Swearing on a bible

• Bill 31 includes changes to the Alberta Evidence Act would give Albertans a more modern processes for confirming the truth of their testimony in court.
• Proposed changes mostly mirror recommendations that the Alberta Law Reform Institute published in Oaths and Affirmations, Final Report 105.
• Download Oaths and Affirmations, Final Report 105 here.
• Bill 31 receives royal assent December 5, 2024

The Alberta Evidence Act [AEA] currently requires that every witness first be asked to swear a religious oath to tell the truth. Only if a witness does not want to swear an oath, may the witness be allowed to make a secular affirmation, that being a solemn promise to tell the truth without any reference to God. Both an oath and affirmation have the same legal effect, however, the presiding officer administering the procedure must first confirm that the witness’s objection to a religious oath is justified on grounds specified in the AEA. This is known as the object-and-justify model.

In 2014, ALRI recommended that the object-and-justify model be replaced with a free choice model should be enacted so that a witness or deponent can simply choose either to swear an oath or to affirm without any need for objection or justification.

What is the problem?

ALRI found there were practical and legal reasons for replacing the current object-and-justify model.

From a practical perspective, ALRI noted the following:

• Many witnesses prefer to affirm rather than swear.
• The object-and-justify model is not uniformly used. Presiding officers frequently offer witnesses a free choice to swear or affirm at the outset.
• When the object-and-justify model is used, witnesses often appear confused, frustrated or unsettled by the procedure.
• Where a witness objects to taking an oath, the presiding officer may not be comfortable asking people about their beliefs in order to justify administering a secular affirmation.
• Witnesses who object to swearing are usually taken at face value without further inquiry by the presiding officer.

From a legal perspective, the object-and-justify model raises the following concerns:

• Most other Canadian jurisdictions have dropped the object-and-justify model in favour of a free choice.
• The Canada Evidence Act allows a free choice. The availability of a free choice in some instances in Alberta (eg. criminal trials) but not others (eg. civil trials) adds to the confusion.
• In an increasingly pluralistic and secular society, maintaining a hierarchy which gives greater status to a religious oath seems inappropriate.
• Maintaining this hierarchy may infringe equality rights or the right to freedom of conscience and religion guaranteed by the Charter.
• When a law is poorly understood and frequently ignored, it should be reviewed.

What did ALRI recommend?

ALRI ultimately recommended that the AEA should be amended so that a witness can freely choose to swear an oath or to affirm without any need for objection or justification.

The AEA should clearly show that there is complete equality of choice between oaths and affirmations, without presenting one choice as superior or preferable to the other. It should state in the most direct and basic terms possible that oaths and affirmations are equally valid.

ALRI made other recommendations to improve the Alberta Evidence Act. See the full report, Oaths and Affirmations, Final Report 105 here.