ONTARIO COURT OF JUSTICE

CITATION: R. v. Siddiqi, 2021 ONCJ 648

DATE: 2021 12 07

COURT FILE No.: Brampton 19-15525

BETWEEN:

HER MAJESTY THE QUEEN

— and —

SHAMEL SIDDIQI

Before Justice M. M. Rahman

Application heard October 20, 2021

Ruling released on December 7, 2021

Natasha Engineer....................................................................... counsel for the Crown

Barry Plant.......................................................................... counsel for Shamel Siddiqi

RAHMAN, J.:

1. Introduction

[1] The accused, Shamel Siddiqi, is charged with sexual assault. His four-day trial was set to begin before me, in person, on November 1, 2021. Mr. Siddiqi’s lawyer contacted the trial co-ordinator’s office during the week of October 11, 2021 to find out if the court would require the complainant to be masked while testifying, or whether the court would allow the defence’s request to have her remove her mask when testifying. Because the issue of whether a witness should be unmasked while testifying in court is a trial management issue, I directed that the matter be addressed before me, as the assigned trial judge, on the record in court as a pre-trial application.

[2] I heard submissions (by videoconference) on October 20, 2021. The defence requested that the court require the complainant and her mother to remove their masks when testifying because their credibility is the central issue at trial. The defence argued that the visibility of the witnesses’ faces (particularly the complainant’s) was necessary for the court to properly assess their credibility and therefore necessary to make full answer and defence. The Crown opposed the defence request on the grounds that current public health guidelines require masking.

[3] Because the matter was to be addressed in trial-readiness court on October 25, I told the parties I would give them my bottom-line decision before then. This was necessary because, if the court dismissed the application, the defence wanted the chance to consider whether it preferred having the witness appear in person while masked, or on video while unmasked. On October 22, 2021, I released a brief endorsement explaining that I would require all participants in the courtroom to remain masked. I explained that full written reasons would follow. These are those reasons.

2. The Basis for the Request

[4] Mr. Siddiqi is charged with one count of sexual assault. The Crown alleges that he sexually assaulted the complainant while she was a passenger in the Uber that he was driving. Both parties agreed that the complainant’s credibility will be a central issue at the trial. The defence said that the complainant’s mother’s credibility will also be an issue, though not as significant as the complainant’s.

[5] Mr. Siddiqi’s counsel, Mr. Plant, argued that it is essential to his client’s defence that the court be able to see the complainant’s full face when she testifies. He argued that, because credibility is the principal issue in the case, it is essential that the complainant’s face be visible when she testifies. Mr. Plant further argued that the pandemic is at a less dangerous stage, with a higher vaccination rates and lower case counts than in previous months.[^1] Although he did not know whether the complainant was vaccinated, he said that it was safe to assume that she was because of the province’s high vaccination rate.

3. Analysis

[6] Mr. Plant relied on the Supreme Court’s decision in R. v. N.S.[^2] in support of his request to have the complainant not wear a mask. While I accept that a court must adopt an approach that balances the accused’s fair trial rights, this case calls for a different balancing of interests than the Supreme Court was concerned with in N.S.[^3] N.S. was not decided during a global pandemic. Rather, it was a case in which the Supreme Court set out the factors to consider in deciding whether a witness should be permitted to wear a religious face covering. Unlike N.S., the reason witnesses’ faces are covered in the courtrooms of 2021 is to prevent the spread of a potentially deadly virus. Public health officials have advised that wearing masks is one of a series of measures that can be used to minimize the risk of spreading SARS-CoV-2. The balancing of interests here must consider the risk of spreading the virus to everyone in the courtroom. The risk of contracting a highly contagious virus was not a factor in N.S. As my colleague, Bourgeois J., said in R. v. Bdeir:

what we are trying to balance here are not an accused and a witness' constitutional rights but rather, we are applying the precautionary principle and our responsibility to ensure a safe courtroom in the context of a public health crisis and balancing an accused's constitutional rights against that larger public health context.[^4]

[7] I agree with my colleague’s ultimate conclusion in Bdeir that applying the precautionary principle to this issue means that everyone in the courtroom should keep their masks on. As my colleague observed, having several people in a courtroom all day, breathing the same air, means that the simple mitigation measure of wearing a mask is important:

Being in a courtroom, all day, with up to nine other people, requires this simple measure, especially in the face of the evolution of scientific knowledge about the propagation of the virus by aerosols.[^5]

[8] The defence’s position regarding masking is based on the questionable premise that if a witness wears a mask that it necessarily adversely impacts the accused’s right to a fair trial and to make full answer and defence. I do not consider that the visibility of a witness’ facial demeanour to be so essential to making credibility determinations or the right to make full answer and defence. In my view, the defence overstates the link between the visibility of facial demeanour and the accused’s right to a fair trial.

[9] Respectfully, most people, including lawyers, drastically overestimate their ability to make credibility assessments based on a person’s demeanour.[^6] Witnesses are strangers to trial judges and trial lawyers. It is one thing to be able to tell when close friends or family members are being untruthful based on their demeanour. Most people have a baseline for people they know well. That baseline does not exist for strangers telling their version of events in the foreign environment of a courtroom.[^7] Witnesses testify in the uncomfortable, and often unfamiliar, setting of a courtroom. Everyone is focussed on what they are saying, and they know that their words are being recorded. Add to that the fact that witnesses might be testifying about things that they consider private or embarrassing in a public setting. In such circumstances, demeanour is of very limited value in assessing credibility.

[10] Moreover, relying on a witness’ demeanour in making credibility decisions carries with it a real danger of making decisions based on implicit biases and improper generalizations about human behaviour. As Copeland J. recently observed in denying a defence application to have witnesses remove their masks, “Reliance on demeanour in assessing credibility and reliability is based on generalizations about what people's demeanour means, and such generalizations can be wrong.”[^8] Using a witness’ facial demeanour to make credibility decisions runs the real risk of allowing improper generalizations and stereotypes to influence those decisions. because a witness’ demeanour can be affected by many things that have nothing to do with whether the witness is being truthful or not. As Epstein J.A. observed:

It is now acknowledged that demeanour is of limited value because it can be affected by many factors including the culture of the witness, stereotypical attitudes, and the artificiality of and pressures associated with a courtroom. [^9]

[11] To the extent that demeanour is relevant, it is worth noting that a mask does not obscure everything about a witness’ demeanour. Demeanour does not just refer to a witness’ facial expressions. When witnesses wear masks, all that is obscured is the lower half of their face. The witness’ eyes remain visible, as does their body language. But more importantly, the language that witnesses use, their mood, and the speed or hesitation in their responses are all still clear even with masks. The way witnesses answer, their attitude, and the words they use are more useful in deciding credibility than facial expressions.

[12] Having presided over scores of trials before the COVID-19 pandemic, I can safely say that I have never been asked to decide a credibility case based on a witness’ facial demeanour, nor would I be comfortable making a credibility decision based on the way the lower half of a witness’ face moved. Indeed, it is rare to read a trial decision where a trial judge verbalizes reliance on facial demeanour.[^10] The requirement that trial judges explain their credibility findings in their reasons has likely had the effect of minimizing reliance on facial demeanour — at least consciously — because articulating how a witness’ facial expression impacts on a credibility finding would be difficult.

[13] My experience during the pandemic, with only masked witnesses, has been no different than my experience before the pandemic. My concern is more with the substance of a witness’ evidence than with their facial demeanour. I agree with the following observation by Copeland J. about:

[69] My experience with masked witnesses during the pandemic is consistent with my experience as a trial judge in general: that the substance of a witness' evidence, and its relationship to the other evidence in a trial, are better guides to assessing credibility and reliability than a witness' demeanour. I refer to factors such as the logic and consistency of a witness' version of events; whether a witness' evidence is internally and externally consistent; whether the evidence of a witness is consistent or inconsistent with objective evidence; the consistency or lack of consistency in the witness' evidence in cross-examination; whether a witness had made statements inconsistent with their evidence in the past on matters of significance; evidence of bias, interest, or a motive to lie on the part of a witness; and the witness' ability to recall events. I do not entirely rule out demeanour, because as a matter of law, it is a factor that a trier of fact is entitled to consider. But in my experience, it is of limited value.

4. Conclusion and postscript

[14] When balancing the limited value of demeanour evidence against the very real public health risk created by the transmission of SARS-CoV-2, I determined that requiring witnesses to keep their masks on could not result in an unfair trial. Consequently, I dismissed the defence’s application.

[15] At the end of the hearing, Mr. Plant asked that he be allowed to consider whether he would prefer to proceed remotely if I ruled that everyone in the courtroom had to remain masked. The Crown had no issue with the matter proceeding either remotely or in person. Because the parties agreed on how to conduct the trial, I did not order that it proceed one way or the other. As it turned out the parties agreed to a remote trial and the entire trial was heard remotely over four days.

[16] In separate written reasons I acquitted Mr. Siddiqi, in part, because of the complainant’s unreliability. Neither party asked me to consider her facial demeanour, for any reason, even though it was visible on video. My finding that her evidence was not sufficiently reliable was not based on anything I noticed about her facial demeanour. Rather, the defence successfully pointed to reliability concerns based on the lack of consistency with her evidence and other evidence. I note that this concern about her evidence would have been apparent even if she had testified in court wearing a mask.

Released: December 7, 2021

Justice M.M. Rahman

[^1]: The application and trial were heard before the identification of the Omicron variant as a variant of concern. [^2]: R. v. N.S., 2012 SCC 72. [^3]: R. v. MacKinnon, 2021 ONSC 2749 at paras. 29-31. [^4]: R. v. Bdeir, 2021 ONCJ 54, at para 7. [^5]: Ibid at para. 6. [^6]: On a related point, most lawyers also overestimate their cross-examination skills. [^7]: See for example, R. v. T.M. 2014 ONCA 854 at para. 64, where the court observed that without having a baseline by which to judge accused persons’ reactions, “their demeanour, even while testifying, is subject to misinterpretation.” [^8]: MacKinnon, supra, at para. 67. [^9]: R. v. Rhayel, 2015 ONCA 377, at para. 85. [^10]: Admittedly there are exceptions, such as R v. B.G., 2021 ONSC 6248, which Mr. Plant relied on in support of his application.