The law of evidence in Canada is quite open on this subject. The purpose of swearing or affirming is to impress upon declarants the onus of being truthful, and declarants bind themselves to that obligation by whatever method is meaningful to each of them, individually.
One of the more famous cases is R. v. Ah Wooey (1902) 8 C.C.C. 25 (B.C.S.C.)
Quote:
ON a Chinese witness, Chong Fon Fi, not a Christian, being called for the Crown, it was proposed to swear him through the interpreter in the manner generally adopted in the Courts of this Province, i.e., by writing his name on a piece of paper and burning it, at the same time declaring that he would tell the truth: the consumption of the paper by fire signifying the fate of his soul if he should fail to do so.
Wilson [the Crown prosecutor]: I object to this form of oath and am instructed that there is another form of greater solemnity and which will be more binding on the witness' conscience; it is commonly called in this Province the Chicken oath, and I ask in a case of this gravity that it be administered.
Whereupon His Lordship interrogated the local interpreter, Charlie Loo Fook, and also the official interpreter from Victoria, Yip Wing, who was present in Court assisting the Crown, and instructed them to examine the witness on the point, which being done, they informed the Court that the oath which is known to the Chinese in British Columbia (almost all of whom come from the Province of Canton) as the King's oath, or, as the white people call it, the Chicken oath, was the more binding.
...
A discussion arising on the form of said oath, it was finally settled by the interpreters, and written on yellow Chinese paper as follows:
Being a true witness, I shall enjoy happiness and my sons and grandsons will prosper forever. If I falsely accuse (prisoner) I shall die on the street, Heaven will punish me, earth will destroy me, I shall forever suffer adversity and all my offspring be exterminated. In burning this oath I humbly submit myself to the will of Heaven which has brilliant eyes to see. The 27th year of the reign of Kwang Su, the 16th day, the 9th Moon.
The witness having signed his name twice, and a cock having been procured, the Court and jury adjourned to a convenient place outside the building where the full ceremony of administering the oath was performed, as follows: by a block of wood, punk sticks, not less than three, and a pair of Chinese candles were stuck in the ground and lighted. The oath was then read out loud by the witness, after which he wrapped it in Joss-paper as used in religious ceremonies, then laid the cock on the block and chopped its head off, and then set fire to the oath from the candles and held it until it was consumed.
That's not the end of it. In the law report, the editor added a footnote explaining that a saucer can be used too whereupon breaking the saucer, the witness is told, in grave tone:
Quote:
You shall tell the truth.... The saucer is cracked, and if you do not tell the truth, your soul will be cracked like the saucer.
It is an invariable practice in Canada that witnesses are asked if the they choose to swear or to affirm before testifying. At Canadian citizenship ceremonies, new citizens are told that if they choose to take the oath on scripture, they are free to bring their own.
Affidavits are now only used in court proceedings. For all other purposes a, "Statutory Declaration" is used. It is provided for by the
Canada Evidence Act. The declaration ends with the form of words, "I make this solemn declaration, conscientiously believing it to be true and knowing that it is of the same force and effect as if made under oath." Any person authorized to administer an oath (a solicitor, a notary, a judge or a commissioner) is also qualified to administer a statutory declaration.
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--James
16 Aug 2011, 6:52 pm
