Legally Speaking with Michael Mulligan
Legally Speaking with Michael Mulligan
Bible, Chicken, or Dog? The Bizarre World of Courtroom Oaths
The legal landscape in Canada continues to evolve with significant implications for sexual assault cases, courtroom procedures, and sentencing guidelines.
A groundbreaking Supreme Court of Canada decision has overturned a British Columbia sexual assault conviction in a case where prosecutors introduced evidence about the complainant's sexual inexperience without proper screening. The Court established that "sexual inactivity evidence" – including statements about virginity or lack of sexual interest – must face the same strict admissibility standards as evidence about past sexual activity. This landmark ruling recognizes that just as past consent doesn't imply present consent, past abstinence doesn't imply present non-consent. The decision extends protections against "twin myth reasoning" to both sides of the courtroom, requiring voir dire hearings whenever either Crown or defence wishes to introduce evidence about sexual history or the lack thereof.
Meanwhile, the BC Supreme Court has issued a fascinating new practice direction on witness oaths and affirmations. While the Bible remains available in courtrooms, witnesses wishing to swear upon other religious or cultural items must now bring their own. The directive specifically addresses concerns about ceremonial practices that might compromise courtroom "dignity, decorum and/or safety" – a provision likely influenced by historical oath ceremonies involving chicken beheadings, candle-burning rituals, saucer-smashing, and other culturally-specific practices. This raises profound questions about the continued relevance of religious declarations in modern court proceedings and whether simply affirming to tell the truth might better serve justice.
The courts also clarified the binding nature of joint submissions in a manslaughter case involving a man whose push led to his girlfriend's accidental fatal fall from a cliff. The BC Court of Appeal emphasized that judges cannot "tinker" with sentencing agreements between prosecution and defence unless they would "bring the administration of justice into disrepute." This high threshold protects the plea bargaining system that keeps our courts functioning. These cases collectively demonstrate how Canadian courts continue to balance procedural fairness, cultural sensitivity, and practical administration of justice in an evolving society. Subscribe to hear more analysis of pivotal legal developments that shape our justice system and reflect our changing social values.
Follow this link for a transcript of the show and links to the cases discussed.
It's time for our regular segment, joined as always by Barrister and Solicitor with Mulligan Defence Lawyers. Michael Mulligan, it's Legally Speaking on CFAX 1070. Afternoon, michael, how are we doing?
Michael Mulligan:Hey, good afternoon. I'm doing great. Always good to be here.
Adam Stirling:Some interesting items on the agenda this week. I'm reading number one. It says the Supreme Court of Canada overturns a BC sexual assault conviction.
Michael Mulligan:It says, due to the Crown leading evidence that the complainants does, that say virginity. That's exactly right. That's exactly what it says and it's the language that the Supreme Court of Canada used was sexual inactivity evidence. Now there's some interesting background to all of this. For some time in Canada we've had some provisions that limit the evidence that can be led in sexual assault cases, and those rules were designed. They've changed a bit over the years, but they've been designed to prevent what's been referred to as twin myth reasoning, and the rules are generally applied to the defense. No-transcript. Somebody might have consented to other activity doesn't mean you've consented to the particular activity that's being dealt with, so that's viewed as a myth and prohibited. And then the other myth that the rules intended to deal with is a myth that if somebody is promiscuous they are less worthy of belief. Now, I'm not sure where that's getting with anyone at 2025, but that's the other part of the twin myth reasoning those rules are intended to prevent and what they mean is that if the defense wants to lead evidence about some past activity that the complainant has engaged in, there has to be what's called a voir dire, like a hearing before the judge hearing the case to decide whether that's going to be permitted or not. There are some circumstances where it might be relevant and permitted, but not to make those arguments that you're more likely to have consented to this because you consented to something else to the extent that makes any sense to anyone anyways or the argument that you're promiscuous, therefore you shouldn't be believed. Well, that's been around for some time and, interestingly, it's caused some challenges in terms of the time it's taken for trials to complete because it requires this two-stage hearing or voir dire, prior to that kind of evidence being allowed or not allowed. And sometimes even those kind of things occur unexpectedly during a trial, which causes trials to be adjourned and take longer. And that's been a challenge.
Michael Mulligan:And that was the context in which the Supreme Court of Canada was dealing with this decision that they just came out with, which was the opposite of that and it's a BC case and it was a sexual assault allegation. It was two people who met, I think, at a motorcycle dealership and then had a series of social media exchanges for months and then eventually got together at the apartment of the accused. The complainant alleged that she was sexually assaulted and the accused said no, it was consensual, was consensual. And in that context the Crown not the defense led a whole bunch of evidence from these social media posts or messages back and forth between these two people, and those messages included messages from the complainant saying that she was a virgin, that she was not interested in any sexual activity and not interested in sexual activity at least at some point with the accused. And the judge allowed all of that evidence to go in without having one of those board years to decide if it was allowed or not. Both people testified, the judge relied upon those messages in finding that the accused was guilty, and so that's the fact pattern.
Michael Mulligan:They got appealed first to the BC Court of Appeal and then just recently to the Supreme Court of Canada, and the Supreme Court of Canada concluded that what the Crown did in that case was prohibited, and they referred to that twin myth reasoning we just talked about and it found that the same applies in the reverse for the Crown. And here the Crown was trying to lead this evidence about the complainant saying she had not previously engaged in sexual activity, to argue that it's less likely she consented to the sexual activity in question, and the Supreme Court of Canada said well, that's not permitted, that's presumptively inadmissible, on the same reasoning that just because somebody might have consented to other sexual activity in the past doesn't mean they consented to the subject matter that's being dealt with. The flip side of that is true Just because somebody hadn't consented to activity in the past with other people or in other circumstances does not mean they didn't consent to the activity in question in the case being tried. And so the Supreme Court of Canada found that was not permissible and that where the Crown wants to try to lead evidence of sexual inactivity, a judge would need to have one of these two-stage hearings. First of all to ask in the first part of this first stage of it is it even possible this evidence could be admitted? Because it can never be admitted for one of those myths Like the Crown could never get away with saying we want to lead evidence of the person's lack of interest in sexual activities to suggest either they're less likely to have consented or that they're more worthy of belief. Those don't fly.
Michael Mulligan:And if there's to be some other argument by the Crown about how the inactivity or professed sexual inactivity is relevant to the particular case, the judge needs to conduct one of those voir dire or hearings, just like they would need to conduct if the defense was trying to lead the opposite, saying the person is unbelievable or more likely to have consented, and so that's now clear in the law from the Supreme Court of Canada. The Supreme Court of Canada overturned the conviction of this case because the judge did in fact rely upon those things in finding that the in disbelieving the accused and convicting him, and so there'll be a new trial, and so it's an interesting case, I thought, both because it deals with that concept of that twin myth reasoning that those need for those other hearings and the fact that they're now going to be applied in cases where the Crown wants to leave some kind of evidence like that. And one of the worries here and the Supreme Court of Canada referred to it because it was part of the argument here, but whether this should be necessary or not is that this will lead to further delays in trials of this kind where, for example, the Crown decides they want to do that sort of thing at the last minute. It may mean that trials get adjourned and in some cases, cases we've seen have been stayed as a result of taking too long, and so that's one of the worries.
Michael Mulligan:One of the other interesting things is that in a case where the defense wants to lead that kind of evidence right about previous activity, the complainant is entitled to have their own lawyer show up in court and argue about it, because sometimes they have a different position on the Crown right? The Crown might say in some case, yeah, this evidence is perfectly reasonable and it should be admitted, but maybe the complainant wants to take a different position. That leads to even further delay because then you've got to get, you've got to inject a third lawyer into the process in order to have one of the hearings. Interestingly, the Supreme Court of Canada said usually that's not going to be an element of this. Where the Crown's trying to evidence of sexual inactivity, a judge will have some discretion, but generally they aren't going to inject a third lawyer into it on behalf of the complainant.
Michael Mulligan:The submissions about trying to get that kind of evidence in would be made by the Crown. So I guess you could have a really bizarre circumstance where you might have the Crown trying to get sexual inactivity evidence admitted where the complainant doesn't want it but doesn't have counsel to oppose it. So anyways, that's the latest from the Supreme Court of Canada. Plainly, everyone's very sensitive about these things. They're really sensitive and important cases. But it's going to mean there's going to be screening on both sides if anyone wants to try to get into past sexual activity or the absence of sexual activity. So that's the latest from the Supreme Court of Canada on more deers in sexual assault cases.
Adam Stirling:All right, we'll take a quick break. Legally speaking, we'll continue right after this. Legally speaking continues on CFAX 1070. Whoops, I hit the wrong button because I fell short of the phone. I think Michael Mulligan from Mulligan and Defense Lawyers is on this slide. Sorry about that, michael. I hit a different phone line today and good news, it still worked. Where were we? It says up next year. It says a new BC Supreme Court practice direction. What's a practice direction?
Michael Mulligan:That's a great question. So the way it works is for a set of administrative decisions about how the court is to run. Each of the courts in the province like the provincial courts, supreme Court, court of Appeal, the chief judge or justice as the case might be can issue these things that are practice directions, that are sort of rules about how the sort of procedure of court should operate, rather than a particular decision in a particular case, and so we just had one of those it's an interesting one out of the BC Supreme Court and the practice directions title is Witness, oaths and Affirmations. Now the first part about that. It has three rules that are set out here. One before a witness is called to testify, the party or council must advise the clerk whether the witness wishes to swear an oath or affirm. Now, that's interesting. That used to be the case For a period of time over COVID.
Michael Mulligan:We stopped asking witnesses if they wanted to swear an oath or affirm for fear they would get COVID from the Bible. That's what. Back in the early days we were wiping down our groceries with alcohol and so they stopped that. They just said everyone's going to affirm. Because we don't know how this is getting transmitted. We don't want people picking up Bibles, so they actually took the Bibles out of the courtrooms. Now we're back, I should say. In that regard, if it were for me to decide, I would just have everyone affirm Frankly, why do we need a religious declaration? Is that really getting a grip on somebody's? You know, are people going to be telling me the truth more frequently for fear that their soul is going to be damned if they don't? I don't know if that's getting us too far in 2025, but we're back Now.
Michael Mulligan:Another interesting thing rule two. Now another interesting thing. Rule two if the witness wishes to swear an oath using a religious or cultural item other than the Bible, it is the responsibility of the party calling the witness or their counsel to make arrangements for the appropriate item to be available, so they're not going to have a selection of religious books or objects for people to swear on. You've got to bring your own if it's anything other than the Bible. That's an interesting one to think about. Should we have that right, or should we have this at all? And if we are having it, should there be one option there? That's interesting. That's rule two.
Michael Mulligan:Now, there's a long history to these things, and there's a long history and this will come to rule three in a moment. Here there's a long history of different oaths being taken by different groups for different reasons. One of the ones there are a whole series of them. They actually were set out until very recently in a desk book that all the clerk said. They were all listed. You look them up. They gave them instructions on how to do it.
Michael Mulligan:One of those oaths which was apparently used with some frequency was what's called the chicken oath the chicken oath and the chicken oath, and the desk book provided instructions about how that was to work if somebody chose to take the chicken oath. When they asked to take the chicken oath, it specified that the court clerk was required to procure a cock like a male chicken, required to procure a cock like a male chicken. The court proceedings were to be adjourned to outside the courthouse and there would also be a knife and a block of wood and the witness would cut the head off the chicken and say some things about how they were going to tell the truth or they'd be killed like the chicken and one of the backgrounders for this rule. There's a picture up in Nanaimo from 1914 of the whole court standing outside while somebody cuts the head off a chicken. Now that comes to the issue of providing the item. There's actually a Vancouver Island case indeed from 1895, where there was a bill submitted to the government for several chickens and a knife as a result of witnesses wanting to testify with they're testifying with the chicken oath. They thought government should pay for the chickens, in that case the BC government. They refused to pay for the chickens and the rationale was because they were being used by the plaintiffs in a case rather than the defense. So the fact that you've got to bring your own is actually to the subject of some litigation, at least in that context.
Michael Mulligan:There are a whole series of other types of oaths that were in the book and were used, and they include things like there's one called the candle oath, where a witness would hold their hand over a lit candle while swearing the oath and then extinguish the flame, I guess, with their hands. There's a saucer oath where you'd smash the saucer and say that your soul shall be broken like the saucer if you lie. There's a paper oath where you'd swear to write your name on a piece of paper and light it on fire. The most bizarre list is here, although this was used in some of the colonies. I don't know if we had a BC history of it where there was one group, cultural group, who would bite the skin from a live dog and then say I bite this dog so I may be eaten if I lie, just imagine that. So there's a long history to it.
Michael Mulligan:That may explain rule three in the practice directive. Rule three in the event of any concern that a religious or cultural item, be it a plate, dog or chicken, I guess a witness intends to use, is not compatible with the dignity, decorum and or safety of the court proceedings, the court clerk or sheriff will notify the presiding judge, associate judge or registrar and seek directions. Signed Chief Justice Ron Scowrod. So that's the third rule, and I don't know what prompted that right now, because this is a brand new practice directive, but something did. And so if somebody purports to use a chicken or a candle or a saucer or a live dog, for heaven's sakes, they've specified in this practice direction that the court clerk, rather than just going out and procuring the caulk and the knife, is now going to have to notify the judge, associate judge or registrar and get direction. It doesn't say what direction they shall give or what criteria they ought to apply, but it does specify that they're going to have to get direction. It also specifies that the party wanting to do one of these various things is going to have to go get the object or the book.
Michael Mulligan:And so I guess, again in this whole context, perhaps the solution would be to just have everyone affirm to tell the truth, and that way we can start with witnesses not having to make some, you know, religious declaration. And really, is it appropriate? If there's some greater weight given to somebody who's making a religious declaration as opposed to an affirmation, why is that appropriate, you know? Should there be some kind of judgment call made or some greater or less degree of reliability placed on a witness because they've chosen to use a Bible or a different book? Why are we doing this? But anyways, there we are. It seems to me we could have, perhaps quite conveniently, just stuck with the state of affairs that we had as a result of the you know misguided conclusions about how COVID spread to get rid of the Bible, and just stuck with every single person getting up there and affirming, rather than worrying about chickens and candles and live dogs and who's got to get the book and whether we should only have the Bible or not. But there it is.
Michael Mulligan:And I should say as well you know, some of this may come as recently as 93, the Supreme Court of Canada spoke about well, it still thinks they still view it as a compelling reasons to prefer statements made with these sort of with oaths. I don't know right. I mean, I guess you ask yourself if you're listening, you're on a jury and you're listening to a witness, you know, are you going to feel more confident that the person's telling the truth because they swore an oath on a religious book? What do you think of it if you don't agree with the religion, should a juror be giving less weight to it? What if you think the ceremony the person's performing is somehow distasteful? Should that affect it?
Michael Mulligan:You know, really, that's kind of where the rubber hits the road. You're going to have serious cases. You're going to have potential juries or jurors or judges listening to these things. How should this have any bearing on it really at all? And so well, I guess, in my view, it's perhaps unfortunate that we just missed out on the opportunity to fix upon what we've been doing, perhaps for some mistaken reason, in terms of why we got rid of all these oaths. But anyways, as of the 6th of this month, we've got a new practice directive and if people want to be using some other cultural object or some other book other than the Bible, they're going to have to bring it along and we're going to get back to asking every witness which they prefer, and then somehow some judicial official has to figure out what to do if they view the practice as somehow incompatible with dignity or decorum. So that's the latest in terms of what a practice directive is and what's required in terms of oaths and affirmations.
Adam Stirling:We have three and a half minutes left and it's the case of the push and the accidental fall off the cliff, and I've seen this going around in headlines. Your thoughts on this one.
Michael Mulligan:Well, the actual decision from the BC Court of Appeal and it's a tragic case. It's a case involving a man who pushed his girlfriend. She fell off a cliff. It was accepted that that was accidental, but it was still an assault, so he pled guilty to manslaughter and he was assault, or whether the sentence generally was appropriate or not. And it has to do first of all with what a joint submission is. And a joint submission in a case is where the Crown and the defense agree in terms of what the sentence is going to be and it's the basis upon which people wind up pleading guilty, right. And you can imagine, in this case there could well have been real challenges of proof about sort of what happened or how she wound up over the cliff or whatnot. But in any case, the man wound up pleading guilty to manslaughter on the basis of this push that caused the woman to, on the basis of a manslaughter plea, unintentionally fall off and die. Right. If you intentionally did that, that's murder, right.
Michael Mulligan:But there was a joint submission. Both Crown and Defense agreed on the fact pattern and also agreed on exactly what sentence should be imposed, right down to the calculation of time spent, and had already spent in jail. He'd spent in jail 440 days waiting for his eventual trial or guilty plea right, and so that's taken into account. Right. It would be unreasonable to say sorry, we're not taking into account, you spent a year and a half in prison. But there then has to be a decision about how do you calculate that, and usually there's some additional credit given for the time in custody beforehand. Because there's no parole, you're sitting in a cell without any programming. It can be miserable. And so there was the joint submission of this case went right down to calculation of like how many days credit should be given for the 440 days spent in custody and what should the results of that be in terms of how long this person's sentence should be. The sentencing judge had some problem with that said. Well, I want further information, I want to get a pre-sentence report ordered and kind of delayed the sentencing proceeding.
Michael Mulligan:All of that is interesting because the Supreme Court of Canada has said clearly that where there's a joint submission, a judge doing the sentencing does not have the authority to depart from what the Crown and the defence have agreed to, unless what's being agreed to is so inappropriate that it would bring the administration of justice into disrepute. It's sort of got to be completely outlandish or the judge is required to accept it. In the Supreme Court of Canada and the Court of Appeal has said, as is, they can't tinker with it, the theory being that if the judges could depart from what's being agreed to routinely, nobody would plead guilty and the justice system would basically come to his knees. Here the judge did tinker with it and rather than ultimately imposing a provincial sentence, which is one of two years or less, she imposed one which was a federal sentence of just over two years, by giving him slightly less credit in the calculation for dead time.
Michael Mulligan:That was the basis of the appeal, and the Court of Appeal allowed the appeal and they said look, that's just an error of law. The judge does not have authority to do that. They can't tinker with it. The judge can assess whether it's so unhinged from the circumstances that it would bring the administration of justice into disrepute. But if it doesn't fail on that very high bar, a judge can't then just meddle with the sentence and change it, even in small ways. And here this was a true joint submission. They agreed right down to the calculation of time and so, on that basis, allowed the appeal and imposed the sentence that was agreed to, meaning the person will serve it in a provincial jail rather than a penitentiary.
Adam Stirling:that's what's going on in that case michael mulligan, from mulligan defense lawyers, legally speaking during the second half of our second hour every thursday. Thank you so much. Pleasure as always thanks much.
Michael Mulligan:It's always great to be here. Have a great day. All right, you too, we'll take quick break.
Adam Stirling:News is next.