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³ Under section 15 of the Charter, equality is guaranteed. Section 28 also specifically protects the equality of women: Canadian Charter of Rights and Freedoms, Constitution Act, 1982, online at http://laws -lois.justice.ga.ca/eng/const/page-15.html.

⁴ Under section 2, all Canadians are guaranteed “freedom of conscience and religion” and “freedom of thought, belief, opinion and expression”: Canadian Charter of Rights and Freedoms, Constitution Act, 1982, online at http://laws-lois.justice.ga.ca/eng/const/page-15.html.

⁵ Canadian Charter of Rights and Freedoms, Constitution Act, 1982, online at http://laws-lois.justice.ga.ca/eng/const/page-15.html.

⁶ R v NS, [2012] SCJ No 72 at para 94.

⁷ Intersectional analysis places the gendered body within a broad cultural context to consider how race, class, ability, age, sexuality, racialization, etc. work to destabilize static ideas about gender experience: Dhruvarajan, Vanaja, “The Multiple Oppression of Women of Colour,” in Racism in Canada, ed. McKague, Ormond (Saskatoon: Fifth House Publishers, 1991), 101–4Google Scholar; Brown, Rosemary, “Overcoming Racism and Sexism—How?,” in Racism in Canada, ed. McKague, Ormond (Saskatoon: Fifth House Publishers, 1991), 163–77.Google Scholar

⁸ R v NS (2009) OJ No 1766 at para 80.

⁹ Ibid. at para 80.

¹⁰ Ibid. at para 29.

¹¹ R v NS, [2012] at para 4.

¹² R v NS (2009), 95 OR (3d) 735.

¹³ R v NS (2010) ONCA 670, 102 OR (3d) 161.

¹⁴ LEAF is a national organization promoting women’s legal rights. The Barbara Schlifer Clinic provides support to victims of violence. The Canadian Council on American-Islamic Relations promotes understanding and goodwill between Muslim and non-Muslim Canadians. And the Canadian Civil Liberties Association intervenes in the courts in cases involving violations of civil freedoms. The Ontario Human Rights Commission, the Criminal Lawyers’ Association (Ontario), the Muslim Canadian Congress, the South Asian Legal Clinic, and the Barreau du Québec also intervened, but their briefs are less relevant to the current argument. The Criminal Lawyers’ Association and the Muslim Canadian Congress argued in favor of the accused and insisted on the importance of demeanor evidence in a full and fair trial: http://aspercentre.ca and http://www.cbc.ca/news/politics/story/2012/12/20.

¹⁵ Brief of the Barbara Schlifer Clinic at para 28: http://schliferclinic.com/advocacy-and-social-change/legal/facial-coverings.html.

¹⁶ R v NS, [2012] at para 1.

¹⁷ Ibid. at para 9.

¹⁸ Ibid. at para 13.

¹⁹ Ibid. at para 16.

²⁰ Ibid. at para 21.

²¹ Ibid. at para 37.

²² Ibid. at para 38.

²³ Ibid. at para 60.

²⁴ Ibid. at para 66.

²⁵ Ibid. at para 68.

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²⁸ Ibid. at para 86.

²⁹ Ibid. at para 82.

³⁰ Ibid. at para 106.

³¹ Ibid. at para 95.

³² Ibid. at para 4.

³³ http://www.cbc.ca/.../toronto-court-rules-woman-must-remove-niqab-to-testify. Weisman J. is 75 and faces mandatory retirement, and this may well be his final judgment.

³⁴ Sherene Razack has argued, “Muslims are stigmatized, put under surveillance and denied full citizenship rights”: Razack, Sherene, Casting Out: The Eviction of Muslims from Western Law and Politics (Toronto: University of Toronto Press, 2008), 173CrossRefGoogle Scholar; Arat-Koc, Sedef, “The Disciplinary Boundaries of Canadian Identity after September 11: Civilizational Identity, Multiculturalism, and the Challenge of Anti-Imperialist Feminism,” Social Justice 32, no. 4 (2005): 32–49Google Scholar; Haque, Eve, “Homegrown, Muslim and Other: Tolerance, Secularism, and the Limits of Multiculturalism,” Social Identities 16, no. 1 (2010): 79–101.CrossRefGoogle Scholar

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⁴² Marie Lavigne summarized in Sheila McDonough, 125.

⁴³ Todd, Sharon, “Veiling the ‘Other,’ Unveiling Our ‘Selves’: Reading Media Images of the Hijab,” Canadian Journal of Education 23, no. 4 (1998): 441–42.CrossRefGoogle ScholarTodd also points out the positive signifiers of hijāb. However, with historical Eurocentric constructions of the covered face as suspect, it is not likely that positive readings of niqab would be at the forefront of adjudicators’ minds.

⁴⁴ Hoodfar, “More Than Clothing: Veiling as an Adaptive Strategy,” 5–7.

⁴⁵ Hoodfar, “The Veil in Their Minds and On Our Heads,” 3.

⁴⁶ Meshal, “Banners of Faith and Identities in Construct: The Hijāb in Canada,” 72.

⁴⁷ Hoodfar, “The Veil in Their Minds and On Our Heads,” 3.

⁴⁸ Jiwani, Discourses of Denial, 189.

⁴⁹ James, Carl, “Perspectives on Multiculturalism in Canada,” in Possibilities & Limitations: Multicultural Policies and Programs in Canada, ed. James, Carl (Winnipeg: Fernwood Publishing, 2005), 19–20Google Scholar; Bannerji, Himani, The Dark Side of the Nation: Essays on Multiculturalism, Nationalism, and Gender (Toronto: Canadian Scholars’ Press Inc., 2000).Google Scholar

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⁵² Ibid. at para 60.

⁵³ Dhamoon, Rita, Identity/Difference Politics: How Difference is Produced, and Why it Matters (Vancouver: UBC Press, 2009), 134.Google Scholar

⁵⁴ Ibid. at para 73–74.

⁵⁵ Ibid. at para 70.

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⁵⁸ Ibid., 187.

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⁶³ Jane Doe v Board of Commissioners of Police for the Municipality of Metropolitan Toronto, [1990] OJ No 1584, 4.

⁶⁴ R v Ewanchuk, [1999] 1 SCR at para 69.

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⁶⁶ http://www.ca/mythbusting/rape-myths/

⁶⁷ Sheehy, Elizabeth, “Let Me Tell You a Story: English-Canadian Newspapers and Sexual Assault Myths,” Canadian Journal of Women and the Law 22, no. 2 (2010): 301–28.Google Scholar

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⁷⁰ Sheehy, “Evidence Law and the ‘Credibility Testing’ of Women,” 157 at 173.

⁷¹ It is not surprising that the Criminal Lawyers’ Association (Ontario) intervened on behalf of the accused, asserting the “importance of demeanor” in the conduct of a fair trial: http://aspercentre.ca.

⁷² R v Mills, [1999] 3 SCR 668.

⁷³ R v O’Connor, [1995] SCJ No 98 at para 193.

⁷⁴ Ibid. at para 194.

⁷⁵ “Factum of the Intervener, Women’s Legal Education and Action Fund,” at 18.

⁷⁶ Ibid.

⁷⁷ R v NS, [2012] at para 67.

⁷⁸ R v NS, [2012] at para 18.

⁷⁹ Ibid. at para 27.

⁸⁰ R v Davis, (1995), 165 AR 243.

⁸¹ R v NS, [2012] at para 103.

⁸² Ibid. at para 104. See: Criminal Code, RSC 1985, c C–46, s 714.3, ss 709 and 713; R v Chapdelaine, 2004 ABQB 39 (CanLII); R v Butt (2008), 280 Nfld & PEIR 129.

⁸³ Ekman, Paul, Telling Lies (New York: W. W. Norton, 1992)Google Scholar; Morrison, Barry R., Porter, Laura L., and Fraser, Ian H., “The Role of Demeanour in Assessing the Credibility of Witnesses,” Advocates Quarterly 33 (2007): 170.Google Scholar

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⁸⁵ Faryna v Chorny, [1952] 2 DLR 354 at 356.

⁸⁶ R v Pelletier (1995) 165 AR 138.

⁸⁷ Law Society of Upper Canada v Neinstein [2010] 99 OR (3d) 1 (Ont Ct A), at para 66.

⁸⁸ Stone, Marcus, “Instant Lie Detection?: Demeanor and Credibility in Criminal Trials,” Criminal Law Review (1991): 821 at 829Google Scholar; see also, Blumenthal, Jeremy, “A Wipe of the Hands, a Lick of the Lips: The Validity of Demeanor Evidence in Assessing Witness Credibility,” Nebraska Law Review 72 (1993): 1157–1205.Google Scholar

⁸⁹ Sultana, Hoodfar, and McDonough, The Muslim Veil in North America: Issues and Debates.

⁹⁰ R v NS (2009) at para 29.

⁹¹ “Factum of the Intervener, Women’s Legal Education and Action Fund,” at 15.

⁹² Edward Cody, “France Moves to Fine Muslim Women With Full-Face Islamic Veils,” Washington Post, May 20, 2010, http://www.washington-post.com/w-p-d-y-n/content/story/2010/05/19/ST201006212.html?519.

⁹³ Amnesty International, “Belgium Votes to Ban Full-Face Veils,” Amnesty International, April 30, 2010, http://www.amnesty.org/en/news-and-updates/belgium-votes-ban-full-face-veils-2010-04-3; Adelman, Howard, “Contrasting Commissions on Interculturalism: The Hijab and the Workings of Interculturalism in Québec and France,” Journal of Intercultural Studies 32, no. 3 (2011): 245CrossRefGoogle Scholar; Fernando, Mayanthi L, “Reconfiguring Freedom: Muslim Piety and the Limits of Secular Law and Public Discourse in France,” American Ethnologist 37, no. 1 (2010): 19CrossRefGoogle Scholar; and Tarhan, Gulce, “Roots of the Headscarf Debate: Laicism and Secularism in France and Turkey,” Journal of Political Inquiry 4 (2011).Google Scholar

⁹⁴ Bill 94, An Act to establish guidelines governing accommodation requests within the Administration and certain institutions, 1st Sess, 39th Leg, Quebec, 2010 (“Bill 94, 2010”).

⁹⁵ Fournier and See, “The ‘Naked Face’ of Secular Exclusion,” 63.

⁹⁶ See: http://www.cbc.ca/news/canada/story/2012/12/19/f-niqab-list.html.

⁹⁷ The proposed Charter of Quebec Values would prohibit the wearing of any religious symbols, including yarmulkas, kippas, turbans, burkas, hijabs, niqabs, and large crosses, in the giving or receiving of any civil service. Employees who refuse to conform would be fired. While some employers might be given the option to opt out of the regime for the first five years, daycare workers and elementary school teachers, primarily women, would be denied this opt-out, presumably on the assumption that wearing such symbols corrupts children: http://www.montrealgazette.com/life/Attacks+against+Muslim+women+increasing/8990742/story.html.

⁹⁸ Kim Mackrael and Les Perreaux, “Muslim Women Must Show Faces When Taking Citizenship Oath,” Globe and Mail, December 12, 2011, http://www.theglobeandmail.com/news/politics/muslim-women-must- show-faces- when-taking-citizenship-oath/article2267972.

⁹⁹ Fournier and See, “The ‘Naked Face’ of Secular Exclusion,” 63.

¹⁰⁰ Brief of the Canadian Council on American-Islamic Relations, at para 10: http://caircan.ca/downloads/CAIRCAN_Factum_33989. Martha Nussbaum has asserted that laws “often put religious minorities in something like Antigone’s dilemma: either they have to violate a sacred requirement or they have to break the law and/or forfeit some state-granted privilege”: Nussbaum, Martha, Liberty of Conscience: In Defense of America’s Tradition of Religious Equality (New York: Basic Books, 2008), at 167.Google ScholarIn the case of the niqab, however, only women face such choices. See also, Bakht, Natasha, “Objection, Your Honour! Accommodating Niqab-Wearing Women in Courtrooms,” in Legal Practice and Cultural Diversity, eds. Grillo, Ralphet al. (London: Ashgate Publishing, 2009), 115.Google Scholar

¹⁰¹ Fournier and See, “The ‘Naked Face’ of Secular Exclusion,” 63.