Evidence

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

207

CHA PTER 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 Christi ans, the religious obligation

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

the Anglo-Canad ian common law has historically ref‌lected both that

injunction and the divine sanct ion 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 ev i-

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

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

the Reformation has hi storically been reluctant to grant an ab solute

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 crimin al law.

While giving ev idence under oath and privileged communications

are the evidentiar y issues relating to rel igion 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.).