge was in error in ordering a woman to remove a facial cover, a niqab, at a preliminary hearing. The case is called
R. v. N.S and pitted the interest of the witness's right to religious freedom against an accused right to a fair trial. The result was not surprising and will no doubt be embraced by a large majority of both the public and the legal community.
The court decided that the preliminary hearing judge should have conducted an inquiry into whether the witness should have been allowed to testify in the manner she desired. This meant too that she should have told of her right and afforded the opportunity to consult her own counsel.
The court noted a "quandary faced by the preliminary inquiry judge":
- [47] . . . Both M---d.S. [the accused] and N.S. [the witness] have powerful claims that seem to lead to diametrically opposed conclusions. At least at first blush, it would appear that the constitutional values in issue collide. Faced with an apparent collision of constitutional values, a court must first attempt to reconcile the rights so that each is given full force and effect within the relevant context..
- [48] Reconciliation of apparently conflicting rights requires that no Charter right be treated as absolute and that no one right be regarded as inherently superior to another: R. v. Mills, [1999] 3 S.C.R. 668, at para. 61; Dagenais, at p. 877; R. v. Crawford, [1995] 1 S.C.R. 858, at para. 34. Nor can the reconciliation of competing rights be addressed in the abstract without regard to the specific factual context...
The interesting aspect of the case the I wish to focus on is not the decision itself, but what court said about the
Charter. What was interesting was that the process for getting the matter heard was generated by what is commonly called an application for a
Charter remedy. The court simply said this was not necessary. While a discrete application is often the only way to get relief, frequently invoking the
Charter separately it is not necessary. In this instance, the decision about whether the witness could testify in the manner she proposed was a decision that was part of the judge's responsibility in controlling the proceedings before him or her. In a fundamental way, it was no different from the decision to allow a witness to wear sunglasses. The comparison was the appeal court's way of illustrating the question. In the sunglass situation, the witness might have a medical reason for having them. On the other hand, the glasses might be a mere fashion statement and therefore allowing the witness that privlege might effect the fairness of the trial.
The simple fact is that the mere invocation of the
Charter is not necessarily a request for a
Charter remedy. In many instances, it is simply a matter of applying
Charter principles to the interpretation of a statue or rule and there is no need for special notice to the other party.
