In British Columbia witnesses who are testifying in court are required to choose between swearing a religious oath, or making an affirmation, to tell the truth.
Children under 14 are only asked to promise to tell the truth.
The origin of oaths, to tell the truth, was a belief that divine retribution would visit those who lied under oath.
While witnesses are not told they have the option to swear an oath on something other than a bible, that is permitted.
Alberta recently announced that they are providing eagle feathers for witnesses who wish to swear an oath using those.
In British Columbia courts have permitted a wide range of witness oaths including a Scottish Oath that involves a raised right arm, rather than holding a bible in the right hand, while swearing the oath.
The origin of holding up your right hand seems to have come from Roman law where the penalty for perjury included having your right hand branded.
One of the more elaborate oaths, that was previously used in British Columbia, by some Chinese witnesses, was the Chicken Oath. This involved the witness being handed a piece of paper with the following writing:
Oath made by … witness signs his name … being a true witness, I shall enjoy happiness and my sons and grandsons will prosper forever. If I give false evidence I shall die on the street, Earth will destroy me, and I shall forever suffer in adversity, and all my offspring will be exterminated. In burning this oath, I humbly submit myself to the will of heaven which has brilliant eyes to see.
The following instructions were then provided for the Court Clerk:
The witness having signed his name twice, and a cock (male chicken) having been procured, the court (and jury, where applicable) adjourns to a convenient place outside the building where the full ceremony of administering the oath is performed. A block of wood, an axe of a knife, not less than three punk sticks, a pair of candles and a joss paper being obtained, Chinese candles are stuck in the ground and lighted. The oath is then read out loud by the witness, after which he wraps it in joss paper as used in religious ceremonies. The witness then lays the cock on the block and chops its head off, then sets fire to the oath from the candles and hold it until it is consumed.
The Chicken Oath being administered outside the Nanaimo Courthouse in 1913:
Efforts, in British Columbia, to accommodate differing religious preferences were certainly preferable to earlier English decisions, some of which refused to permit any evidence from “Infidels” on the basis that they did not believe in a God.
Rather than adding more options for different religious oaths, and requiring witnesses to declare their religion, or lack thereof, before testifying it would make more sense to ask all witnesses to affirm or, as is the practice in some places, to “swear or affirm”, without inquiring which option someone is choosing, and without presenting them with a religious text of any kind.
Continuing to permit witnesses to perform different religious ceremonies before giving evidence runs the risk that, particularly juries, might take this choice into consideration when assessing the evidence of a witness.
Also discussed is a British Columbia Supreme Court case that involved a Langley blueberry farm that went into foreclosure: the two brothers who owned it were found to have killed all the blueberry bushes with herbicide before turning it over to the new owners. The judge concluded that despite a save agreement on an “as is where is” basis, the price the new owners paid should be reduced by the cost of replacing the mature blueberry bushes: $2,796,400 plus $150,000 in punitive damages.
Finally, the second application, in two years, by the Victoria and Esquimalt Police Board to have the Victoria and Esquimalt municipalities ordered to provide adequate law enforcement is discussed.
The Police Act requires municipalities with a population of more than 5,000 to maintain law and order in the municipality and to provide a police force with sufficient numbers to “adequately enforce municipal bylaws, the criminal law and the laws of British Columbia.”
Last year the municipalities were ordered to hire additional officers in order to meet this obligation. Again, this year, the municipal councils in Victoria and Esquimalt have rejected the recommendation by the Police Board to hire several officers and, again, an application is being made to direct the municipalities to meet their obligations pursuant to the Police Act.
The incongruency between the failure to meet basic policing obligation while new, optional, municipal programs are undertaken, is discussed.
An automated transcript of the show:
Adam Stirling [00:00:00] Lots to talk about on this show today though, as are there always interesting things. Now, most of us, I would suggest, have ever actually been inside a real Canadian courtroom. We have seen all sorts of courtrooms on television and in media, often American courtrooms, in our courtroom dramas that seem to be so popular. Many of us can imagine putting a hand on the Bible, taking that oath. How does that actually work? And there’s a news story about a recent change in Alberta about how that works. Take us through it.
Michael T. Mulligan [00:00:30] Yeah. That’s right. So, what would happen if you show up in court, is ordinarily there would be a choice, if you’re testifying as a witness, as to whether you wish to swear an oath or to make a solemn affirmation. And if the lawyer who’s calling the witness hasn’t told the court clerk which of those choices the witness might prefer, the court clerk will ask you a confusing question. They will ask you; do you wish to swear an oath on the Bible or make a solemn affirmation to which most people kind of cock their head and say, OK. But it’s a choice. Now, there are a few interesting things bound up in that particular question. First of all, there’s some reference to a Bible or an oath. Now, what just occurred in Alberta, last week, is that in an effort to be more inclusive, they’ve decided to include another option there, which would be to swear an oath on an eagle feather. And it would be for Aboriginal people that don’t want to swear an oath on the Bible and don’t want the affirmation option.
Adam Stirling [00:01:34] Okay.
Michael T. Mulligan [00:01:34] And in order to facilitate that. They’ve supplied 122 eagle feathers to courts all over Alberta. Some will have more than one eagle feather, in case there’s a traffic jam of people wishing to swear on eagle feathers. Now, that particular change caused me to spend a little bit of time looking into the history of these things in British Columbia. What are your choices here? Well, indeed, you have many. British Columbia, in fact, has a long history of permitting alternative oaths for people who have different religious beliefs. And that caused me to look into some of the history of why do we have oaths at all? What’s the purpose of these things? What’s going on with, you know, for example, if you watch on the congressional hearings, impeachment hearings right now, you actually see these people standing up with their right hand held up. What’s going on there? Yeah, because we’re not doing that in courtrooms in British Columbia. And in fact, in British Columbia, if you don’t specify otherwise, you choose the oath option. You’re going to be read something like this. ‘Take the Bible in your right hand. Do you swear the evidence you shall give shall be the truth, the whole truth and nothing but the truth, so help you God?’ Now, that’s not what’s going on if you watch what’s going on in Congress at the moment, you’ve got people holding up their right hand with their palm out. Where did that come from and why aren’t we doing that? Well, the history of that comes from Roman law. And depending on what version of history you read, the penalty for perjury was either cutting off your right hand or branding your right hand as a perjurer.
Adam Stirling [00:03:15] Ah the Roman’s…
Michael T. Mulligan [00:03:15] So if you’re holding up your right hand, you’re either a showing. I’ve still got it and I’ve got no brand on it. Or you’re giving yourself a good reminder of what you might lose should you not tell the truth here. That’s where the right hand is coming from. Now, that’s not quite what’s going on in B.C. We’ve got the holding of the Bible in the right hand, but not necessarily so. You can choose alternative forms of oath in British Columbia. And in fact, we have the Evidence Act that specifies, for example, a person can choose to swear an oath in the Scottish style. And that is also set out, that would be this: ‘Raise your right hand and repeat after me. I swear by almighty God, as I shall answer to God the great day of judgment, that I will speak the truth, the whole truth, and nothing but the truth. So, help me God. Please state your full name. Spell your last name for the record.’ So that’s a little bit more like what’s going on in Congress at the moment.
Adam Stirling [00:04:12] Yes.
Michael T. Mulligan [00:04:12] Now, there are many other choices in British Columbia for a very long time. There have been a wide variety of oaths that people could choose to take the Scottish oath being one of them. There’s another one which I actually like the sound of. Here was the Hindu oath. I thought the Hindu, I thought this was a good one says: ‘Please repeat after me. I solemnly affirm the evidence which I shall give, in this case, shall be true. I will conceal nothing, and no part of my evidence shall be false. Please state your name. Spell your last name for the record.’ Now, another interesting thing is that they don’t tell you in court about your right to choose some different kind of oath or to, in fact, swear an oath on some book other than the Bible. And that’s an interesting thing because they are actually policies in place from different levels of court about what’s to be done if, for example, you wish to swear an oath and some other kind of book in the Provincial Court. If you give the registry two weeks’ notice, they’re supposed to procure the requested religious text for you to swear. On in Supreme Court there’s actually a practice directive saying you got to bring your own, which is an interesting thing. There are also some older, now infrequently used oaths, but I recall my practice, these used to be on the desk book in the Supreme Court. And for example, one of them was the Chicken oath.
[00:05:41] Sorry, the Chicken Cath.
Michael T. Mulligan [00:05:42] The Chicken Oath.
Adam Stirling [00:05:43] Okay.
Michael T. Mulligan [00:05:43] Which is an oath apparently used by some people of Chinese background.
Adam Stirling [00:05:49] Hmm.
Michael T. Mulligan [00:05:49] And this is what that was. There’s a whole process. Is this the witness is handed a piece of paper with the following writing: ‘Oath made by, witness signs his name, being a true witness, I shall enjoy happiness and my sons and grandsons will prosper forever. If I give false evidence, I shall die on the street. Earth will destroy me, and I shall forever suffer in adversity and all of my offspring will be exterminated. In burning this oath, I humbly submit myself to the will of heaven, which his brilliant eyes to see.’ Then this, there is an instruction for what the court is then required to do. The witness having signed his name, twice, and a cock, male chicken having been procured, the court and jury, where applicable, adjourns to a convenient place outside the building where the full ceremony of administering the oath is performed. A block of wood, an ax or a knife, not less than three punk sticks, a pair of candles and joss paper being obtained. Chinese candles are struck in the ground and lighted. The oath is then read out loud by the witness, after which he wraps it in joss paper, as used in religious ceremonies. The witness then lays the cock on the block and chops its head off, then sets fire to the oath from the candles and holds it until it is consumed. And there is a, I thought, fascinating picture from, I think it is 1913.
Adam Stirling [00:07:20] Wow, Look at that.
Michael T. Mulligan [00:07:20] At the Nanaimo courthouse. And the heritage part of it is still there, as you can actually recognize where that picture is taken with the entire court adjourned outside performing this ceremony of cutting off the head of a cock…
Adam Stirling [00:07:34] Was going to say…
Michael T. Mulligan [00:07:34] complete the ceremony.
Adam Stirling [00:07:36] I was going to say, everybody’s wearing their robes and they’ve got the white tabs and everything…
Michael T. Mulligan [00:07:38] Yeah,
Adam Stirling [00:07:38] Outside…
Michael T. Mulligan [00:07:39] You’d bring the jury out. It was a, I think, Nanaimo Mine riot case where witnesses wished to give that evidence.
Adam Stirling [00:07:44] Wow.
Michael T. Mulligan [00:07:45] And there’s a, I thought, really interesting early case from the late 1800s in B.C. where multiple witnesses decided they wished to take the chicken oath. So two cocks had to be obtained and ultimately they were provided by a chain of early grocery stores based on Vancouver Island and the province of British Columbia refused to pay for the two chickens on the basis that it was a private prosecution and therefore not the province’s responsibility to pay for the two chickens that were procured. So, there’s actually a little bit of litigation surrounding who is on the hook for paying for the chickens to administer the Chicken Oath.
Adam Stirling [00:08:24] That’s funny.
Michael T. Mulligan [00:08:25] So my take on all of this, I should say this. There’s also some sort of unhappy origin story to how it is we started using oaths involving the Bible and some of that was referred to just a few years ago in 1993 by the Supreme Court of Canada and some of the unhappy history here and it, I think, explains why there was an effort to be accommodating for everything from eagle feathers to chickens and there’s another Saucer Oath, various things, whatever somebody might prefer. And it’s the Supreme Court of Canada references an early English case from 1744. And it speaks about the issue of whether an oath has to get a grip on the sort of religious conscience of the witness. And the English Court said this: ‘though we have shown the infidel in general cannot be excluded from giving a witness. And though I’m of the opinion that infidels, infidels who believe in God and future reward and punishment in the other world may be witnesses, yet I am is clearly of the opinion that if they do not believe in God, or a future reward and punishment, they ought not to be admitted as witnesses.’ So, there is some early sort of English justification for requiring oaths on Bibles, to prevent other groups from being able to give evidence in court. Obviously not satisfactory.
Adam Stirling [00:09:53] It’s interesting because you can see the reasoning. If one accepts that almighty God can see everyone’s thoughts, everyone’s conduct every instant of their lives and they will pay for that conduct, at judgment day that is relied upon by the court as a deterrent for misleading the court.
Michael T. Mulligan [00:10:09] That’s exactly the history of it. Now, here’s my view of it. My view of it is that we should not be requiring people to make declarations of their religion as a precondition for giving evidence in court. I would view it as, I think, troubling if a jury, for example, was to be giving differential weight to different witnesses’ evidence based on some assessment of, you know, what form of oath did that person take. I don’t really like that Hindu oath. I really didn’t think much for the eagle feather. That person didn’t use a Bible. This person did. So to the extent that any trier of fact, jury member for example, was making some judgement about whether they should believe a witness based on what kind of a ceremony they performed or what kind of a book they held up before they gave their evidence, to my mind is really not very satisfactory. So one of the things you’ll see if you watch those congressional hearings is that the question asked to them is not like the questions, the alternatives we have here, which is the either you can swear an oath on something presumptively a Bible interestingly, or you can choose to make a solemn affirmation or promise to tell the truth without using any religious book, symbol, feather or bird. And to the question they ask their witness is, is to the effect of: ‘do you swear or solemnly affirm that the evidence you shall give shall be the truth, the whole truth and nothing but the truth.’ And the person would hold their hand and say, yes. And to my mind, the advantage of that approach is that it doesn’t require the person to make some particular declaration. They don’t need to say, I’m choosing that Bible over there or I’m preferring this other religious book, or I prefer no religious book at all. It simply asks the question of; do you swear or affirm. The person says, yes, and off we go. And to my mind, that would be a better approach rather than the approach being taken in Alberta, which is to say extend the variety of things that somebody might do as a ceremony and promising to tell the truth. I think we’d be better off either, having all witnesses simply affirm that they’re going to tell the truth and that’s an available option here. It sounds like this: ‘Do you solemnly affirm the evidence you shall give shall be the truth, the whole truth and nothing but the truth? State your name. Spell it for the record.” To my mind, we would either be better off just having every witness affirmed so we don’t have this religious question prior to testimony. Or if there is some belief that somebody would not for some reason want to affirm that they were telling the truth. Ask a question… the have the oath or the affirmation as: ‘do you swear or solemnly affirm the evidence you shall give shall be the truth, the whole truth and nothing but the truth.’ Don’t bring out any books, feathers or other objects. Have the person say yes and get their evidence. And to my mind, that would eliminate both some of the risk posed of judgments based on the religious declaration that might be required.
Adam Stirling [00:13:11] Interesting.
Michael T. Mulligan [00:13:11] And wouldn’t require people to make any particular declaration or have the unfortunate effect of, you know, somebody might say if they didn’t know that they had to make some request in advance if they showed up there, well hold on I don’t want a Bible. I prefer this and that. If we simply do away with it, I think that would be a better approach in the modern reality of the world, not to bring in more and further religious objects, for people to swear on and require people to tell us all what their religious belief or preferences before they give evidence in court.
Adam Stirling [00:13:44] Let’s take a break. Legally speaking with Michael Mulligan continues right after this.
Commercial [00:13:48] COMMERCIAL BREAK.
Adam Stirling [00:17:37] Legally Speaking with Michael Mulligan for Mulligan Defence Lawyers continues on CFAX 1070. Michael, a couple of other interesting stories on the docket today, including owners of a foreclosed blueberry farm. What happened?
Michael T. Mulligan [00:17:49] Yeah, I thought this was a good story. This is out of Langley and the history of it is that a couple of brothers purchased a blueberry farm in Langley. The blueberry farm had mature bushes and it was really quite productive. It sounds like they got about $200,000 worth of blueberries out of the farm every year. Unfortunately for the brothers, they had, it sounds like a substantial mortgage, through farm, the Farm Credit Corporation, which they weren’t able to pay. And they fell behind on the mortgage in 2006. And finally, by 2007, the Farm Credit Corporation had just about enough of all this, and they managed to go to court and get an order that the farm be sold in order to pay off the mortgage. So, the blueberry farm gets listed for sale. An ad is run. The advertisement says this ‘court ordered sale, over 60 acres of top producing blueberries in great Langley location’ on and on it goes. It says property is sold in an as is where is basis. And so, the prospective blueberry farmers make an offer where there’s a foreclosure that’s actually settled in court at the end of the day.
Adam Stirling [00:19:06] Mhhmmm.
Michael T. Mulligan [00:19:07] And the prospective owners go to court on the foreclosure and ultimately, they agreed to buy said blueberry farm for 5.531 million dollars. Well, the original brothers, I don’t think are happy at losing their mature blueberry bushes and sure enough, it’s almost time for harvest, back in July of 2017. So the court order, if the court orders that the sale proceed for that amount of money so that the mortgage can get paid off, but then someone decides to spray roundup over the entire farm, killing all of the blueberry bushes right before the new owners take possession of the farm..
Adam Stirling [00:19:49] Extremely altering the value of the farm because that harvest is worth money, right?
Michael T. Mulligan [00:19:53] Yeah. Not only as a harvest worth money with blueberries they grow and bushes which take a number of years to mature. And if you round up all of your blueberry bushes, not only have you lost all of the fruit, which is about to be harvested, it’s going to take you probably a decade or so before you’re back in business, ready to produce blueberries again. And in fact, the evidence in this case was that the damage caused by the roundup was north of 2.7 million dollars.
Adam Stirling [00:20:18] Wow out of 5, So about half of the price.
Michael T. Mulligan [00:20:20] Yes. That’s right. So, the new owners take the farm. And then, of course, start litigation. Is it soon as they get it? Unlike the week before. And all the blueberries look great, juicy and ready to harvest.
Adam Stirling [00:20:33] They’re all dead.
Michael T. Mulligan [00:20:34] They’re all dead.
Adam Stirling [00:20:34] Oh, wow.
[00:20:34] And now what? So, the brothers, the original owners of the farm deny spraying roundup on it. So, it’s a circumstantial case. They actually don’t give evidence they just denied it. But ultimately, the judge concluded. Well, who else would have done this or some immense volume of roundup sprayed on these things that would have required, you know, hundreds or thousands of gallons of water, tractor activity in all of this? You know what other random person would have snuck on to the blueberry farm a week before the new owners would have got, killing all the bushes. So, the judge concluded, no, the brothers did it. The brothers second defense was, well, look, we’re even if we did it, which we deny, it was still ours at the time. Can’t we just do whatever we want with our blueberry bushes? We’ve decided to you know, even if we did even if we did what we denied doing and rounded up all of our blueberry bushes. Well, what’s the problem? Why should these people get the benefit of that? Well, the judge didn’t have much of that. But then there was an interesting little legal, couple of little legal questions, which were things like, well, look, if you’ve got a contract to purchase some property and some harm befalls the property between the time that you agreed to buy it and the time that you’re to take possession of it, but what are we to do about that? Do you get out of buying the thing altogether? Do you get it? Do you get a price reduction? How are we supposed to handle that? And then this said the interesting wrinkle of, well, you agreed to buy it on an as is where is basis. So. Well.
Adam Stirling [00:22:07] When is on that, as well?
Michael T. Mulligan [00:22:08] I guess I guess you’ve got yourself a bunch of dead blueberry bushes for five point something billion dollars. So, the judge had to work their way through the little legal quagmire created by that fact pattern. And the judge found that in some circumstances, the as is where his provision might well have had purchase. Well, look, you know, you agreed to buy that house and as is where is basis and you know, if just before you bought it, the foundation collapsed. You might do well you got what you got over there. But the judge found that here because of the conclusion that it was the brother owners who did this. The conclusion the judge reached was that the price for the farm ought to be reduced by the amount of damage caused. That 2.769 six million dollars plus another $150,000 in punitive damages on the basis that, look, you engaged in pretty egregious conduct there, doing this the only rationale would be out of spite, I suppose, because really the courts ordered the thing be sold. There’s no upside to you other than, I suppose, causing some harm to the people that were going to get it. So, the upside of all of this is that the farm purchasers will wind up with a 2.7million dollar discount. Well, we’ll all be a little shy of blueberries for the next decade while they get some new bushes going over there. And the takeaway is, if you wind up in foreclosure, don’t burn your house down or spray roundup all over your fields. Just take the money and move on.
Adam Stirling [00:23:45] One can see how the court would be very interested in there being a disincentive in people destroying property that was being foreclosed on and liquidated.
Michael T. Mulligan [00:23:55] Yes.
Adam Stirling [00:23:55] You can’t have peoples burned down houses when they get repossessed. There needs to be a strong deterrent established for that. We’ve got about three minutes left. Never ending police budget issues, again in the news. Your thoughts on this?
Michael T. Mulligan [00:24:06] Sure. There are a few things in what’s going on. There’s a proposal now by the police board that includes a number of things. One of the things which is in the proposal, I think is a pretty positive one and we’ve actually talked about it here in the past. And one of the positive things that they’ve suggested is the idea of having more special constables to deal with issues where you may not need a fully trained and armed police officer. Things like helping with traffic control, serving subpoenas, doing court liaison service, working at the front desk, dealing with public complaints, data entry. These sort of things. Oh, another one here, which I think is a good one. The low risk apprehensions at hospitals. That’s where they need a police officer to sit there…
Adam Stirling [00:24:53] oh yes…
Michael T. Mulligan [00:24:53] sometimes for many hours waiting for intake at a hospital.
Adam Stirling [00:24:55] Ya Mental Health Act provision.
Michael T. Mulligan [00:24:56] All of that I think is a really sensible idea, because if you’re able to have somebody who doesn’t have all of the full training and so on, you might need to do all police functions. You could have a responsible person with training that could perform those functions. That’s a great idea. I must say, it’s very, however, disappointing that the matter is now being sent a second time to the province as a result of the municipal councils in Victoria and Esquimalt, not agreeing to the suggested budget. And that’s going back to the province pursuant to the Police Act. And the Police Act has various provisions that provide the municipality with a population of more than 5,000 people, has a responsibility to provide adequate policing.
Adam Stirling [00:25:41] Yes.
Michael T. Mulligan [00:25:42] To ensure safety and enforce the law and all of this. So the fact that now, for a second time, you’ve got the police board making an application in the province saying, look, the municipality is failing to meet the bare statutory bare minimum of the statutory requirement to ensure that there’s safety and law enforcement going on in the municipalities of Victorian and Esquimalt is just a very disappointing thing. And I must say, watching that as somebody who’s sort of involved in the criminal justice system.
Adam Stirling [00:26:11] Yes.
Michael T. Mulligan [00:26:11] At the same time, you’ve got all kinds of other things, which might be fine things, but certainly aren’t these are the core function of municipal government. You know, if you’ve got on one side of the street bus passes being handed out to kids and on the other side of the street, you’ve got a police department that’s having to go to the province and say, look, you’re not meeting the basic requirements for law enforcement and safety. It strikes me that’s just a completely incongruent state of affairs. You need to meet your minimum safety requirements before you start engaging in other activities, which might be fine activities, but you’ve got to get the basic bases covered before you move on to them. And the fact that we are now in a second year of that sort of an application having to be made, to my mind, is just a very disappointing failure of municipal government to perform its core functions.
Adam Stirling [00:27:04] I find the logic in your arguments to be impeccable and indeed unassailable. So hopefully we find our way to a more reasonable outcome in a state of affairs in this city.
Michael T. Mulligan [00:27:13] Yeah, that would be a good place to be.
Adam Stirling [00:27:15] All right. All right. Michael Mulligan, thank you, as always. Michael Mulligan for Mulligan Defence Lawyers. Quick break. The news is next.
Automatically Transcribed on November 21, 2019 – MULLIGAN DEFENCE LAWYERS