It sounds like heresy to say this, but I think it's time to abolish the legal oath as a tool for encouraging witnesses in court proceedings to tell the truth. Asking someone to swear an oath on a religious book or symbol can be intrusive; in a multicultural society such as Canada's, with a wide variety of religious beliefs, the administration of oaths can be impractical; and their use is certainly inconsistent.
At present, a judge who sits in a federal superior trial court, as I do, witnesses legal oaths used in a wide variety of contexts. When a judge hears legal arguments known as motions, he (I'm using the generic "he") often receives the evidence in written documents known as affidavits. For a document to qualify as an affidavit, the deponent who signs it must swear before a commissioner for oaths (usually a lawyer) that its contents are true; in this case oaths are administered without the use of a Bible or other religious book or symbol. Yet during trials, a judge must make sure that each witness who testifies either takes an oath or affirms to tell the truth -- and when a witness takes an oath, it's customary to require the witness to swear on a Bible, other religious book or symbol. To complicate matters further, a person whose religious or personal scruples prevent him from taking an oath may choose to "affirm" that he is telling the truth -- and here no Bible, religious book, symbol or reference to the Divinity is required.
It is impossible for a rational mind to reconcile these inconsistencies. I suspect that most judges (including this one) are confounded by them. We understandably prefer not to examine them too closely.
But we should. Each religion regards oaths differently, but there seems to be a common belief that a witness who deliberately lies under oath will be met with some kind of divine retribution in the next life. The fear of this punishment supposedly inclines witnesses to tell the truth; the threat of prosecution and punishment in this world for perjury is secondary.
(When a young child is called to give evidence in a court, the judge must examine the child and make sure that he's qualified to take an oath. Until recently that meant the judge had to be satisfied that the child literally stood in fear of such divine retribution; the test used today, fortunately, is somewhat modified).
In any case, this is why centuries ago we first used the oath in legal proceedings, and why it continues to be used today -- although there's no universal consensus about the risk of divine retribution for perjurers.
In my view, there are many reasons why courts should not inquire at all into the religious practices of witnesses who come before them. A violation of the witness's right to religious privacy inevitably occurs merely by a court asking whether the witness wishes to swear or affirm. The witness then becomes obliged to disclose publicly, at least implicitly, whether his religious views will result in his being bound to tell the truth if he takes the oath. If he says that he would be bound to tell the truth, it's then necessary for the court to invade his privacy even more by asking him to state how he wishes to be sworn -- which usually requires the witness to reveal further details of his religion to all present.
And if the witness instead requests the right to affirm, the judge is probably obliged to determine whether or not the witness is entitled to do so (however, most judges avoid engaging in this kind of intrusive exercise). Still, we are left with the absurdity of a judge presiding over a secular court inquiring into the intimate religious beliefs of witnesses as part of the daily routine. It seems self-evident that this practice is offensive and should be stopped.
Besides, there are practical problems. To meet the needs of different witnesses, a court must now keep on hand a wide variety of Bibles and other religious books and symbols, particularly in a multicultural centre such as Toronto. From my own experience, it's rare to find a court properly stocked with a sufficient inventory. Several days ago I saw an Orthodox Jew who had asked to be sworn on the Torah mistakenly being handed a copy of the Koran by a well-meaning but misguided court official who apparently did not appreciate the difference.
The solution advocated by those who would remove the use of oaths in courts of law is a simple one. They propose that all witnesses be required simply to promise to tell the truth, in a ritual similar to what occurs now when a witness affirms. All references to religious beliefs and observances would be omitted from the form of the ritual. Some proponents of reform also suggest that the process should include a warning to the witness that deliberate lying after giving a promise would constitute perjury, a crime punishable by the secular authority.
It's hard to believe that this process wouldn't be at least as effective as the one we now use. And it would eliminate all the confusing and offensive elements that presently exist. Several jurisdictions in the United States and Australia have already made the change. Others are considering similar reforms. It's hard to find a persuasive reason why Canada should not move ahead with them. Ted Matlow is a judge of the Superior Court of Justice in Toronto.