Alberta Law Reform Institute Final Report on Oaths to Tell the Truth

The Alberta Law Reform Institute has published a report that recommends changes to the Alberta Evidence Act that deal with oaths that witnesses must make to tell the truth before giving evidence:

"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."

The report looked at practices in other Canadian jurisdictions, the United States, the UK, Australia and New Zealand.