Combining amendments from nine separate bills that had failed to pass in previous sessions of parliament, Bill C-10 makes fundamental changes to almost every component of Canada’s criminal justice system:

• New criminal offences 
• New and increased mandatory minimum sentences 
• The selective elimination of conditional sentences 
• Increased pretrial detention and new, harsher sentencing principles for young offenders;
• Longer waiting times before individuals can apply for pardons 
• Increased barriers for Canadians detained abroad who wish to serve the remainder of their sentence at home

• Amendments to the Immigration and Refugee Protection Act would grant the Minister of Immigration broad discretion to deny work permits to any foreign national who is ‘at risk of abuse';
• Amendments to various pieces of legislation to allow victims of terrorism to sue certain foreign entities and governments for damages

Justice critic Jack Harris stated “We think it will lead to more punishment but not safer streets, not a deterrence against criminals and in fact there will be more victims, more crimes and less safety on our streets.”

The Canadian Bar Association (CBA) has concerns with several aspects of the omnibus crime bill, including mandatory minimum sentences and overreliance on incarceration, constraints on judges’ discretion to ensure a fair result in each case, and the Bill’s impact on specific, already disadvantaged groups.

“The impact on northern residents, Aboriginal people and people with mental illness will be especially profound,” says Dan MacRury, of Sydney, Nova Scotia, chair of the CBA’s National Criminal Justice Section. The CBA believes that the Bill will make already serious criminal justice system problems much worse, with huge resource implications.

The CBA Section released a position paper stating that bundling several critical and entirely distinct criminal justice initiatives into one omnibus Bill is inappropriate, and not in the spirit of Canada’s democratic process.

“Even more important than our concerns about the process is our concern about the general direction of these initiatives. The CBA is committed to public safety, and there is broad consensus among reputable Canadian criminal justice experts as to what is most effective in achieving a safer society.

In our view, the initiatives in Bill C-10 go in a contrary direction. They adopt a punitive approach to criminal behavior, rather than one concentrated on how to prevent that behavior in the first place, or rehabilitate those who do offend. As most offenders will one day return to their communities, we know that prevention and rehabilitation are most likely to contribute to public safety.”

Justice Minister Rob Nicholson said the implementation of the various aspects of legislation will be “spaced out” over a period of time.

IN FORCE INFORMATION

The Safe Streets and Communities Act, S.C. 2012, c. 1 (Bill C-10), received Royal Assent on March 13, 2012.

The sections that require proclamation to be brought into force are listed here, and so far, there has only been one proclamation.

P.C. 2012-559 brings sections 135 and 136 of the Act into force as of  May 3, 2012. They are amending sections 3, 10(1) and 10(2) of the International Transfer of Offenders Act.

However, some sections also came into force upon Royal Assent – sections 32(2), 48, 108-146, 148-159, and 161-165.

Amending the Criminal Code:
s. 32(2) replaced Paragraph 515(6)(d) of the Criminal Code with the following:
      (d) with having committed an offence punishable by imprisonment for life under any of sections 5 to 7 of the Controlled Drugs and Substances Act or the offence of conspiring to commit such an offence.

Amending the National Defence Act:
s. 48 replaced Subparagraph (a)(ii) of the definition “designated offence” in section 153 of the English version of the National Defence Act is replaced by the following:
       (ii) an offence punishable by imprisonment for life under subsection 5(3), 6(3) or 7(2) of the Controlled Drugs and Substances Act, or

Amending the Criminal Records Act:
s. 108-146 – in summary, it substitutes the term 'record suspension' for the term 'pardon'.

Amending the DNA Identification Act; the Immigration and Refugee Protection Act; Limiting Pardons for Serious Crimes Act; National Defence Act; Youth Criminal Justice Act:
s. 148-159

And Transitional Provisions:
s. 161-165

Detailed information on the status of the Safe Streets and Communities Act, S.C. 2012, c. 1 (Bill C-10), can be found here.


RESOURCES

• Omnibus Crime Bill C-10 - Canadian Civil Liberties Association
• Omnibus Crime Bill - National Post
• Submission on Bill C-10: Safe Streets and Communities Act - CBA
• Tories Use Majority to Pass Omnibus Crime Bill - National Post
• What worries critics about omnibus crime bill - CBC

Issue 127 (2011) of The Verdict, by the Trial Lawyers Association of British Columbia (available in Resource and Regional libraries) turns its focus to practice in the BC Court of Appeal.

A variety of articles provide an overview of the practical and technical matters in civil and criminal appellate practice.

Articles include:

• Fundamentals of Appellate Practice (Civil and Criminal) in the BC Court of Appeal
• Some Thoughts About Appellate Advocacy
• Factum Writing for the BC Court of Appeal
• Standards of Review On Appeals 
• A View From the Other Side: What I Would Have Done Differently If I Knew What I Know Now

Try searching our BC Legal Literature Index  to find articles in The Advocate, The Verdict, Essays in the History of Canadian Law, Legal Information Service Report, and Section Papers of the Canadian Bar Association, BC Branch. Full text is available for order.

Have you ever heard of the chicken oath?

Generally speaking, when going to court as a witness, people are prepared to raise their right hands and swear an oath on a holy book to tell the truth. But this isn’t the only way to do it.

A century ago, the chicken oath was used primarily by those of Chinese descent in British Columbia.  The oath involved the witness signing his name on a piece of paper, followed by a ceremony outside the court in which a rooster's head was chopped off on a block and the paper oath was set on fire.

For example, according to the article “The King’s Oath or Chicken Oath”, in 1895 a grocer on Vancouver Island, Simon Leiser & Co., submitted an invoice to the local government for several chickens and a knife supplied to an H.A. Simpson for a trial at Union, BC. The government declined to pay the bill because Mr. Simpson was acting on behalf of the plaintiffs.

A 1965 article in The Advocate states that "[c]olourful rituals ought not to come as a surprise since the Oaths Act of 1888 gives wide scope allowing witnesses to take the Oath in any form and with such rites as bind their own conscience."

Other non-Christian Chinese oaths consisted of the candle oath (whereby the witness holds their hand over a lit candle while swearing the oath and then extinguishes the flame), the saucer oath (when the witness breaks a saucer and then swears to tell the truth) and the paper oath (the witness signs their name to a piece of paper and then burns it).

"Indeed counsel in one case expressed relief that a particular Chinese witness felt bound by the saucer method.  Some Chinese, he pointed out, require a white cockerel to be slaughtered in court.  But even saucers can cause problems.  When 20 Chinese turned up as witnesses at an East London county court the proceedings had to be held up while the court usher scoured local crockery shops."  ...

"Colonial Magistrates used to encounter many strange customs. ... [I]n North Kenya some tribes used to bite skin from a live dog and say 'as I bite this dog, so may I be eaten if I lie.'  A Masai presented the court with cooked rice decked with seven yellow solanum berries.  In Tanganyika a member of the Akimbu tribe once held a deadly puff adder before his face saying, 'If I am going to tell lies may this snake kill me.'  The snake did not.  Nevertheless, the tribesman lied heartily and was jaoled for perjury."

A LITTLE HISTORY
According to Donkers v. Kovach, State of Michigan, Court of Appeals, File No. 270311, December 18, 2007 (p.6), the origin of raising the right hand dates back to Roman times.  The penalty for perjury was a brand on the right hand.  Thus, if one was taking an oath, one would be required to raise the right hand to show that s/he had not been convicted of perjury in the past.

In England in the Middle Ages, a religious oath was used to exclude non-Christians from participating in the English legal and business communities.  Eventually, however, the English legal system began to accommodate these differences by allowing non-Christians to swear on a sacred text to any Higher Being which they believed would bring divine punishment if they committed perjury.

See our Asked & Answered on Oaths for more uncommon oaths.

For additional information on oaths, affirmation and declarations relating to specific religious protocols, try the UK's Equal Treatment Bench Book, chapter 3.2: Oaths, Affirmations, and Declarations (p.3-9 to 3-18).

The current oaths used in Canada are essentially the same as those historically used in Britain.

DISCRIMINATION?
J. de Villiers, in his article "Oath or Affirmation? Or Neither?", argues "[I]n practice in our courts (at least in matters under the jurisdiction of the federal Parliament) it is assumed that witnesses will take the oath in conformity with Anglican ritual unless they expressly elect either to take an oath in conformity with some other religion or to affirm."  ...

"It is left to the witness to express spontaneously the wish to swear in some other manner or to affirm.  The practice assumes that an oath is preferred over an affirmation and that the Anglican oath is the preferred form of oath.  Thus it discriminates against Quakers and other non-Anglican religious people as well as agnostics and atheists."

However, the BC Evidence Act, RSBC 1996, c 124, sections 21 to 22 discusses the validity of the oath regardless of absence or difference of religious belief, as well as oaths administered by uplifted hand.

STILL RELEVANT?
As recently as 1993 in R. v. B. (K.G.), [1993], 1 SCR 740 at 789, the Supreme Court of Canada said: “There remain compelling reasons to prefer statements made under oath, solemn affirmation or solemn declaration.  While the oath will not motivate all witnesses to tell the truth (as is indicated by the witnesses' perjury in this case), its administration may serve to impress on more honest witnesses the seriousness and significance of their statements, especially where they incriminate another person in a criminal investigation.”

CASES
There are records of several cases where the chicken oath was administered in Canada:

• R v Wooey, (1902) 9 B.C.R. 569, 8 C.C.C. 25.  In the course of a murder trial, it was proposed that a witness swear the Paper Oath. C. Wilson, a Vancouver lawyer acting for the defendant, believed that the Chicken Oath would be more binding on the witness's conscience. After questioning the interpreters involved, the court then instructed the witness to be sworn using the Chicken Oath. 
• The Nanaimo Mining Riots Court Case, October 1914.

Photographer: Nanaimo District Museum Photograph Collection 
Photo of judge, magistrates and witnesses involved in the Nanaimo Mining Riots Court Case swearing a chicken oath

• R. v. Wong, (1925) 36 BCR 120, 44 CCC 133
  According to the Canadian Holy War: A Story of Clans, Tongs, Murder, and Bigotry by I. Macdonald & B. O'Keefe, p. 68-9, the chicken oath was administered during the trial for the 1924 murder of Janet Smith in Vancouver BC.
• R. v. Wong, September 1930, Brantford Ontario.  According to an article by H. Ibbotson in the Brantford Expositor, one of the highlights of this murder case was the administration of the chicken oath to various witnesses during the preliminary hearing and the trial.

RESOURCES
"The Art of Swearing a Resounding Oath".  The Advocate (1965) 23:95.  (available in Vancouver and regional courthouse libraries)

“The Chinese Oath” by P.S. Lampman in 3 Can. L. Rev. 24 (1904).  This article was published in British Columbia History, the Journal of the British Columbia Historical Federation in 2003.  (available in Hein Online)

“The King’s Oath or Chicken Oath” by R. Greene (p. 38-9) BC Historical News, v. 36, no. 4, Fall 2003.

 “Oath or Affirmation?  Or Neither?" by J. de Villiers, The Advocate, (2009) 67: 199-207 (available in Vancouver and regional courthouse libraries)

“Oaths and Affirmations,” by H. Rees.  Fillmore Riley Report 48 (Spring 2000).