The front page story in The Globe and Mail a day or two ago about the option of using eagle feathers in swearing oaths or making affirmation in courts in Alberta, where they have been available for some time now, got me thinking about the process of swearing or affirming before testifying in court more generally.
The rules around swearing oaths and affirming seem simple: the purpose is to bring home to the witness the importance of telling the truth. For some people, it is necessary to do that by swearing on a religious book, for others, who have no religious belief or do not see the need to rely on it will affirm. Originally and perhaps still for some people, an oath suggests that a witness who lies will suffer divine retribution. Regardless, anyone who lies risks being charged with perjury, a somewhat closer possibility. As it turns out, however, it really isn’t that simple. (I am limiting myself to competent adult witnesses in this discussion.)
Tthe Law Reform Commission of Ireland reviews the history of oaths and affirmations in its 1990 Report on Oaths and Affirmations. (I omit the citations.) The original “oaths” were not oaths at all, but the finding of proof through, for example, trial by ordeal, and through self-curses,
which could be used as security for a promise. As divine beings gained significance, the curse ceased to exist as an independent force, though it continued to work magically through the medium of the gods. Eventually, the God of monotheistic religions acted as executor of man’s oath. He was thought to respond to its magic, and it was believed to affect his actions with determinative power. (p.4)
Later, in 4th century AD, Constantine’s requirement that witness statements be sworn was incorporated into the Justinian Code “and from that source it was adapted, primarily through the canon law, to all of of European Christendom” (pp.4-5).
Jumping ahead, over time the oath, which was a form of proof in itself, became associated with the witness’s credibility; indeed, it was thought that a witness who lied would suffer the consequence and if he did not, must have been telling the truth. This evolved to remind the witness that retribution was consequent on falsehood, albeit not immediately. If this had meaning, the oath had to relate to belief: “persons who were deemed to lack the requisite religious belief could not be sworn and were therefore not competent to testify”. Thus only Christians were allowed to testify, and then by the 1600s, “it had first been held that Jews sworn on the old Testament had sufficiently invoked the necessary obligations and sanctions required by the law, since both the old and new Testaments were considered to be the one ‘word of God’.” (p.6)
Although towards the latter part of the 1700s, other non-Christians were allowed to testify. However, atheists and agnostics could not testify and “where it was impractical to swear an oath in accordance with the religious beliefs and practices of a witness, or where the witness, although not precluded from being sworn as a result of his belief, could not indicate any form of oath binding upon his conscience, he could not be sworn at all.” (p.7) Eventually, the idea of divine punishment left behind, the purpose of the oath was to impress upon the witness that telling the truth in court was a higher expectation than might be telling the truth in an everyday context.
The link between belief in God and the oath meant that those who like Quakers or others, who believed swearing an oath was blasphemy could not testify. It was not until the mid-1800s that affirmations became an option through statute. To be able to affirm required satisfying the judge of the genuineness of the conscientious objection to the oath. (p.9) But this did not apply to individuals who did not have a religious belief (p.10). This barrier was removed in 1888.
British Columbia’s Provincial Court website has a nice short history about oaths and affirmations, including less common rituals, such as “the Candle Oath [that] involved a witness placing their right hand over a lighted candle placed on the ledge of the witness box, and saying, ‘I will tell the truth, the whole truth, and nothing but the truth, and if I do not may my soul be extinguished as I quench this flame’ before extinguishing the candle”. (This and other methods are referred to in the Irish law reform report, as well.) Oaths and affirmations are usually less dramatic today, but that aside, we still see some remnants of this history in current evidence statutes and practices.
The Alberta Evidence Act continues to refer to the Bible only and no other religious book:
15(1) An oath may be administered in the form and manner following:
The person taking the oath shall hold the Bible or New Testament, or Old Testament in the case of an adherent of the Jewish religion, in the person’s uplifted hand and the officer administering the oath shall say: “You swear that the evidence you give as touching the matters in question in this action or matter shall be the truth, the whole truth and nothing but the truth. So help you God”, to which the person being sworn shall say “I do” or give his or her assent to it in a manner satisfactory to the court or to the officer administering the oath.
(2) Without in any way limiting or restricting the manner in which an oath may be administered, the oath may be taken or sworn on any one of the 4 Gospels.
However, should the individual wish to affirm instead of swear an oath, they must justify why:
17(1) If, in an action or on an occasion when an oath is required or permitted, a person called as a witness, or required or desiring to give evidence or to make an affidavit or deposition, objects to taking an oath or is objected to as incompetent to take an oath, if the presiding judge or the person qualified to take affidavits or depositions is satisfied that the witness or deponent objects to being sworn
(a) from conscientious scruples,
(b) on the ground of the religious belief of the witness or deponent, or
(c) on the ground that the taking of an oath would have no binding effect on the conscience of the witness or deponent,
the witness or deponent may make an affirmation and declaration instead of taking an oath.
In 2014, the Alberta Law Reform Institute recommended a “free choice” model that permitted a witness to select giving testimony under oath or affirming, without justifying the latter. However, the Alberta statute still requires the justification.
Section 16 of the Ontario Evidence Act also makes specific reference to the Old and New Testament:
Where an oath may be lawfully taken, it may be administered to a person while such person holds in his or her hand a copy of the Old or New Testament without requiring him or her to kiss the same, or, when the person objects to being sworn in this manner or declares that the oath so administered is not binding upon the person’s conscience, then in such manner and form and with such ceremonies as he or she declares to be binding.
Even where the treatment of affirmations is less stark, the oath tends to be given primacy, with affirmation an “alternative”. This is the case under the Canada Evidence Act:
13 Every court and judge, and every person having, by law or consent of parties, authority to hear and receive evidence, has power to administer an oath to every witness who is legally called to give evidence before that court, judge or person.
14 (1) A person may, instead of taking an oath, make the following solemn affirmation:
I solemnly affirm that the evidence to be given by me shall be the truth, the whole truth and nothing but the truth.
(2) Where a person makes a solemn affirmation in accordance with subsection (1), his evidence shall be taken and have the same effect as if taken under oath.
Section 17(1) of the Ontario Evidence Act has the same impact.
Despite the presumption of the oath, there are provisions which tend to disconnect the oath from religious belief and to which the Irish Law Reform Commission referred in its discussion of the history. For example, section 20(3) of the British Columbia Evidence Act provides as follows: “If, in the opinion of the presiding officer, it is not reasonably practicable without inconvenience or delay to administer an oath to a person in the form or manner appropriate to the person’s religious beliefs, the person must, despite any other enactment or law, make a solemn affirmation in the prescribed form.” And section 21 explains,
If a person has taken an oath, the following facts do not affect the validity of that oath:
(a)the person had, at the time, no religious belief;
(b)the form of oath customary for persons of his or her religious belief differs from the oath taken.
While we commonly expect that a witness about to testify will be asked to raise “your right hand” before swearing an oath or affirming, the BC Evidence Act has an interesting provision:
22 If a person to whom an oath is administered desires to swear with uplifted hand, in the form and manner in which an oath is usually administered in Scotland,
(a)the person must be permitted to do so, and
(b)the oath must be administered to the person in that form and manner without further question.
There is a similar provision under section 16 of the Alberta Evidence Act. Again, this provision derives from the Oaths Act of 1888, referred to by the Irish Law Reform Commission (p.10).
In fact, raising the right hand is part of the common understanding of swearing an oath or affirming. (A fairly innocuous practice today, one history claims that “the origin of raising the right hand dates back to Roman times. The penalty for perjury was a brand on the right hand. Thus, if one was taking an oath, one would be required to raise the right hand to show that s/he had not been convicted of perjury in the past”.)
In practice, witnesses are not limited to the books of the Bible and may swear an oath on a book holy to a non-Christian religion. In Nova Scotia, any religious document, such as the Bible or Koran, may be selected for purposes of the witness oath. British Columbia’s VictimsInfo.ca describes clearly the options available to an adult witness promising to tell the truth, showing it is “binding on their conscience” by swearing an oath on a holy book (although if it is not the Bible, it is necessary to ensure that the book will be available by contacting the Crown a week ahead) or affirming.
It should be noted, however, that information related to some jurisdictions (see Community Legal Information Association PEI explaining the situation in Prince Edward Island or Public Legal Education and Information Service of New Brunswick) refer only to the Bible or affirmation.
Against this background, the emergence of the use of eagle feathers over the last seven or eight years has occurred, as have other developments, outside the statutory framework. At the same time, they reveal more clearly than current practice often does how important telling the truth in court is.
Eagle feathers have been used in Ontario courts since at least 2012, initially (it seems) for affirmations, more recently for oaths. A CBCnews report a year ago explained that eagle feathers could be used to swear an oath in provincial court in New Brunswick, and in Nova Scotia and in Ottawa for affirmations.
Eagle feathers appear to be different from other objects used in oaths (or in affirmations, although usually there is no object involved with an affirmation). They have a connection with the Indigenous community in the sense they are gifted by that community or someone in the community, as was the case with the eagle feathers Greg Meekis, community justice programme coordinator at the Odawa Native Friendship Centre, provided to the Ottawa courthouse in 2016:
He provided them after one of his clients asked to swear on an eagle feather, but wasn’t able to last year.
“I was gifted with feathers during the course of my life as well,” he told the network.
“I’ve had these two, and following the teachings that we are just carriers of these sacred items, the keepers, until such time that there’s an opportunity to pass them on, I saw this opportunity to pass these two eagle feathers on to the courthouse. That way they’ll be available to our people when the time comes.”
They are expected to be maintained in a particular way (in a box, for example, which may need to be opened every day).
The use of religious books other than the Bible is, of course, a concrete reminder that Canada is multicultural, a country in which people hold a wide diversity of religious beliefs. Eagle feathers reflect a commitment to reconciliation, but they are different from the Bible, the Koran or any other religious book or from simple affirmation in other ways. They are surrounded by ritual and ceremony. As the story in The Globe and Mail explains, citing the spokesperson for Alberta Justice and Solicitor-General, who is a member of the Sturgeon Lake First Nation, the stem of the feather is beaded and the ones in Alberta, at least, “were each blessed by the beader who beaded the stems” and “individual nations can have their own ceremonies for feaths that will be used in the courts in their area”. Treaty Six Grand Chief Wilton Littlechild said, “‘It means a lot to us from a cultural and spiritual, traditional, perspective”.
Grand Chief Littlechild also generously suggested that non-Indigenous witnesses might want to use the feather. Given the significance of the eagle feather to Indigenous tradition, I wonder about the use of the eagle feather by a non-Indigenous witness, lacking that “cultural and spiritual, traditional, perspective”. I would not like to think that it is akin to swearing an oath, even though the individual does not have a religious belief. There are those for whom it is easier to swear an oath if they are not given the option for an affirmation proactively, as they should be. It should not be “easy” to swear or affirm on an eagle feather, given its importance to the Indigenous community.
There is one last point. In 1985, the U.S. 9th Circuit Court of Appeals held that a witness (Gordon) did not need to swear an oath or affirm after he claimed that doing either was against his beliefs. The court approved the following statement: “I understand that I must accurately state the facts. I agree to testify under penalty of perjury. I understand that if I testify falsely, I may be subject to criminal prosecution.” Gordon argued that an affirmation was the same as an oath, which could be made only to God. Whatever the merits of that position, it does raise the question of whether a similar statement in a secular court should be sufficient to make the need to tell the truth clear, whether given the way in which the statutory provisions have kept one foot in the past, it is time to make the break.
What matters is that witnesses understand significance giving testimony in court has, for which deliberation, attention and purposefulness may mean more than form.