OATHS AND AFFIRMATIONS FINAL REPORT 105 JULY 2014 ISSN 0317-1604 ISBN 978-1-896078-60-1 ALRI claims copyright © in this work. ALRI encourages the availability, dissemination and exchange of public information. You may copy, distribute, display, download and otherwise freely deal with this work on the following conditions: (1) You must acknowledge the source of this work, (2) You may not modify this work, and (3) You must not make commercial use of this work without the prior written permission of ALRI. Table of Contents Alberta Law Reform Institute ................................................................ i Acknowledgments ................................................................................ iii Summary ............................................................................................... v Recommendations .............................................................................. vii Table of Abbreviations.......................................................................... ix CHAPTER 1 Introduction ...................................................................... 1 A. Oaths and Affirmations in Alberta............................................... 1 1. The Alberta Evidence Act ...................................................... 1 2. The Oaths of Office Act ......................................................... 2 B. ALRI’s Previous Work in This Area .............................................. 3 C. The Issue for Reform ................................................................... 4 D. Framework of the Project ............................................................ 5 E. Outline of this Report .................................................................. 6 CHAPTER 2 Law and Reform in Other Jurisdictions ............................. 7 A. Canada ......................................................................................... 7 B. United Kingdom, Australia and New Zealand ............................ 8 C. United States ............................................................................. 10 CHAPTER 3 Options for Reform ......................................................... 11 A. Is Reform Needed? .................................................................... 11 B. What Should Replace the Object-and-Justify Procedure? ....... 12 C. Should the Oath be Abolished or Retained? ............................ 14 1. Privacy .................................................................................. 14 2. Prejudice .............................................................................. 15 3. Promoting truthfulness ....................................................... 16 4. Redundancy ......................................................................... 18 5. Role of secularism............................................................... 18 6. Ease of administration ........................................................ 19 D. Recommendations for Reform .................................................. 20 CHAPTER 4 Implementing a Free Choice Model ................................ 23 A. Reforming the Alberta Evidence Act......................................... 23 1. Expressing the free choice provision ................................. 23 2. Form of the oath and affirmation ....................................... 24 a. Mandatory form? .......................................................... 24 b. Non-mandatory form? .................................................. 26 3. Should there be any statutory exceptions to the free choice model? ..................................................................... 29 4. Sections 19 and 20 ............................................................ 30 B. Reforming the Oaths of Office Act ............................................ 31 C. Conclusion .................................................................................. 32 APPENDIX A Alberta Evidence Act, RSA 2000, c A-18 (excerpts) ..... 35 APPENDIX B Oaths of Office Act, RSA 2000, c O-1 .......................... 39 APPENDIX C Selected Free Choice Statutes from Other Sources .... 41 i Alberta Law Reform Institute The Alberta Law Reform Institute (ALRI) was established on November 15, 1967 by the Government of Alberta, the University of Alberta and the Law Society of Alberta for the purposes, among others, of conducting legal research and recommending reforms in the law. Funding for ALRI’s operations is provided by the Government of Alberta, the University of Alberta and the Alberta Law Foundation. ALRI Board Members are: JS Peacock QC (Chair) Hon Judge CD Gardner ND Bankes WH Hurlburt QC PL Bryden AL Kirker QC AS de Villars QC PJM Lown QC (Director) MT Duckett QC Hon Justice AD Macleod JT Eamon QC ND Steed QC ALRI’s legal staff consists of: PJM Lown QC (Director) C Hunter Loewen S Petersson G Tremblay-McCaig DW Hathaway WH Hurlburt QC (Consultant) ALRI’s administrative staff are: C Burgess I Hobin B Chung J Koziar ALRI reports are available to view or download from our website at: www.alri.ualberta.ca The preferred method of contact for the Alberta Law Reform Institute is email at: [email protected] 402 Law Centre University of Alberta Edmonton AB T6G 2H5 Phone: (780) 492-5291 Fax: (780) 492-1790 Twitter: @ablawreform iii Acknowledgments The main legal research and analysis for this project were conducted by Debra Hathaway, Counsel, who also wrote the report. Other legal research was contributed by Karen McDougall, Consultant and Shannon Brochu, Counsel. Student assistance was provided by Kathryn Griffin. Ilze Hobin prepared the report for publication. The electronic survey of the judiciary and court clerks of the Court of Queen’s Bench and Provincial Court of Alberta and of the legal profession was jointly written by Debra Hathaway, Counsel, Sandra Petersson, Research Manager and Peter Lown QC, Director. Barry Chung provided the technological support needed for the creation, distribution and data analysis of the electronic survey. For their generous assistance in facilitating the distribution of our electronic survey, ALRI would like to extend special thanks to the Chief Justice of the Court of Queen’s Bench, the Chief Judge of the Provincial Court of Alberta, Alberta Justice Court Services and the Canadian Bar Association Alberta Branch. ALRI is grateful as well to all the justices, judges, court clerks and members of the legal profession who took the time to respond to the survey, providing us with the benefit of their experience and opinions. This valuable feedback greatly aided ALRI in assessing the need for reform in Alberta. v Summary In our legal system, a witness or a deponent of an affidavit must promise to tell the truth before giving evidence. The Alberta Evidence Act (AEA) makes swearing a religious oath the automatic requirement of first resort. Every witness or deponent is asked to swear. Only if someone personally takes the initiative to actively object to swearing an oath may that person possibly make a secular affirmation instead. But the judge or official administering the procedure must first make an inquiry and be satisfied that the objection to swearing an oath is justified on certain specified grounds. Historically, this “object-and-justify” model was the standard statutory approach used by Canadian provinces and territories, American and Australian states, and the United Kingdom and New Zealand. Today, however, the majority of those jurisdictions have discontinued this approach and now largely use the “free choice” model instead. In the free choice model, a witness or deponent is simply asked by the judge or official administering the procedure whether they want to swear an oath or affirm. There are no preconditions. People do not need to object to taking an oath first and do not need to justify which choice is made. Both options are treated equally. The Alberta Law Reform Institute (ALRI) recommends that the AEA be amended to adopt the free choice model as well. There are some indications that the current object-and-justify model may cause a certain level of difficulty, stress or confusion both for those who administer it and those who swear or affirm. As well, it is not good for Alberta to be so legally out of step with other jurisdictions on this matter. Society has changed and in our increasingly pluralistic and secular society, it seems inappropriate to maintain a legal hierarchy which gives greater status to swearing than affirming. Such a legal hierarchy may also infringe equality rights or the right to freedom of conscience and religion guaranteed by the Charter. Before recommending the free choice model, ALRI considered whether swearing a religious oath should be abolished in our jurisdiction in favour of requiring a witness or deponent to make a secular affirmation only. The Report explores both sides of this issue in the context of concerns about privacy, prejudice, redundancy, the role of secularism, ease of administration and promoting truthfulness. ALRI sees merit in both sides of the debate but one consideration stands out above all others. Canada is a multicultural country which bases its social policy on accommodating diversity in many areas. vi Such respect for diversity does not weaken our institutions or laws but on the contrary, strengthens both immeasurably. If for no other reason than this, swearing a religious oath should remain an option in court-related matters for witnesses and deponents who want to do so when promising to tell the truth. ALRI makes various proposals