Evidence

• Author: M.H. Ogilvie
• Pages: 197-206

197

CHAP TER 7

EVIDENCE

A. I NTRODUC TION

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, Christians, and Muslims, the re-

ligious obligation to tell the truth i s ultimately found in the Ninth

Commandment,1 and the Anglo-Canadian common law has historic-

ally 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. Orig inally, the common

law required all evidence 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 t he

context of confession to a clergyperson becaus e of the overriding policy

of doing justice in this world by puni shing those who break t he law of

God, which once constituted the core of the criminal law.

While giving evidence under oath and privileged communications

are the evidentiar y issues relati ng to religion most considered by the

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

ileged communication is the recent statutory duty impos ed on clergy to

1 Exodus 20:16: “You shall not bear fa lse witness agai nst your neighbour.” (N.R.S.V.).