I have been an adjudicator for nearly ten years. This experience has given rise to much food for thought. Training a diverse range of adjudicators from a variety of tribunals has caused me to reflect on why we do the things we do in adjudication. While core processes are similar across tribunals, there is a great diversity in approaches. For me, the adjudicative processes need to meet two, primary objectives: fairness and efficiency. These columns will highlight the diversity in approach and look at best practices in meeting these twin objectives.
Testimony is at the centre of most oral hearings. In most hearings, this testimony is provided under oath or affirmation. Tribunals are masters of their own proceedings and can accept testimony not under oath or affirmation (see Statutory Powers Procedure Act, RSO 1990, c S.22, s. 15, for example). However, as a practice, most quasi-judicial hearings will require that evidence be given under oath or affirmation.
Over the years I have observed that witnesses often do not know the difference between swearing and affirming and seem confused when asked which they would like to do. Part of that confusion is the fault of counsel or representatives who have not prepared their witness for that important second question (the first question, “can you spell your name, for the record?” is a simple one).The other part of the confusion is ignorance of the purpose and history of oath-taking.
Oath-taking has a long history in judicial proceedings, going back at least as far as 400 C.E. (For a good history of oaths see the Queensland Law Reform Commission Report on the Oaths Act (1989, chapters 9-11). The primary purpose of oath-taking has been to bind the conscience of the witness to tell the truth. In recent times, the ability of an oath to ensure truthfulness has been questioned by many commentators. The Supreme Court in R. v. B. (K.G.),  1 SCR 740 cited a quote by Lee Stuesser as representative of current thinking: “the unfortunate reality in our modern society is that the power of an oath must be discounted as a means of ensuring reliability for a statement.” The Supreme Court also quoted a less diplomatic New Zealand critic (D.F. Dugdale): the oath is “no more than a lingering relic of primordial superstition” and “primitive mumbo-jumbo”.
The incentive to tell the truth today for many is less the fear of the wrath of their god than the temporal consequences of lying under oath: the penalty for perjury. Ambrose Bierce in his Devil’s Dictionary defined “oath” succinctly: “n.
In law, a solemn appeal to the Deity, made binding upon the conscience by a penalty for perjury.”
In R. v Nitsiza, 2001 NWTSC 34, the judge captured the role of oaths today:
The historic rationale was that the fear of divine retribution would focus one’s mind and heart on telling the truth. Today, in our secular, modern multi-cultural Canadian society, the fear of divine retribution may seem a quaint anachronism, if not a complete irrelevancy. The law, however, still recognizes the importance of an oath even if it is not directly tied to a belief in spiritual retribution. Even in the absence of some religious significance, the solemnity of taking an oath still increases the witness perception of the importance of telling the truth.
What form must the oath take? The form of oath is largely left to the witness, in most jurisdictions. The Ontario Evidence Act, RSO 1990, c E.23, states that an oath may be administered while the person holds either the Old or New Testament in his or her hand, “without requiring him or her to kiss the same”: If a witness objects to being sworn in this way, or declares that the oath given in this way “is not binding upon the person’s conscience” then the oath is to be given in a way that the witness considers to be binding. This provision gives prominence to the Old and New Testaments, but allows the swearing of an oath under other faiths.
In British Columbia, the ability of the witness to determine how the oath is to be given is limited to what the adjudicator considers to be practicable (Evidence Act, RSBC 1996, c. 124, section 20). If the adjudicator is of the opinion that administering an oath in accordance with the witness’ religious beliefs would result in “inconvenience or delay”, the witness is required to make a solemn affirmation. I have not unraveled the history of this provision, although similar provisions exist in England and other jurisdictions. However, allowing the witness to decide what is binding on his or her conscience did result in a B.C. court in 1902 administering what it called the Chinese “chicken oath”: the decapitation of a live chicken followed by the incineration of the written oath (Rex v Ah Woocy, 9 B.C. 569). Other historical oath-taking has involved the smashing of plates and the snuffing out of candles. Less dramatic reasons for affirming rather than swearing include no ready access to the appropriate holy book.
If a person without religious belief takes an oath, is that oath binding? British Columbia has that covered: an oath is valid even if the person taking it did not have a religious belief at the time (section 21).
Affirmation was traditionally treated as an exception to the general requirement of an oath. In England, the ability of courts to accept testimony by affirmation arose out of the religious beliefs of Quakers and other Christian sects that prohibited oath-taking. This tradition of an affirmation as an exception is reflected in current statutory language. For example, the Canada Evidence Act states that the evidence of a person who affirms shall have the same effect “as if” taken under oath.
It is only recently that statutes have given equal preference to oaths and affirmations. In Ontario, prior to 2009, a witness was only allowed to affirm when he or she objected to being sworn “from conscientious scruples”, because of religious belief, or because an oath would have no binding effect on the person’s conscience. Federally, similar language existed until 1994.
Proposals to eliminate oaths and substitute a promise to tell the truth have been raised periodically. One of the earliest critics was Jeremy Bentham who, in 1817, wrote “Swear Not At All” .The Law Reform Commission of Canada recommended the abolition of the oath in its 1975 Report on Evidence (alas, not available online) and the Ontario Law Reform Commission made a similar recommendation in 1976.
Some Tribunals, such as the Human Rights Tribunal of Ontario, have made affirmation the default approach and ask witnesses to promise to tell the truth and to acknowledge that intentionally breaking that promise would be a breach of the law. Oaths can still be used at the witness’ request.
Swearing or affirming witnesses is part of the ritual of a hearing. It reminds witnesses of the importance of being honest. It is a signal to the witness and the participants at the hearing that the spotlight is now on the witness. Whether a witness is motivated to be honest because of a fear of divine retribution, a fear of punishment for perjury, or simply because it is the right thing to do, is really no one’s business. What is important is honesty. A fair hearing is one where all speak honestly. It is the adjudicator who must then determine the truth, the whole truth and nothing but the truth, to the best of his or her abilities.