Time to Remove Religion from the Oath David M. Tanovich* R. V. J

J. (T.R.) : Time To Remove Religion From the Oath 211

J. (T.R.): Time To Remove Religion From the Oath David M. Tanovich*

R. v. J. (T.R.)1 once again raises the question of whether any inferences can be drawn from how a witness satisfies the moral competency re- quirement to testify and whether it is time to remove religion from the oath. Although there is very little discussion as to what happened at trial in the Court of Appeal’s short endorsement in J. (T.R.), it would appear that the Crown cross-examined the accused on his decision to affirm rather than swear an oath and that there was some evidence that he was a religious person.2 The Crown then invited the judge to reason that “for a religious individual to affirm instead of swearing on the Bible leads to an infer- ence that he was not telling the truth.”3 Based on that cross-examination and Crown’s submissions, the trial judge held: “I do not view the accused’s choice to affirm as raising a significant concern respecting his credibility . . . However it is a factor to be considered in assessing his evidence.”4 The Court of Appeal held that this was an error. With little analysis, Jus- tice Hall simply noted that section 14(2) of the Canada Evidence Act states that evidence under an affirmation has “the same effect as if taken under oath.” He did, however, observe that “there may be factual circum- stances where it could be appropriate for a judge to permit some explora- tion of the issue of the degree to which an oath or affirmation may bind the conscience of a witness . . .”5

*Faculty of Law, University of Windsor. 12013 BCCA 449 (B.C. C.A.), reported above at p. 207 [J. (T.R.)]. 2Ibid. at para. 4. 3Ibid. at para. 5. 4Ibid. at para. 6 (emphasis added). 5Ibid. at para. 4. 212 CRIMINAL REPORTS 6 C.R. (7th)

The issue of adverse inferences has arisen in a number of other cases. In R. v. Wiebe,6 an active member of a congregation chose to affirm rather than swear an oath. Perhaps not surprisingly, during his examination-in- chief, the jury asked the judge what the difference was between the oath and affirmation. The judge instructed the jury that there was no difference and that both could be used in giving evidence. In R. v. K. (A.H.)7 and R. v. Bell,8 adverse inferences were drawn against a Muslim accused and central Crown witness respectively who swore an oath on the Bible instead of the Koran. In K. (A.H.), the accused described himself as a devote Muslim and, in Bell, the witness had sworn on the Koran in his videotaped statement to the police. Finally, in R. v. Daud,9 the defence unsuccessfully tried to argue that the Crown witnesses should not be be- lieved, in part, because they chose to affirm rather than swear on the Koran. This is an area fraught with difficulties. As these cases demonstrate, there does appear to be a natural tendency to want to make assumptions, often negative, about why individuals choose how they commit to telling the truth. It is dangerous, however, to expressly permit adverse inferences to be drawn against the credibility of witnesses based on what method they choose to give evidence (as was the case in K. (A.H.) and Bell). Similarly, by requiring a witness to declare whether they want to swear an oath or affirm, we leave it open (notwithstanding section 14(2)), for jurors to consciously or unconsciously draw negative inferences from a witness who chooses to affirm. There may be any number of reasons why a person may choose to affirm instead of choosing to swear an oath to God.10 For example, the witness may be unfamiliar with the difference between the two methods or may not even understand what affirm means. In addition, different religions may have different views about the oath and about swearing to God in a public place like the courtroom.

6(2006), 205 C.C.C. (3d) 326 (Ont. C.A.). 72011 ONSC 5510 (Ont. S.C.J.) at paras. 27-28 [K. (A.H.)]. 82011 ONSC 1218 (Ont. S.C.J.) at para. 57 [Bell]. 92007 BCPC 68 (B.C. Prov. Ct.). 10And, of course, some witnesses no longer have a choice. Witnesses under the age of 14 can only testify on a promise to tell the truth (see s. 16.1(6) of the Canada Evidence Act). J. (T.R.) : Time To Remove Religion From the Oath 213

Similarly, a Muslim witness may choose to swear on the Bible instead of the Koran because the witness may not want it known that he or she is Muslim because of a concern about stereotyping. Or, they may believe that the Bible is simply a universal courtroom symbol of the oath to God or that it is the standard practice. Alternatively, the witness may be una- ware of the availability of another religious book or practice that could be used. More fundamentally, assumptions about religions may simply be uninformed. So, for example, according to Islamic teaching, Jesus is a Prophet of God. Therefore, some Muslim witnesses may feel their conscience religiously bound by swearing an oath on the Bible.11 There is also the opposite danger that too much weight will be placed on evidence because it is taken under oath. For example, in R. v. Ali,12 the trial judge accepted the evidence of the complainant in large part because she “was one of the most intelligent, sincere and believable witnesses that has ever testified before me. Clutching her copy of the Koran she swore to tell the truth. That oath bound her conscience in a way that came out in Court loud and clear.”13 The role of religion in criminal trials was at issue in the recent Supreme Court decision in R. v. S. (N.)14 concerning whether a Muslim woman should be able to wear her niqab while testifying. In that case, Justice LeBel (Rothstein J. concurring) was essentially of the view that religion had no place in a secular courtroom. The majority rejected that position and pointed to the oath ceremony as an example of respecting religious traditions in our courts.15 Nevertheless, S. (N.) did recognize that respecting religious traditions has its limits and that there would be a justi- fication for a limit where trial fairness or undue disruption was in issue. In my view, given the concerns identified above, trial fairness supports abolishing the religious oath. Doing so would also render moot the need for a secular affirmation thereby removing any need for the witness to choose between the oath or affirmation. At the end of the day, the only meaningful control a court has over whether the oath or affirmation is

11I am indebted to Professor Lisa Dufraimont for this latter point. 122012 SKPC 62 (Sask. Prov. Ct.). 13Ibid. at para. 8. 142012 SCC 72, 98 C.R. (6th) 1 (S.C.C.) [S. (N.)]. 15Ibid. at para. 53. 214 CRIMINAL REPORTS 6 C.R. (7th) respected is a charge of perjury and the possibility of imprisonment. Therefore, the oath ceremony should focus on it being a criminal offence to lie rather than an offence to God or some other higher or spiritual being. Some years ago, Justice Peter Nasmith created a secular oath ceremony in which witnesses were asked the following questions: Do you know that it is a criminal offence to intentionally give false evidence in a judicial proceeding? Do you solemnly promise to tell the truth in this proceeding? If they answered “yes” to both, they were considered to be under oath.16 This is a reasonable approach. There does not appear to be any impedi- ment to judges adopting this or a similar secular oath ceremony in their courtrooms. Section 13 of the Canada Evidence Act does not prescribe any particular form of the oath. And, in R. v. Fletcher,17 it was recog- nized that as society has changed over the years the oath for many has lost its spiritual and religious significance. Those adults to whom the sanc- tity of the oath has lost its religious meaning, none the less have a sense of moral obligation to tell the truth on taking the oath and feel their conscience bound by it. That is the nature of the oath for many adult witnesses today.18

16See Peter Nasmith, “High Time for One Secular Oath” (1990) L Soc Gaz 230. 17(1982), 1 C.C.C. (3d) 370 (Ont. C.A.). 18Ibid. at 377.