Evidence

• Author: M.H. Ogilvie
• Pages: 207-216

207

CHAPTER 7

EVIDENCE

A. INTRODUCTION

Telling the truth, no matter the consequences, is an ideal propounded

by many religions, often backed by the threat of ultimate sanctions to

be determined by God who is presented as a rewarder of truth and an

avenger of falsehood. For Jews and Christians, the religious obligation

to tell the truth is ultimately found in the Ninth Commandment,1 and

the Anglo-Canadian common law has historically ref‌lected both that

injunction and the divine sanction that backs it in a number of rules

of evidence. Two of these have particular bearing on the law relating

to religious institutions. Originally, the common law required all evi-

dence to be given under oath on the assumption that no person would

tempt divine retribution by telling lies. Again, the common law after

the Reformation has historically been reluctant to grant an absolute

privilege to protect communications made within the context of con-

fession to a clergyperson because of the overriding policy of doing jus-

tice in this world by punishing those who break the law of God, which

once constituted the core of the criminal law.

While giving evidence under oath and privileged communications

are the evidentiary issues relating to religion most considered by the

courts, it should be noted that conceptually related to the issue of priv-

ileged communication is the recent statutory duty imposed on clergy

1 Exodus 20:16: “You shall not bear fal se witness again st your neighbour.” (N.R.S.V.).