In a pandemic, even face of an accuser must be masked

Justice Julie Bourgeois has made it a rule during the pandemic that everyone in her courtroom where a mask. It’s also the law in Ontario.

But as an Ottawa Uber driver’s sexual assault trial was about to begin recently, he asked that the alleged victim — one of his passengers — be required to remove her mask while testifying.

Credibility was a central issue in the case, and it was important to be able to assess the witness’s facial expressions, his lawyer argued.

In a case that may have set a new COVID-era precedent, the judge refused the request, ruling that protecting people in the courtroom overrode the defendant’s wish to see his accuser in full.

“A trial with witnesses having their nose and mouth covered can hardly be viewed as unfair in the midst of a public health pandemic,” said Bourgeois. “The (accused's) right to make full answer and defence needs to be balanced against the competing and broader societal interest of public health and safety.”

The case hearkens back to a 2012 Supreme Court of Canada ruling that said there is a “strong connection” between getting a fair trial and being able to see a witness's face. But the court said in some cases judges could allow Muslims to wear a face-obscuring niqab while testifying.

Defence lawyer Diane Condo could not be reached and Crown prosecutor Lia Bramwell declined through an assistant to comment.

But a spokesman for the Criminal Lawyers' Association said Bourgeois's ruling made sense, noting that Zoom video hearings have become a routine alternative to in-person courtroom trials, and COVID-19 cases keep popping up in courthouses.

John Struthers, a Toronto defence lawyer, said he gets alerts from the province's attorney general's ministry every day highlighting six or seven new infections linked to Ontario's 100 courthouses.

“It would seem we have to be flexible, we have to compromise,” he said. “By the time we get to this situation, where people are in little Plexiglas cages with masks on, you're better off using Zoom.”

Courts across the country have struggled to keep operating during the pandemic, resulting in delays and lengthy backlogs of cases. In Ontario, many litigants have chosen to have their case heard by video call, but in-person trials also still occur, said Struthers.

The Ottawa case involved an Uber driver accused of sexually assaulting a passenger sitting in the front seat of his car. Since the chief issue was the credibility of witnesses, the defence argued that seeing their faces was important to assessing their truthfulness.

But Bourgeois ruled that she must apply the precautionary principle, especially given the danger of aerosol spread of the virus, and stressed that there were options for testifying virtually.

Struthers said one senior judge told him she actually gets a better read on witnesses when they give evidence through Zoom.

“She says, `I'm sitting here in my office, I have a 32-inch screen in front of me,' ” he recalled. “`I can see their eyes dilate when they speak, I can hear their breathing in my earphones. I get a much more intimate view of that witness on my computer than I do in the courtroom.' ”

The lawyer said he personally finds a witness's facial cues of limited value in challenging credibility. Citing contradictory evidence or prior statements or inconsistencies in testimony is more effective, he argued, saying he's done just that repeatedly in video trials.

But Struthers acknowledged that some lawyers believe facial cues are important, and that being in the august surroundings of a courtroom makes witnesses take their role more seriously than if they're “on their couch in their pyjamas.”

The Supreme Court of Canada grappled with a similar question in a 2012 case involving a Muslim sexual assault complainant, and whether she should have to remove her niqab.

The court's majority said judges should weigh witnesses' religious rights against the accused's rights to a fair trial, and only order the face coverings taken off if crucial to the fairness of the trial.

“There is a strong connection between the ability to see the face of a witness and a fair trial,” then-Chief Justice Beverley McLachlin wrote. “Being able to see the face of a witness is not the only — or indeed perhaps the most important — factor in cross-examination or accurate credibility assessment. But its importance is too deeply rooted in our criminal justice system to be set aside absent compelling evidence.”