R. v. N.S.,

JurisdictionOntario
JudgeDoherty, Moldaver and Sharpe, JJ.A.
Neutral Citation2010 ONCA 670
Date13 October 2010
CourtCourt of Appeal (Ontario)

R. v. N.S. (2010), 269 O.A.C. 306 (CA)

MLB headnote and full text

Temp. Cite: [2010] O.A.C. TBEd. OC.020

Her Majesty The Queen (respondent) v. N.S. (appellant/respondent by way of cross-appeal) and M---d.S. (respondent/appellant by way of cross-appeal) and M---l.S. (respondent)

(C50534; C50892; 2010 ONCA 670)

Indexed As: R. v. N.S. et al.

Ontario Court of Appeal

Doherty, Moldaver and Sharpe, JJ.A.

October 13, 2010.

Summary:

A Muslim woman (N.S.) alleged repeated sexual assaults by her uncle and cousin (accused) when she was a child. The accused were charged with sexual offences and elected trial by judge and jury. Whenever N.S. was in public or the presence of males other than "direct" family members, her religious beliefs required that she be fully covered except for her eyes (hijab and niqab). At the preliminary inquiry, the accused sought an order that N.S. remove her niqab while testifying. N.S. objected on religious grounds. The only time N.S. had revealed her face in public was when she had her uncovered face photographed for her driver's licence, which was done by a female photographer behind a screen that protected N.S. from potential male onlookers. The preliminary inquiry judge determined that the issue involved balancing the conflicting constitutional rights of the accused's right to make full answer and defence and N.S.'s religious beliefs. The judge ruled that N.S.'s decision to have her face photographed, with the result that some males such as police officers could see her uncovered face, showed that there were exceptions to removing her niqab and that her "religious belief is not that strong". The judge ordered that N.S. uncover her face to testify. The preliminary inquiry did not proceed. N.S. sought certiorari to quash the judge's order, which she claimed violated her s. 2(a) Charter right to freedom of religion.

The Ontario Superior Court, in a judgment reported [2009] O.T.C. Uned. A81, quashed the judge's order because the judge lacked jurisdiction to balance the competing Charter values and N.S. was prejudiced by being questioned by the judge without first being given an opportunity to consult with counsel. The issue of whether N.S. could testify at the preliminary inquiry without having to remove her niqab was not determined by the court. That issue was remitted to the judge for redetermination based on the principles set out by the court. N.S. appealed. One of the accused cross-appealed. The issues on appeal were: (1) whether the preliminary inquiry judge had jurisdiction to order N.S. to remove her niqab before testifying; (2) if so, did the judge err in so ordering; and (3) should the Court of Appeal determine whether N.S. should be required to remove her niqab before testifying.

The Ontario Court of Appeal allowed the appeal in part and dismissed the cross-appeal. The court held that the preliminary inquiry judge had jurisdiction to determine whether N.S. had to remove her niqab before testifying. However, the court affirmed that the judge erred in ordering her to remove her niqab without first conducting the appropriate inquiry. The decision had to be made in the unique context of each case. The context was not adequately considered. The court remitted the matter for completion of the preliminary inquiry, with directions as to the proper procedure and factors to be considered in determining, in the context of this case, whether N.S. would be permitted to testify without removing her niqab.

Editor's Note: Certain names in the following case have been initialized or the case otherwise edited to prevent the disclosure of identities where required by law, publication ban, Maritime Law Book's editorial policy or otherwise.

Civil Rights - Topic 382

Freedom of conscience and religion - Infringement of - What constitutes - [See second Criminal Law - Topic 3540 ].

Civil Rights - Topic 3133

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Right of accused to make full answer and defence - [See second Criminal Law - Topic 3540 ].

Civil Rights - Topic 8544

Canadian Charter of Rights and Freedoms - Interpretation - Particular words and phrases - Appropriate and just remedy - Section 24(1) of the Charter provided that a person whose Charter rights were denied could apply to a court of competent jurisdiction for an appropriate and just remedy - The accused were charged with sexually assaulting N.S. - At the preliminary inquiry, the judge ordered that N.S. remove her head covering (niqab) before she testified - N.S., who objected on religious grounds (freedom of religion, Charter s. 2(a)), applied for certiorari to quash the order - The order was quashed by the Superior Court, but no order was made under s. 24(1) respecting N.S.'s religious rights - N.S. appealed - She claimed an order under s. 24(1) that she be permitted to testify without removing her niqab - At issue was the relationship between the court's appellate jurisdiction and s. 24(1) of the Charter - The Ontario Court of Appeal stated that "Section 24(1) does not create appellate jurisdiction but instead works within the existing appellate structure to provide a further source of remedial power. ... in light of the broadened remedial scope available on a certiorari application after Dagenais, and this court's power on an appeal from an order granting or refusing certiorari to make the order that could have been made in the Superior Court, it would seem that this court's remedial powers also encompass the power contemplated by s. 24(1) of the Charter. ...What does this mean? Simply, that the claim advanced by N.S. can be fully addressed on its merits, and the appropriate remedial order made within the confines of the extraordinary remedy application." - See paragraphs 26 to 27.

Criminal Law - Topic 3527

Preliminary inquiry - Jurisdiction - Charter issues - [See first Criminal Law - Topic 3540 ].

Criminal Law - Topic 3540

Preliminary inquiry - Jurisdiction - To order witness to remove head covering (e.g., niqab) - The Ontario Court of Appeal held that a preliminary inquiry judge had jurisdiction to order a witness to remove her head covering (niqab) before testifying - Although the judge had no remedial jurisdiction under the Charter, he could consider and balance Charter issues when exercising his statutory powers - The Criminal Code gave a judge powers to make order that would inevitably engage a consideration of competing Charter values - Section 537(1)(i) provided that a preliminary inquiry judge could "regulate the course of the inquiry in any way that appears to the justice to be consistent with this Act" - Since the judge had the power to regulate how and when a witness would testify, there was also the power to determine "whether a witness should be required to change his or her attire before testifying" - Whether a judge should order a witness to remove a niqab before testifying was not the same as arguing that the judge had no jurisdiction to make that order - See paragraphs 28 to 44.

Criminal Law - Topic 3540

Preliminary inquiry - Jurisdiction - To order witness to remove head covering (e.g., niqab) - The accused were charged with sexually assaulting N.S. - At the preliminary inquiry, the judge ordered that N.S. remove her head covering (niqab) before she testified - The judge held that when N.S. permitted her uncovered face to be photographed for her driver's licence, it showed that there were exceptions to her religious beliefs, and that her "religious belief is not that strong" - N.S. claimed that the order violated her s. 2(a) Charter right to freedom of religion - The accused argued that not making the order would violate their right to make full answer and defence (Charter, ss. 7, 11(d)) - The Ontario Court of Appeal set aside the order, as it was made without proper consideration of the context of the case - The matter was remitted to the preliminary inquiry judge to determine the issue based on the court's directions as to the procedure and factors to be considered - First, the sincerity of N.S.'s religious beliefs had to be determined - If they were sincere, then it had to be determined how allowing N.S. to testify with her niqab impacted the accused's Charter rights and how those competing Charter values could be reconciled - See paragraphs 45 to 103.

Criminal Law - Topic 3540

Preliminary inquiry - Jurisdiction - To order witness to remove head covering (e.g., niqab) - The Ontario Court of Appeal stated that "if a witness establishes that wearing her niqab is a legitimate exercise of her religious freedoms, then the onus moves to the accused to show why the exercise of this constitutionally protected right would compromise his constitutionally protected right to make full answer and defence. I would think that a defence objection to the wearing of the niqab at the preliminary inquiry, based exclusively on the argument that the witness's facial demeanour was important in the assessment of credibility or to assist the cross-examination, would fail, at least to the extent that the judge would begin by permitting the witness to wear her niqab while giving her evidence. ... the same objection made at trial in a case to be tried by a jury raises much more difficult problems. ... Where the credibility of the witness is virtually determinative of the outcome, denying the jury full access to that witness's demeanour could be seen as detracting from the accused's right to trial by jury. ... If, in the specific circumstances, the accused's fair trial right can be honoured only by requiring the witness to remove the niqab, the niqab must be removed if the witness is to testify. I would hope, however, ... the parties will engage in good faith efforts to reconcile competing interests and produce a satisfactory resolution that recognizes and respects both the accused's right to a fair trial and the witness's right to exercise her religious beliefs." - See paragraphs 98 to 102.

Criminal Law - Topic 3614

Preliminary inquiry - Adjudication and review - Judicial review - General - The accused were charged with sexually assaulting N.S. - At the preliminary inquiry, the judge ordered that N.S. remove her head covering (niqab) before she testified - N.S., who objected on religious grounds (freedom of religion, Charter s. 2(a)), applied for certiorari to quash the order - At issue was the scope of review - The Ontario Court of Appeal stated that "where an accused or the Crown seeks to review, by way of extraordinary remedies, decisions made at the preliminary inquiry, the moving party must normally demonstrate jurisdictional error ... However, where the moving party on the extraordinary remedy application is a 'third party', that is a party other than the accused or the Crown, and the challenged order finally decides the rights of the third party, extraordinary remedy relief will lie on the more traditional grounds of both jurisdictional error and error of law on the face of the record ... an order directing a witness to remove her niqab that offended her right to exercise freely her religious beliefs would, absent adequate justification for that order, offend Charter principles and constitute an error of law on the face of the record. Consequently, when a witness challenges an order made by the preliminary inquiry judge on the basis that the order is contrary to Charter principles, the Superior Court must review the correctness of the challenged decision in determining whether to grant extraordinary remedy relief." - See paragraphs 22 to 25.

Criminal Law - Topic 7121

Extraordinary remedies - Certiorari - General (incl. scope of review) - [See Criminal Law - Topic 3614 ].

Cases Noticed:

R. v. Arcuri (G.), [2001] 2 S.C.R. 828; 274 N.R. 274; 150 O.A.C. 126; 2001 SCC 54, refd to. [para. 23].

R. v. Deschamplain (D.), [2004] 3 S.C.R. 601; 347 N.R. 287; 211 O.A.C. 323; 2004 SCC 76, refd to. [para. 23].

Cohen and Quebec (Attorney General), Re, [1979] 2 S.C.R. 305; 27 N.R. 344, refd to. [para. 23].

R. v. Cunningham - see Cunningham v. Lilles et al.

Cunningham v. Lilles et al. (2010), 399 N.R. 326; 283 B.C.A.C. 280; 480 W.A.C. 280; 254 C.C.C.(3d) 1; 2010 SCC 10, refd to. [para. 23].

Canadian Broadcasting Corp. v. Dagenais et al., [1994] 3 S.C.R. 835; 175 N.R. 1; 76 O.A.C. 81, refd to. [para. 23].

R. v. Meltzer and Laison, [1989] 1 S.C.R. 1764; 96 N.R. 391, refd to. [para. 26].

R. v. Mills, [1986] 1 S.C.R. 863; 67 N.R. 241; 16 O.A.C. 81, refd to. [para. 26].

R. v. Caccamo, [1976] 1 S.C.R. 786; 4 N.R. 133, refd to. [para. 30].

R. v. Dubois, [1986] 1 S.C.R. 366; 66 N.R. 289; 41 Man.R.(2d) 1, refd to. [para. 30].

R. v. Hynes (D.W.), [2001] 3 S.C.R. 623; 278 N.R. 299; 208 Nfld. & P.E.I.R. 181; 624 A.P.R. 181; 2001 SCC 82, refd to. [para. 30].

R. v. Seaboyer and Gayme, [1991] 2 S.C.R. 577; 128 N.R. 81; 48 O.A.C. 81, refd to. [para. 30].

R. v. Howard (D.A.) (2009), 292 Nfld. & P.E.I.R. 6; 902 A.P.R. 6; 250 C.C.C.(3d) 102 (P.E.I.C.A.), refd to. [para. 30].

R. v. Conway (P.) (2010), 402 N.R. 255; 263 O.A.C. 61; 255 C.C.C.(3d) 473; 2010 SCC 22, refd to. [para. 30].

R. v. L.R. (1995), 100 C.C.C.(3d) 329 (Ont. C.A.), refd to. [para. 31].

Davidson v. Slaight Communications Inc., [1989] 1 S.C.R. 1038; 93 N.R. 183, refd to. [para. 36].

Vancouver Sun v. Canada (Attorney General) - see Application Under Section 83.28 of the Criminal Code, Re.

Application Under Section 83.28 of the Criminal Code, Re, [2004] 2 S.C.R. 332; 322 N.R. 161; 199 B.C.A.C. 1; 326 W.A.C. 1; 2004 SCC 43, refd to. [para. 36].

Multani v. Commission scolaire Marguerite-Bourgeoys et al., [2006] 1 S.C.R. 256; 345 N.R. 201; 2006 SCC 6, refd to. [para. 36].

R. v. Girimonte (F.) (1997), 105 O.A.C. 337; 121 C.C.C.(3d) 33 (C.A.), refd to. [para. 37].

Reference Re Same-Sex Marriage, [2004] 3 S.C.R. 698; 328 N.R. 1; 2004 SCC 79, refd to. [para. 47].

R. v. Mills (B.J.), [1999] 3 S.C.R. 668; 248 N.R. 101; 244 A.R. 201; 209 W.A.C. 201, refd to. [para. 48].

R. v. Crawford (C.) - see R. v. Creighton (D.J.) and Crawford (C.).

R. v. Creighton (D.J.) and Crawford (C.), [1995] 1 S.C.R. 858; 179 N.R. 161; 81 O.A.C. 359, refd to. [para. 48].

R. v. E.B. (2002), 154 O.A.C. 167; 57 O.R.(3d) 741 (C.A.), refd to. [para. 49].

R. v. Osolin, [1993] 4 S.C.R. 595; 162 N.R. 1; 38 B.C.A.C. 81; 62 W.A.C. 81, refd to. [para. 49].

R. v. Lyttle (M.G.), [2004] 1 S.C.R. 193; 316 N.R. 52; 184 O.A.C. 1; 2004 SCC 5, refd to. [para. 49].

R. v. L.O. - see R. v. D.O.L.

R. v. D.O.L., [1993] 4 S.C.R. 419; 161 N.R. 1; 88 Man.R.(2d) 241; 51 W.A.C. 241, refd to. [para. 50].

R. v. Darrach (A.S.), [2000] 2 S.C.R. 443; 259 N.R. 336; 137 O.A.C. 91; 2000 SCC 46, refd to. [para. 51].

R. v. Rose (J.), [1998] 3 S.C.R. 262; 232 N.R. 83; 115 O.A.C. 201, refd to. [para. 51].

R. v. Levogiannis (1990), 43 O.A.C. 161; 1 O.R.(3d) 351 (C.A.), affd. [1993] 4 S.C.R. 475; 160 N.R. 371; 67 O.A.C. 321, refd to. [para. 52].

R. v. Davis (I.), [2008] N.R. Uned. 233; [2008] 3 All E.R. 461 (H.L.), refd to. [para. 52].

Police v. Razamjoo, [2005] D.C.R. 408 (N.Z.), refd to. [para. 54].

R. v. R.E.M., [2008] 3 S.C.R. 3; 380 N.R. 47; 260 B.C.A.C. 40; 439 W.A.C. 40; 2008 SCC 51, refd to. [para. 56].

R. v. K.G.B., [1993] 1 S.C.R. 740; 148 N.R. 241; 61 O.A.C. 1, refd to. [para. 56].

Syndicat Northcrest v. Amselem et al., [2004] 2 S.C.R. 551; 323 N.R. 59; 2004 SCC 47, refd to. [para. 61].

Trinity Western University et al. v. College of Teachers (B.C.) et al., [2001] 1 S.C.R. 772; 269 N.R. 1; 151 B.C.A.C. 161; 249 W.A.C. 161; 2001 SCC 31, refd to. [para. 61].

Hutterian Brethren of Wilson Colony et al. v. Alberta, [2009] 2 S.C.R. 567; 390 N.R. 202; 460 A.R. 1; 462 W.A.C. 1; 2009 SCC 37, refd to. [para. 64].

A.M. v. Ryan, [1997] 1 S.C.R. 157; 207 N.R. 81; 85 B.C.A.C. 81; 138 W.A.C. 81, refd to. [para. 75].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 537(1)(i) [para. 38].

Authors and Works Noticed:

Dennis, Ian, The Right to Confront Witnesses: Meanings, Myths and Human Rights (2010), 4 Crim. L.R. 255, pp. 260, 261, 262 [para. 82].

Iacobucci, Frank, "Reconciling Rights" The Supreme Court of Canada's Approach to Competing Charter Rights (2002), 20 S.C.L.R.(2d) 137, pp. 140 [para. 47]; 141 [para. 48].

Roach, Kent, Constitutional Remedies in Canada (2009 Looseleaf Update), paras. 6.392, 6.426 [para. 27].

Counsel:

David Butt, for the appellant/respondent by way of cross-appeal, N.S.;

Michael Dineen, for the respondent/appellant by way of cross-appeal, M---d.S.;

No one appearing for the respondent M---l.S.;

Elise Nakelsky, for the respondent, Her Majesty The Queen;

Joanne Birenbaum and Susan M. Chapman, for the intervenor, Women's Legal Education and Action Fund;

Frank Addario, Emma Phillips and Simran Prihar, for the intervenor, Criminal Lawyers' Association;

Bradley Berg and Rahat Godil, for the intervenor, Canadian Civil Liberties Association;

Prabhu Rajan and Kikee Malik, for the intervenor, Ontario Human Rights Commission;

Tyler Hodgson and Margot G. Finley, for the intervenor, Muslim Canadian Congress.

This appeal and cross-appeal were heard on June 8-9, 2010, before Doherty, Moldaver and Sharpe, JJ.A., of the Ontario Court of Appeal.

On October 13, 2010, Doherty, J.A., released the following judgment for the Court of Appeal.

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54 practice notes
  • R. v. N.S. et al., (2012) 297 O.A.C. 200 (SCC)
    • Canada
    • Canada (Federal) Supreme Court (Canada)
    • December 20, 2012
    ...determine whether N.S. should be required to remove her niqab before testifying. The Ontario Court of Appeal, in a judgment reported (2010), 269 O.A.C. 306, allowed the appeal in part and dismissed the cross-appeal. The court held that the preliminary inquiry judge had jurisdiction to deter......
  • R. v. N.S., 2012 SCC 72
    • Canada
    • Supreme Court (Canada)
    • December 20, 2012
    ...of Wilson Colony” (2011), 56 McGill L.J. 719. APPEAL from a judgment of the Ontario Court of Appeal (Doherty, Moldaver and Sharpe JJ.A.), 2010 ONCA 670, 102 O.R. (3d) 161, 326 D.L.R. (4th) 523, 269 O.A.C. 306, 262 C.C.C. (3d) 4, 80 C.R. (6th) 84, 220 C.R.R. (2d) 146, [2010] O.J. No. 4306 (Q......
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    • Canada
    • Irwin Books Fundamental Justice: Section 7 of the Canadian Charter of Rights and Freedoms. Second Edition
    • June 22, 2019
    ...Pharmaceutical Society, [1992] 2 SCR 606, 74 CCC (3d) 289, 1992 CanLII 72................ 120, 191, 192, 193, 195, 198, 199 R v NS, 2010 ONCA 670 ....................................................................................... 38 R v NS, 2012 SCC 72 ........................................
  • Table of cases
    • Canada
    • Irwin Books Criminal Procedure. Fourth Edition
    • June 23, 2020
    ...218, 221, 222, 224 R v Nowazek, 2018 YKCA 12, 366 CCC (3d) 389 ............................................. 289 R v NS, 2010 ONCA 670, aff’d 2012 SCC 72 .............................................. 401, 554 R v Nuttall, 2018 BCCA 479, 368 CCC (3d) 1.............................................
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43 cases
  • R. v. N.S. et al., (2012) 297 O.A.C. 200 (SCC)
    • Canada
    • Canada (Federal) Supreme Court (Canada)
    • December 20, 2012
    ...determine whether N.S. should be required to remove her niqab before testifying. The Ontario Court of Appeal, in a judgment reported (2010), 269 O.A.C. 306, allowed the appeal in part and dismissed the cross-appeal. The court held that the preliminary inquiry judge had jurisdiction to deter......
  • R. v. N.S., 2012 SCC 72
    • Canada
    • Supreme Court (Canada)
    • December 20, 2012
    ...of Wilson Colony” (2011), 56 McGill L.J. 719. APPEAL from a judgment of the Ontario Court of Appeal (Doherty, Moldaver and Sharpe JJ.A.), 2010 ONCA 670, 102 O.R. (3d) 161, 326 D.L.R. (4th) 523, 269 O.A.C. 306, 262 C.C.C. (3d) 4, 80 C.R. (6th) 84, 220 C.R.R. (2d) 146, [2010] O.J. No. 4306 (Q......
  • Ishaq v. Canada (Minister of Citizenship and Immigration), (2015) 475 F.T.R. 94 (FC)
    • Canada
    • Canada (Federal) Federal Court (Canada)
    • October 16, 2014
    ...Education of Sudbury et al. (1988), 29 O.A.C. 23; 65 O.R.(2d) 641; 52 D.L.R.(4th) 577 (C.A.), refd to. [para. 23]. R. v. N.S. et al. (2010), 269 O.A.C. 306; 102 O.R.(3d) 161; 2010 ONCA 670, affd. [2012] 3 S.C.R. 726; 437 N.R. 344; 297 O.A.C. 200; 2012 SCC 72, refd to. [para. Andrews v. Law ......
  • Ishaq c. Canada (Citoyenneté et Immigration),
    • Canada
    • Federal Court (Canada)
    • February 6, 2015
    ...578, 121 O.R. (3d) 1; Zylberberg v. Sudbury Board of Education, 1988 CanLII 189, 65 O.R. (2d) 641 (C.A.); R. v. N.S., 2010 ONCA 670, 102 O.R. (3d) 161, affd 2012 SCC 72, [2012] 3 S.C.R. 726; Pourkazemi v. Canada (Minister of Citizenship and Immigration), 1998 CanLII 8830, 161 F.T.R. 62 (F.C......
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11 books & journal articles
  • Table of cases
    • Canada
    • Irwin Books Fundamental Justice: Section 7 of the Canadian Charter of Rights and Freedoms. Second Edition
    • June 22, 2019
    ...Pharmaceutical Society, [1992] 2 SCR 606, 74 CCC (3d) 289, 1992 CanLII 72................ 120, 191, 192, 193, 195, 198, 199 R v NS, 2010 ONCA 670 ....................................................................................... 38 R v NS, 2012 SCC 72 ........................................
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    • Irwin Books Balancing Competing Human Rights Claims in a Diverse Society. Institutions, Policy, Principles Part 1
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    ...Rights Claims , supra, note 7, which provides a more detailed discussion of the case law dealing with competing rights. 21 R. v N.S. , 2010 ONCA 670 at para 97. Leave to appeal to the Supreme Court of Canada granted: 2011 Can LII 14361 (SCC). The appeal was heard by the Supreme Court on 8 D......
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    • Irwin Books Fundamental Justice: Section 7 of the Canadian Charter of Rights and Freedoms. Second Edition
    • June 22, 2019
    ...& Roach, above note 2 at 105–8; Hogg, above note 2, ch 37.2(g). 73 Grant v Torstar Corp , 2009 SCC 61 at para 65. 74 Compare R v NS , 2010 ONCA 670. The applicant was a witness in a preliminary inquiry. She challenged the presiding judge’s ruling that she had to remove her niqab in order to......
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    • Canada
    • Irwin Books Criminal Procedure. Fourth Edition
    • June 23, 2020
    ...218, 221, 222, 224 R v Nowazek, 2018 YKCA 12, 366 CCC (3d) 389 ............................................. 289 R v NS, 2010 ONCA 670, aff’d 2012 SCC 72 .............................................. 401, 554 R v Nuttall, 2018 BCCA 479, 368 CCC (3d) 1.............................................
  • Request a trial to view additional results

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