Court File No. 33989
IN THE SUPREME COURT OF CANADA
(ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO)
(Appellant in the Court of Appeal for Ontario)
HER MAJESTY THE QUEEN
(Respondent in the Court of Appeal for Ontario)
M---D.S. and M---L.S.
(Respondents in the Court of Appeal for Ontario)
ONTARIO HUMAN RIGHTS COMMISSION, BARBRA SCHLIFER COMMEMORATIVE CLINIC,
CRIMINAL LAWYERS’ ASSOCIATION (ONTARIO), MUSLIM CANADIAN CONGRESS, SOUTH ASIAN LEGAL CLINIC OF ONTARIO,
BARREAU DU QUÉBEC, CANADIAN CIVIL LIBERTIES ASSOICATION, WOMEN’S LEGAL EDUCATION AND ACTION FUND,
CANADIAN COUNCIL ON AMERICAN-ISLAMIC RELATIONS
FACTUM OF THE INTERVENER ONTARIO HUMAN RIGHTS COMMISSION
PART I - STATEMENT OF FACTS
1. The Intervener, the Ontario Human Rights Commission (“OHRC”), relies on the statement of facts as set out in the factum of the appellant. The OHRC takes no position with respect to any disagreement between the parties on factual matters.
PART II - QUESTIONS IN DISPUTE
2. The central issue in this appeal is the apparent conflict between the intersecting religious and equality rights of a witness and the fair trial rights of the accused in the context of a criminal proceeding. The OHRC’s submissions set out a process, based in existing case law, to analyze and reconcile potentially competing rights. The proposed process can apply, with appropriate modifications, to any competing rights claims whether they arise under the Canadian Charter of Rights and Freedoms (the Charter), human rights legislation, the common law or otherwise.
PART III - STATEMENT OF ARGUMENT
A. Rationale for Process for Reconciling Competing Rights Claims
3. A clear and transparent process confirmed by this Honourable Court will help other decision-makers address the increasing numbers of competing rights claims coming before them. It will give greater certainty to parties and ensure that all concerned understand at the outset how the rights will be assessed, and any tension between them resolved. This clarity will help ensure that the rights reconciliation process will not be a ‘moving target’ left to open-ended discretion of each decision-maker who encounters a situation where different rights appear to be in conflict.
4. A defined process for rights reconciliation is particularly important where access to the Canadian criminal justice system is concerned. When engaged in the criminal process, both the alleged victim and the accused are vulnerable. There can be a direct relationship between one’s perception of how victims of crime are dealt with in the justice system and the decision to report certain offences. The Court of Appeal acknowledged the very real possibility that the reconciliation of N.S.’s right to wear a niqab with the rights asserted by the accused may determine whether a trial on the merits is possible. This case underscores the need for a rights reconciliation process that is known and understood by all concerned at the outset of the criminal trial process.
5. The Court of Appeal declined to determine N.S.’s right to wear a niqab while testifying at the preliminary inquiry and trial. It identified some parameters, but not a clear process for reconciling the rights claimed. This Honourable Court has the opportunity to resolve the significant uncertainty that remains.
B. Overview of Process for Reconciling Competing Rights Claims
6. The OHRC asks this Honourable Court to adopt and apply the following process for addressing competing rights claims. Not all steps will apply to every competing rights claim and the elements may be applied with some flexibility, as required by the circumstances.
i. Understand the applicable legal and factual context.
ii. Determine the rights that are being asserted and that are actually engaged. This involves determining whether the claimed rights are appropriately characterized and defined and are legally valid.
iii. Determine whether the protections sought actually fall within the scope of the right in the particular context. This involves delineating the boundaries of the relevant rights. Determine whether proper delineation of, or reasonable adjustments to, the rights makes it possible to avoid any conflict between them. If so, this will effectively end the analysis.
iv. Assess whether there is a substantial interference with the rights in question beyond the trivial and insubstantial. If so, the rights remain in conflict requiring balancing under s. 1 of the Charter.
v. Balance the rights under s. 1 of the Charter. This would require the Court to choose one right over the other or to find compromises to both rights. In the case of a claim that does not arise under the Charter, the balancing still occurs having regard to the general principles articulated in the s. 1 analysis.
C. Legal Foundation for Proposed Reconciliation Process
7. When considering two rights that seem to be at odds, the goal of the court should be to resolve the conflict between the constitutionally guaranteed and equally important rights of two individuals or groups. Charter principles require a ‘reconciliation’ that fully respects the importance of both sets of rights.
8. This Honourable Court has noted the distinction between ‘reconciling’, which implies “harmonizing two seemingly contradictory things so as to render them compatible” and ‘balancing’, which suggests that one right will ultimately outweigh the other.
9. This Honourable Court has also said that there is no hierarchy of Charter rights. All have equal status and no right is more important than the others.
10. At the same time, no Charter right is absolute. Every right is inherently limited by the rights and freedom of others.
11. If rights do come into conflict, Charter principles require a ‘reconciliation’ that fully respects the importance of both sets of rights so that each is given full force and effect within the relevant context, to the greatest extent possible.
12. The reconciliation of competing rights cannot be addressed in the abstract. Charter rights do not exist in a vacuum and their meaning and content are dependent on context. Charter rights must be examined in a contextual manner in order to settle conflicts between them. Context determines where the line should be drawn between competing rights in a particular case. Therefore, at the outset and throughout the process, a court must fundamentally appreciate the full factual context and the particular societal and constitutional values at stake.
13. Next, a court should determine the rights that are being asserted and are actually engaged in the social and factual situation before it. In many cases the engagement of the right may be self-evident. In other cases it may be less clear that a right is triggered. In such circumstances, it may be necessary to conduct a further inquiry and hear evidence to establish that the claim falls within the scope of the right as defined by the courts.
14. Many apparent rights conflicts may be avoided by asking whether they actually fall within the scope of the right in the particular context. This would involve delineating the boundaries of the involved rights. Proper delineation of, or reasonable adjustments to, the rights make it possible to avoid any conflict between them. If so, this will effectively end the analysis. For example, after properly scoping the boundaries of the rights, it may be that there is no actual intrusion of one right onto the other. This was the conclusion of this Honourable Court in Reference re Same-Sex Marriage and Trinity Western, supra.
15. Where the scoping exercise does not resolve the conflict, it is necessary to determine the extent of the interference with the rights in question. If an interference with a right is minor or trivial, the right is not likely to receive protection. There is no conflict unless there is a sufficient interference with, burden or intrusion on a right. Where the impact on one right is minimal or insignificant in nature, that right must give way to the other and there is no need to proceed any further in the analysis. Therefore, if the enjoyment of one right does not result in a real burden or impact on the other, the rights are not actually in conflict and are reconciled.
16. If there is substantial interference with the rights in question, then the court must shift to a reconciliation exercise. In a Charter case, this is done under s. 1. In a case that does not involve a Charter challenge, this balancing may also happen, having regard to the general approach and principles set out in under s. 1.
17. A contextual approach to balancing interests under s. 1 requires a consideration of the extent to which the “core” or fundamental aspect of a right is engaged. Where the conduct is at the “periphery” of a right, it is more likely to be required to give way to a right whose core values are engaged.
18. If there is a substantial interference with the rights in question, one right may ultimately have to give way to the other, or both rights may have to be compromised. Nevertheless, a court should adopt measures that minimally impair the rights. The OHRC agrees with the Court of Appeal’s recognition that ultimately, after undertaking all of the above steps, when rights remain in conflict it may not be necessary for one right to be completely overridden by the other. Rather a search for “constructive compromises” is preferred that will still allow maximum enjoyment of each right as is possible in the circumstances.
D. Application of the Proposed Reconciliation Process to this Case
i. Understanding the Context
19. Given the importance of context, the first step in the OHRC’s proposed process is to understand the particular social and factual context within which the rights conflict arises.
20. N.S. is uniquely vulnerable. Not only is she a woman who is an alleged victim of childhood sexual assaults by family members, but as a Muslim, she is also part of a minority group that experiences significant stigma in Canada and around the world. N.S.’s religion and gender cannot be considered separately but must be viewed in an intersectional manner. In order to properly contextualize her situation, she should be viewed as a niqab-wearing Muslim woman who is now facing the difficult situation of testifying in court about alleged childhood sexual assaults by family members.
21. The gender equality component of N.S.’s claim is twofold, and each aspect compounds the other. Parliament and this Honourable Court have recognized the relationship between sexual violence and the victimization of women and children. This Honourable Court has emphasized the gender equality dimensions of the treatment of sexual assault complainants.
22. Further, as only Muslim women wear the niqab, arguments against the niqab challenge a Muslim’s woman’s ability to access services and institutions in which others can freely participate. Therefore, although the crimes alleged to have been committed against N.S. are inextricably linked to the fact that she is a woman, she also is faced with a potential impediment to her ability to seek redress because she is a Muslim woman.
23. An appreciation of the context also requires sensitivity to society’s response to the niqab. We cannot ignore the reality that Canada and other countries are currently wrestling with their approach to niqab-wearing women. In many respects, niqab-wearing women bear the brunt of societal intolerance and distrust towards Muslims.
24. Even though niqab-wearing women in non-Islamic countries make up a minute percentage of the population, they appear to garner disproportionate media and government attention. Several governments are currently contemplating or have enacted legislation that specifically targets niqab-wearing women. For example, Quebec is proposing legislation that could bar women who wear niqabs from accessing government services and working in positions that would provide government services to the public. France and Belgium have banned niqab-wearing women from all public places including streets, stores, courts, schools and hospitals and the Netherlands is implementing a similar ban. That governments are contemplating, or have legalized overt discrimination against niqab-wearing women, largely in response to public opinion, underscores the degree to which they face barriers to equal participation in society.
25. As in Mills, evaluating the right to make full answer and defence in relation to N.S.’s equality and religious rights requires an “acute sensitivity” to this factual and societal context.
ii. Determining which Rights are Engaged
26. The analysis at this stage is relatively straightforward. In the circumstances, the engagement of the rights of full answer and defence, religious rights and gender rights are self-evident. For an accused, the right to make full answer and defence is triggered by his involvement in the criminal justice process. In a case involving alleged sexual violence against a woman, the same holds true for gender equality rights. Finally, as N.S. is being asked to remove what is obviously religious attire, her religious rights are clearly engaged.
iii. Delineating/Scoping the Rights
27. In the OHRC’s proposed rights reconciliation process, determining what rights are engaged is a separate exercise from assessing whether the measures sought actually fall within the scope of the asserted rights. In this case, the accused must first demonstrate that the ability to see a witness’ full face in order to assess her demeanour, both at the preliminary inquiry and at any subsequent trial, is a fundamental component of the right to make full answer and defence. If this is demonstrated, the witness must show that wearing the niqab is a sincerely held religious belief that has a nexus with her religion.
28. There is no intrinsic constitutional entitlement to look upon the full face of a witness, either as a stand-alone right or as a means to obtain demeanour evidence. The right to “face one’s accuser” is not to be taken to mean face-to-face confrontation in the literal sense.
29. The delineation of the boundaries of fundamental justice in s. 7 must reflect a diversity of interests and an appreciation of other rights. These include a balance between the rights of the accused and the interests of society, such as having offences, particularly those involving sexual violence against women and children, reported and prosecuted and accepting minority beliefs and practices in keeping with Canada’s multicultural heritage recognized in s. 27 of the Charter. An assessment of trial fairness must be made from the perspective of the accused, the community and the complainant. Fundamental justice does not require the most favourable procedures that could possibly be imagined.
30. There are several different ways an appropriate balance between fostering the search for truth and protecting other important interests has been recognized. For example, the Criminal Code permits a transcript of evidence of a witness who is unable to attend trial because of disability, even when the accused’s counsel is not present for the taking of the evidence. Audio evidence is also permitted in certain circumstances. The state’s interest in protecting police informers may override the Crown’s general duty of disclosure of information to the defence.
31. The rules of evidence and practical considerations that often arise in judicial proceedings mean that there are many situations where the ability to see a witness’ full face is compromised. The appellant’s factum provides twenty such examples.
32. The OHRC supports the submissions of the appellant and other interveners regarding the very limited of role of facial expressions in assessing demeanour. Personal biases, cultural characteristics, and disabilities (either of the witness or decision-maker) may affect the ability to interpret demeanour from observation of facial expressions. Reliance on such evidence not only presupposes the ability of the trier of fact to identify and interpret facial cues but also that certain indicators consistently convey the same meaning in all witnesses. Given the diversity of characteristics in decision-makers and witnesses, this assumption is unreliable.
33. With regard to N.S.’s religious rights, while courts are entitled to conduct legitimate and effective inquiries in order to ensure that a belief has a nexus with religion, is held in good faith, is neither fictitious or capricious and is not an artifice, the focus is on the personal beliefs of the claimant, not conformity with established religious practices or dogma. Given the highly subjective nature of religion as recognized by this Honourable Court, courts generally do not rule on the validity of or religious justification for any religious practice or belief.
34. The Court of Appeal for Ontario accepted that delineating N.S.’s religious rights in this case could be done by requiring N.S. to provide evidence, through her own testimony, concerning the nature of her beliefs, and to answer questions about whether those beliefs are consistent with current practices. The Court noted that “past perfection is not a prerequisite to the exercise of one’s constitutional right to freedom of religion”.
35. The record is sufficient to establish N.S.’s sincere religious belief that she must wear a niqab which has a nexus to the Islamic faith and is within the scope of s. 2(a) of the Charter.
36. As in Trinity Western and Reference re Same-Sex Marriage, proper delineation of the scope of full answer and defence at this stage may result in a finding that N.S.’s rights do not actually intrude on the right to make full answer and defence. Therefore, the rights are not actually in conflict and may be reconciled at this stage by simply affirming N.S.’s right to wear the niqab.
iv. Assessing the Interference with the Rights
37. Even if that is not the case, once the rights are delineated in context, it is clear that it would be a significant and substantial interference with N.S.’s religious and gender rights to require her to testify without her niqab. In this context, requiring N.S. to remove it is likely to be traumatic and may re-victimize her. She, and other women in similar circumstances, would be faced with an impossible decision between justice and faith.
38. This Honourable Court can determine the degree of interference with the core versus the periphery of each right. While the effect on N.S.’s rights are substantial, the OHRC agrees with the appellant that the record in this case and a proper scoping of the relationship between the niqab, the ability to assess demeanour and the role of demeanour evidence in assessing credibility reveals that the accused’s rights are not significantly interfered with.
v. Balancing the Rights
39. If after considering the four previous steps, the rights are found to remain in conflict, they must be balanced under s. 1 of the Charter. At this stage a search for “constructive compromises” is necessary. Diverse interests cannot always be given full voice. However, measures that at least intrude minimally on the affected rights are preferred. For example, in a New Zealand case, the judge required two witnesses to remove their burqas but permitted them to give their evidence from behind screens so that only the judge, counsel and female court staff would be able to see their faces.
PART IV - SUBMISSIONS WITH RESPECT TO COSTS
40. The OHRC makes no submission with respect to costs.
PART V – ORDER REQUESTED
41. The OHRC seeks to present ten minutes of oral argument at the hearing of this appeal.
ALL OF WHICH IS RESPECTFULLY SUBMITTED. Toronto, November 17, 2011.
Ontario Human Rights Commission
Anthony D. Griffin
Ontario Human Rights Commission
PART VI – TABLE OF AUTHORITIES
Bothwell v. Ontario (Minister of Transportation), 2005 CanLII 1066 (ON S.C.D.C.) para. 13
Brockie v. Brillinger (No. 2) (2002), 43 C.H.R.R. D/90 (Ont. Sup.Ct.) para. 17
Bruker v. Marcovitz,  3 S.C.R. 607 para. 15
Dagenais v. Canadian Broadcasting Corp.,  3 S.C.R. 836 para. 9, 11
Elmasry and Habib v. Roger’s Publishing and MacQueen (No. 4), 2008 BCHRT 378 (CanLII) para. 23
Multani v. Commission scolaire Marguerite-Bourgeoys,  1 S.C.R. 256 para. 33
R. v. Barros, 2001 SCC 51 para. 30
R. v. J.Z.S.,  B.C.J. No. 1915 (B.C.C.A.); aff’d  S.C.J. No. 1 citing R. v. R. (M.E.) (1989), 49 C.C.C. (3d) 475 (N.S.S.C. (A.D.)) para. 28, 29
R. v. Levogiannis,  4. S.C.R. 475 para. 29
R. v. Mills,  3 S.C.R. 668 para. 9, 10, 11, 12, 21, 25, 29
R. v. N.S., 2010 ONCA 670 para. 12, 18, 34
R. v. Razamjoo,  D.C.R. 408 (D.C.N.Z.) para. 39
Reference re Same-Sex Marriage,  3 S.C.R. 698 para. 8, 9, 12, 14, 36
Ross v. New Brunswick School District No. 15,  1 S.C.R. 825 para. 8, 17
Syndicat Northcrest v. Amselem,  2 S.C.R. 551 para. 15, 33
Trinity Western University v. British Columbia College of Teachers,  1 S.C.R. 772 para. 8, 10, 14, 36
Angelique Chrisafis, “French women become first to stand trial for wearing niqabs” The Guardian (17 June 2011)
“Belgian ban on full veils comes into force” BBC News (23 July 2011) para. 24
Bill 94, An Act to establish guidelines governing accommodation requests within the Administration and certain institutions, 2d Sess., 39th Leg. Que., 2011 para. 24
“Dutch burqa ban – maximum fine to be 380 euros” Radio Netherlands Worldwide (15 September 2011) para. 24
“EU Rights Body Blasts Veil Ban” Onislam & Newspapers (21 July 2011) para. 24
Honourable Justice Franck Iacobucci, “Reconciling Rights: the Supreme Court of Canada’s Approach to Competing Charter Rights” (2003) 20 S.C.L.R. (2d) 137 para. 12
Judicial Studies Board, Equal Treatment Bench Book, Chp. 3.3 (Religious Dress) (updated April 2010) para. 32, 35
“Muslims face negative perception in Canada: study; Results echo those from British and U.S. surveys” Ottawa Citizen (16 October 2011) para. 20
Ontario Human Rights Commission, Policy and Guidelines on Racism and Racial Discrimination (June 2005, updated December 2009) para. 20
PART VII – LEGISLATION
Criminal Code of Canada, R.S., 1985, c. C-46
Evidence on Commission
Order appointing commissioner
709. (1) A party to proceedings by way of indictment or summary conviction may apply for an order appointing a commissioner to take the evidence of a witness who
(a) is, by reason of
(i) physical disability arising out of illness, or
(ii) any other good and sufficient cause,
not likely to be able to attend at the time the trial is held; or
(b) is out of Canada.
(2) A decision under subsection (1) is deemed to have been made at the trial held in relation to the proceedings mentioned in that subsection.
R.S., 1985, c. C-46, s. 709; R.S., 1985, c. 27 (1st Supp.), s. 150; 1994, c. 44, s. 72.
Application where witness is ill
710. (1) An application under paragraph 709(1)(a) shall be made
(a) to a judge of a superior court of the province in which the proceedings are taken;
(b) to a judge of a county or district court in the territorial division in which the proceedings are taken; or
(c) to a provincial court judge, where
(i) at the time the application is made, the accused is before a provincial court judge presiding over a preliminary inquiry under Part XVIII, or
(ii) the accused or defendant is to be tried by a provincial court judge acting under Part XIX or XXVII.
Evidence of medical practitioner
(2) An application under subparagraph 709(1)(a)(i) may be granted on the evidence of a registered medical practitioner.
R.S., 1985, c. C-46, s. 710; R.S., 1985, c. 27 (1st Supp.), s. 151; 1994, c. 44, s. 73.
Admitting evidence of witness who is ill
711. Where the evidence of a witness mentioned in paragraph 709(1)(a) is taken by a commissioner appointed under section 710, it may be admitted in evidence in the proceedings if
(a) it is proved by oral evidence or by affidavit that the witness is unable to attend by reason of death or physical disability arising out of illness or some other good and sufficient cause;
(b) the transcript of the evidence is signed by the commissioner by or before whom it purports to have been taken; and
(c) it is proved to the satisfaction of the court that reasonable notice of the time for taking the evidence was given to the other party, and that the accused or his counsel, or the prosecutor or his counsel, as the case may be, had or might have had full opportunity to cross-examine the witness.
R.S., 1985, c. C-46, s. 711; R.S., 1985, c. 27 (1st Supp.), s. 152; 1994, c. 44, s. 74; 1997, c. 18, s. 102
Application for order when witness out of Canada
712. (1) An application that is made under paragraph 709(1)(b) shall be made
(a) to a judge of a superior court of criminal jurisdiction or of a court of criminal jurisdiction before which the accused is to be tried; or
(b) to a provincial court judge, where the accused or defendant is to be tried by a provincial court judge acting under Part XIX or XXVII.
Admitting evidence of witness out of Canada
(2) Where the evidence of a witness is taken by a commissioner appointed under this section, it may be admitted in evidence in the proceedings.
(3) [Repealed, R.S., 1985, c. 27 (1st Supp.), s. 153]
R.S., 1985, c. C-46, s. 712; R.S., 1985, c. 27 (1st Supp.), s. 153; 1994, c. 44, s. 75; 1997, c. 18, s. 103.
Providing for presence of accused counsel
713. (1) A judge or provincial court judge who appoints a commissioner may make provision in the order to enable an accused to be present or represented by counsel when the evidence is taken, but failure of the accused to be present or to be represented by counsel in accordance with the order does not prevent the admission of the evidence in the proceedings if the evidence has otherwise been taken in accordance with the order and with this Part.
Return of evidence
(2) An order for the taking of evidence by commission shall indicate the officer of the court to whom the evidence that is taken under the order shall be returned.
R.S., 1985, c. C-46, s. 713; R.S., 1985, c. 27 (1st Supp.), s. 203; 1997, c. 18, s. 104.
Evidence not excluded
713.1 Evidence taken by a commissioner appointed under section 712 shall not be excluded by reason only that it would have been taken differently in Canada, provided that the process used to take the evidence is consistent with the law of the country where it was taken and that the process used to take the evidence was not contrary to the principles of fundamental justice.
1994, c. 44, s. 76.
Audio evidence — witness in Canada
714.3 The court may order that a witness in Canada give evidence by means of technology that permits the parties and the court to hear and examine the witness elsewhere in Canada, if the court is of the opinion that it would be appropriate, considering all the circumstances including
(a) the location and personal circumstances of the witness;
(b) the costs that would be incurred if the witness had to be physically present;
(c) the nature of the witness’ anticipated evidence; and
(d) any potential prejudice to either of the parties caused by the fact that the witness would not be seen by them.
1999, c. 18, s. 95.
Audio evidence — witness outside Canada
714.4 The court may receive evidence given by a witness outside Canada by means of technology that permits the parties and the court in Canada to hear and examine the witness, if the court is of the opinion that it would be appropriate, considering all the circumstances including
(a) the nature of the witness’ anticipated evidence; and
(b) any potential prejudice to either of the parties caused by the fact that the witness would not be seen by them.
1999, c. 18, s. 95.
Oath or affirmation
714.5 The evidence given under section 714.2 or 714.4 shall be given
(a) under oath or affirmation in accordance with Canadian law;
(b) under oath or affirmation in accordance with the law in the place in which the witness is physically present; or
(c) in any other manner that demonstrates that the witness understands that they must tell the truth.
1999, c. 18, s. 95.
 “The first question is whether the rights alleged to conflict can be reconciled: Trinity Western University v. British Columbia College of Teachers,  1 S.C.R. 772, 2001 SCC 31 at para. 29. Where the rights cannot be reconciled, a true conflict of rights is made out. In such cases, the Court will find a limit on religious freedom and go on to balance the interests at stake under s. 1 of the Charter: Ross v. New Brunswick School District No. 15,  1 S.C.R. 825, at paras. 73-74.” Reference re Same-Sex Marriage,  3 S.C.R. 698 at para. 50.
 Reference re Same-Sex Marriage, ibid.; Dagenais v. Canadian Broadcasting Corp.,  3 S.C.R. 836 at p. 877; R. v. Mills,  3 S.C.R. 668 at para. 61.
 Mills, ibid.; Trinity Western, supra note 1 at para. 29.
 Mills, ibid.; Dagenais, supra note 2.
 Mills, ibid. at paras. 17, 21 and 61; Reference re Same-Sex Marriage, supra note 1 at paras. 50 and 52; The Honourable Justice Franck Iacobucci, “Reconciling Rights: the Supreme Court of Canada’s Approach to Competing Charter Rights” (2003) 20 S.C.L.R. (2d) 137 at pages 140, 141 and 159; R. v. N.S., 2010 ONCA 670 (CanLII) at para. 48.
 In Bothwell v. Ontario (Minister of Transportation), 2005 CanLII 1066 (ON S.C.D.C.), the Court concluded that the claimant had failed to demonstrate that his objection to a digital driver’s license photo was related to his religious beliefs. The evidence indicated that the claimant had raised a number of privacy, rather than religious, concerns and that his actions were inconsistent with his asserted religious beliefs.
 Syndicat Northcrest v. Amselem,  2 S.C.R. 551 at para. 84; Bruker v. Marcovitz,  3 S.C.R. 607.
 Ross v. New Brunswick School District No. 15,  1 S.C.R. 825; Brockie v. Brillinger (No. 2) (2002), 43 C.H.R.R. D/90 (Ont. Sup.Ct.) at paras. 51-56.
 R. v. N.S., supra note 5 at para. 84.
 “Muslims face negative perception in Canada: study; Results echo those from British and U.S. surveys” Ottawa Citizen (16 October 2011); see also the OHRC’s Policy and Guidelines on Racism and Racial Discrimination (June 2005, updated December 2009), which addresses various forms of racial stereotyping and bias towards racialized groups, including Muslims.
 Mills, supra note 2 at paras. 48, 91.
 Ibid. at paras. 58.
 In Elmasry and Habib v. Roger’s Publishing and MacQueen (No. 4), 2008 BCHRT 378 at para. 142 (CanLII) the British Columbia Human Rights Tribunal accepted expert evidence that the black burkha, which also covers a woman’s head and face, is often used as a common image to depict Muslims as foreign.
 Bill 94, An Act to establish guidelines governing accommodation requests within the Administration and certain institutions, 2d Sess., 39th Leg. Que., 2011.
 In France, women failing to comply with the law may be fined 150 euros and required to take part in a “citizenship class”; Angelique Chrisafis, “French women become first to stand trial for wearing niqabs” The Guardian (17 June 2011). In Belgium they are punished with a penalty of 137.50 euros and up to seven days in jail; “Belgian ban on full veils comes into force” BBC News (23 July 2011). The Human Rights Commissioner of the Council of Europe has criticized these laws saying that that are contrary to human rights standards and fuel intolerance towards Muslims; “EU Rights Body Blasts Veil Ban” Onislam & Newspapers (21 July 2011).
 “Dutch burqa ban – maximum fine to be 380 euros” Radio Netherlands Worldwide (15 September 2011).
 R. v. R. (M.E.) (1989), 49 C.C.C. (3d) 475 (N.S.S.C. (A.D.)) at 484; adopted in R. v. J.Z.S.,  B.C.J. No. 1915 (B.C.C.A.) at para. 34; aff’d  S.C.J. No. 1.
 Mills, supra note 2 at para. 72, R. v. Levogiannis,  4. S.C.R. 475 at p. 486; R. v. J.Z.S. (B.C.C.A.) ibid.
 Mills, ibid.
 Criminal Code, sections 709 to 713.
 Ibid. sections 714.3 and 714.4.
 R. v. Barros, 2001 SCC 51.
 Appellant’s Factum at para. 40.
 Judicial Studies Board, Equal Treatment Bench Book, Chp. 3.3 (Religious Dress) (updated April 2010) at 3-18/4.
 Amselem, supra note 7 at paras. 50-56, Multani v. Commission scolaire Marguerite-Bourgeoys,  1 S.C.R. 256 at para. 35.
 R. v. N.S., supra note 5 at para. 68.
 While there is a diversity of opinion among Muslims concerning whether the niqab is mandated, the judicial system must respect the choice made by each woman; Judicial Studies Board: Equal Treatment Bench Book, supra note 24 at 3-18/2. Similarly, debate concerning whether the niqab subjugates women and is contrary to gender equality must not influence the analysis. In any event, even if one accepts the premise that certain Muslim women are being forced to wear the niqab, restricting their access to the justice system places a further burden on these women and increases their vulnerability to sexual offences and other violent crimes.
 R. v. Razamjoo,  D.C.R. 408 (D.C.N.Z.). The OHRC does not necessarily agree with the findings of the New Zealand court. This case is cited merely as an example of one court’s attempt to arrive at a least intrusive compromise.