Appendix A – Affidavits, Solemn Declarations and Officer Certifications – annotated

Affidavits and solemn declarations

1.  A lawyer must not swear an affidavit or take a solemn declaration unless the deponent:

(a)     is physically present before the lawyer,

(b)     acknowledges that he or she is the deponent,

(c)     understands or appears to understand the statement contained in the document,

(d)     in the case of an affidavit, swears, declares or affirms that the contents of the document are true,

(e)     in the case of a solemn declaration, orally states that the deponent makes the solemn declaration conscientiously believing it to be true and knowing that it is of the same legal force and effect as if made under oath, and

(f)      signs the document, or if permitted by statute, swears that the signature on the document is that of the deponent.

Commentary

Non-practising and retired members

[1]  Non-practising and retired members are not permitted to act as notaries public or commissioners for the purpose of taking affidavits or solemn declarations. See Law Society Rules 2-3 and 2-4 for the definitions of non-practising and retired members.

Interjurisdictional practice

[2]  A British Columbia lawyer, as a notary public, may administer oaths and take affidavits, declarations and affirmations only within British Columbia: See section 14 of the Legal Profession Act for a lawyer’s right to act as a notary public, and section 18 of the Notaries Act, RSBC 1996, c. 334 for rights and powers of a notary public, including the right to draw affidavits, affirmations or statutory declarations for other jurisdictions.

[3]  A British Columbia lawyer, as a commissioner for taking affidavits for British Columbia, has authority to administer oaths and take affidavits, declarations and affirmations outside of BC for use in BC: See sections 59, 63 and related sections of the Evidence Act, RSBC 1996, c.124.

[4]  Notwithstanding Law Society mobility provisions across Canada, a British Columbia lawyer cannot swear an affidavit in another province or territory for use in that jurisdiction unless the lawyer is a member of the bar in that jurisdiction or the jurisdiction’s own legislation allows it. For example, because of Alberta legislation, a member of the Law Society of British Columbia, while in Alberta acting under the mobility provisions on an Alberta matter, cannot swear an affidavit for use in Alberta.

[5]  British Columbia lawyers should contact the law society of the other province or territory if they need to check whether they are entitled to swear an affidavit in that jurisdiction.

[6]  Likewise, lawyers from other jurisdictions visiting British Columbia may not swear affidavits in BC for use in BC: See section 60 of the Evidence Act and the definition of “practising lawyer” in section 1(1) of the Legal Profession Act.

Deponent present before commissioner

[7]  See R. v. Schultz, [1922] 2 WWR 582 (Sask. CA) in which the accused filled in and signed a declaration and left it on the desk of a commissioner for taking oaths, later meeting the commissioner outside and asking him to complete it. The court held that it was not a solemn declaration within the meaning of the Canada Evidence Act, stating that: “The mere fact that it was signed by the accused does not make it a solemn declaration. The written statement by the commissioner that it was ‘declared before him’ is not true. The essential requirement of the Act is not the signature of the declarant but his solemn declaration made before the commissioner.” (p. 584) Likewise, it has been held in the U.S. that the taking of an affidavit over the telephone is grounds for a charge of negligence and professional misconduct: Bar Association of New York City v. Napolis (1915), 155 N.Y. Sup. 416 (N.Y. Sup. Ct. App. Div.). In B.C., the conduct of a lawyer who affixed his name to the jurat of the signed affidavit without ever having seen the deponent constituted professional misconduct: Law Society Discipline Case Digest 83/14.

Identification

[8]  The commissioner should be satisfied that the deponent is who the deponent represents himself or herself to be. Where the commissioner does not know the deponent personally, identification should be inspected and/or appropriate introductions should be obtained.

Appearing to understand

[9]  To be satisfied of this, the commissioner may read the document aloud to the deponent, have the deponent read it aloud or accept the deponent’s statement that its contents are understood: R. v. Whynot (1954), 110 CCC 35 at 42 (NSCA).

[10]  It is also important that the deponent understands the significance of the oath or declaration he or she is proposing to take. See King v. Phillips (1908), 14 CCC 239 (B.C. Co. Ct.); R. v. Nichols, [1975] 5 WWR 600 (Alta SC); and Owen v. Yorke, (6 December, 1984), Vancouver A843177 (BCSC).

[11]  If it appears that a deponent is unable to read the document, the commissioner must certify in the jurat that the document was read in his or her presence and the commissioner was satisfied that the deponent understood it: B.C., Rules of Court, Rule 22-2(6). If it appears that the deponent does not understand English, the lawyer must arrange for a competent interpreter to interpret the document to the deponent and certify by endorsement in Form 60 [now Form 109] that he or she has done so: Rules of Court, Rule 22-2(7).

Affirmation

[12]  The British Columbia Law Reform Commission has raised the question of whether an affidavit may properly be created by solemn affirmation under provincial law. For this reason, in cases where a deponent does not want to swear an affidavit, it may be prudent to create the affidavit by solemn declaration rather than by solemn affirmation. See Appendix B to Law Reform Commission of British Columbia, Report on Affidavits: Alternatives to Oaths LRC 115 (1990).

Swear or affirm that the contents are true

[13]  This can be accomplished by the commissioner asking the deponent: “Do you swear that the contents of this affidavit are true, so help you God?” or, if the affidavit is being affirmed, “Do you solemnly affirm [or words with the same effect] that the evidence given by you is the truth, the whole truth and nothing but the truth?,” to which the deponent must answer in the affirmative. In taking an affirmation the lawyer should comply with section 20 of the Evidence Act, RSBC 1996, c. 124 and the Affirmation Regulation, B.C. Reg. 396/89.

[14]  Section 29 of the Interpretation Act, RSBC 1996, c. 238, defines an affidavit or oath as follows:

“affidavit” or “oath” includes an affirmation, a statutory declaration, or a solemn declaration made under the Evidence Act, or under the Canada Evidence Act; and the word “swear” includes solemnly declare or affirm;

[15]  If an affidavit is altered after it has been sworn, it cannot be used unless it is resworn. Reswearing can be done by the commissioner initialling the alterations, taking the oath again from the deponent and then signing the altered affidavit. A second jurat should be added, commencing with the word “resworn.”

[16]  Generally, an affidavit is sworn and filed in a proceeding that is already commenced. An affidavit may also be sworn before the proceeding is commenced: Rules of Court, Rule 22-2(15). However, an affidavit may not be postdated: Law Society of BC v. Foo, [1997] LSDD No. 197.

[17]  Swearing to an affidavit exhibits that are not in existence can amount to professional misconduct: LSBC v. Foo.

Solemn declaration

[18]  A solemn declaration should be made in the words of the statute: King v. Phillips, supra; R. v. Whynot, supra.

[19]  The proper form for a solemn declaration is set out in section 41 of the Canada Evidence Act, RSC 1985, c. C-5:

Solemn declaration

41. Any judge, notary public, justice of the peace, provincial court judge, recorder, mayor or commissioner authorized to take affidavits to be used either in the provincial or federal courts, or any other functionary authorized by law to administer an oath in any matter, may receive the solemn declaration of any person voluntarily making the declaration before him, in the following form, in attestation of the execution of any writing, deed or instrument, or of the truth of any fact, or of any account rendered in writing:

I, , solemnly declare that (state the fact or facts declared to), and I make this solemn declaration conscientiously believing it to be true, and knowing that it is of the same force and effect as if made under oath.

Declared before me  at  this . day of , 20

and in section 69 of the Evidence Act, RSBC 1996, c. 124:

Statutory declarations

69. A gold commissioner, mayor or commissioner authorized to take affidavits, or any other person authorized by law to administer an oath in any matter, may receive the solemn declaration of any person voluntarily making it before him or her in attestation of the execution of any writing, deed or instrument, or of the truth of any fact, or of any account rendered in writing, in the following words:

I, A.B., solemnly declare that [state the facts declared to], and I make this solemn declaration conscientiously believing it to be true and knowing that it is of the same legal force and effect as if made under oath.

Execution

[20]  A deponent unable to sign an affidavit may place his or her mark on it: Rules of Court, Rule 22-2(4)(b)(ii). An affidavit by a person who could not make any mark at all was accepted by the court in R. v. Holloway (1901), 65 JP 712 (Magistrates Ct.).

[[11], [16] and [20] amended 05/2016]


Annotations

Witnessing the execution of an instrument

2. When a lawyer witnesses the execution of an instrument by an individual under the Land Title Act, RSBC 1996, c. 250, the lawyer’s signature is a certification by the lawyer that:

(a)     the individual appeared before and acknowledged to the lawyer that he or she is the person named in the instrument as transferor, and

(b)     the signature witnessed by the lawyer is the signature of the individual who made the acknowledgment. (See section 43 of the Land Title Act.)

Commentary

[1]  Non-practising and retired members are not permitted to act as officers for the purpose of witnessing the execution of instruments under the Land Title Act.


Annotations