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Evidence - Oaths. R. v. S.W.
In R. v. S.W. (Ont CA, 2026) the Ontario Court of Appeal considered, in a criminal case context, the consequences of a 18-year old witness testifying under a 'promise to tell the truth' - as opposed to swearing or solemnly affirming:a. Testimony under a promise to tell the truth
[12] T-J.J. was 18 years old at trial. The appellant submits that the trial judge erred in permitting T-J.J. to testify under a promise to tell the truth rather than under oath or affirmation. The respondent agrees that this was an error, and the issue on appeal is the appropriate remedy.
[13] The issue appears to have arisen by inadvertence. Prior to T-J.J.’s testimony, when she was not in the courtroom, the Registrar asked whether the witness required an oath, affirmation, or a promise to tell the truth. The Crown responded, “[p]robably a promise.” When T-J.J. took the stand, she was asked whether she promised to tell “the truth, the whole truth, and nothing but the truth.” She responded “[y]es.” The defence did not object. The following morning, she was reminded of her promise to tell the truth and she said “[y]es.” Again, there was no objection.
[14] Where there is no challenge to mental capacity, the evidence of a person age 14 or over is to be taken by oath or solemn affirmation: Criminal Code, R.S.C. 1985, c. C-46, ss. 540, 646; Canada Evidence Act, R.S.C. 1985, c. C-5, ss. 13-16.
[15] The appellant submits that it was simply not a lawful option for T-J.J. to testify under a promise to tell the truth and that on this basis the appeal should be allowed. He further submits that the curative proviso should not apply as the error was not harmless: T-J.J. was a central Crown witness, and she ought to have been given the choice between an oath or affirmation, a process which, he submits, reaffirms the solemnity of the commitment to truthful testimony.
[16] In support of his position, the appellant cites a summary conviction appeal decision, R. v. Shaw, 2016 ONSC 658, in which the trial was found to be “improper” where two adult witnesses, both without disabilities, had given evidence under a promise to tell the truth rather than under oath or affirmation. He also relies on R. v. K.C., 2021 ONCA 776, a decision in which this court declined to apply the curative proviso where the most critical witnesses in a youth sexual assault trial gave evidence without having been sworn or affirmed in accordance with the statutory requirements.
[17] I do not accept the appellant’s submission. While there was unquestionably an error in having T-J.J. testify under a promise to tell the truth, on the facts of this case, the error was harmless and the curative proviso should apply, specifically s. 686(1)(b)(iii).
[18] This case is distinguishable from K.C. In that case, this court was not satisfied that the error was benign. The procedure followed appeared casual. For example, the appellant was asked if he wanted to “take an oath on the Bible or would… prefer a promise.” He said: “Yeah, promise.” Answers such as “yeah” and “okay” undermined the required solemnity, and this court determined that the circumstances did not “act as a ‘functional equivalent’ of an oath or affirmation”.
[19] By contrast, here, there is simply no evidence that T-J.J.’s promise was anything less than a functional equivalent of an oath or affirmation. T-J.J. was formally asked whether she promised to tell the truth, the whole truth, and nothing but the truth. She formally responded “yes.” There was no objection when the promise was initially administered or when she was reminded the following day of her promise. In addition, the trial judge made findings of fact that she “clearly wanted to tell the truth” and that she “has not been careless with the truth.” In my view, these findings highlight that there was no concern as to whether T-J.J. understood the need to tell the truth, and she was found to have made every effort to do so.
[20] I would not endorse following the lower court decisions in Shaw and R. v. Jardine, 2016 ONSC 7686, at paras. 13-17. Instead, I would adopt the approach of the Court of Appeal for British Columbia set out in R. v. Hanna (1993), 1993 CanLII 1425 (BC CA), 80 C.C.C. (3d) 289 (B.C.C.A.). Where an irregular commitment was administered (a combination of a solemn affirmation and a promise to tell the truth), the court concluded as follows, at p. 300:There is no reason to think that the actual form of words administered in any way diminished the binding effect which they were intended to have upon the witness’s conscience, nor is there any reason to believe that the witness himself felt any less morally obligated to tell the truth than he would have if the proper form of solemn affirmation had been administered to him. In those circumstances, no possible prejudice could have resulted to the appellant. [21] The parties agreed that if this court were of the view that the curative proviso should apply, the applicable provision would be s. 686(1)(b)(iii), on the basis that “no substantial wrong or miscarriage of justice” has occurred: R. v. Tayo Tompouba, 2024 SCC 16, 435 C.C.C. (3d) 285, at para. 76. I accept that submission. The failure to administer the proper commitment to testify truthfully is, in my view, an error that can be addressed under s. 686(1)(b)(iii), as it is procedural in nature and not jurisdictional: see e.g., R. v. Krack (1990), 1990 CanLII 10976 (ON CA), 56 C.C.C. (3d) 555 (Ont. C.A.), at p. 559; Tayo Tompouba, at paras. 75-76. I also accept the Crown’s submission that a proper approach requires examining, on the facts of each case, whether the Crown could meet the burden of establishing that the error caused no prejudice. Certainly, T-J.J.’s promise to tell the truth was an error from which no prejudice flowed, and it cannot be said that it had any impact on the result of the trial.
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