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

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 and 63, as well as sections 56 and 64 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 the lawyer's 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 of the deponent's identity. 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 to be taken. 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).

Remote commissioning of affidavits or solemn declarations

[12]  While it is preferable for the deponent to appear physically before a lawyer for the purposes of commissioning an affidavit or solemn declaration, a lawyer may discharge the lawyer’s ethical and professional obligations regarding commissioning an affidavit or solemn declaration where the lawyer and deponent are not physically together through the use of electronic and video technology in the manner set out below.  

Lawyers should keep in mind however that what is accepted as evidence is ultimately for a trier of fact to determine, and that complying with the process set out in this commentary is not a guarantee that an affidavit or solemn declaration commissioned using electronic and video technology will be accepted as evidence by the trier of fact. Moreover, if concerns are identified about the particular manner in which an affidavit or solemn declaration is commissioned remotely or if a remote process raises any issues, in particular the serious concerns that would arise from issues regarding the identity or capacity of the deponent, or whether coercion of the deponent is a concern, those issues may result in the affidavit or solemn declaration not being accepted, or being given less weight. Lawyers are also reminded to be cautious regarding the heightened risks of fraud and undue influence presented by engaging in virtual processes, and of their obligations under Code rule 3.2-7.  

Lawyers are also reminded to ensure that there are no prohibitions to the commissioning of an oath or solemn declaration through electronic or video technology for the purposes of any particular document for which such a process is contemplated.  

Where the deponent is not physically present in British Columbia, the process for remote commissioning of an affidavit or solemn declaration should not be used unless the lawyer is satisfied there is no other practical way to undertake the commissioning of the document in accordance with the procedures of the jurisdiction in which the deponent is situated. 

Process 

 The process for remote commissioning of an affidavit or solemn declaration by a lawyer must include the following elements.  

1. Any affidavit or solemn declaration to be commissioned using electronic and video technology must contain a paragraph at the end of the body of the affidavit or solemn declaration describing that the deponent was not physically present before the lawyer as commissioner, but was in the lawyer’s electronic presence linked with the lawyer utilizing video technology and that the process described below for remote commissioning of affidavits or solemn declarations was utilized.
2. The affidavit or solemn declaration must contain a paragraph acknowledging the solemnity of making the affidavit or solemn declaration and acknowledging the consequences of making an untrue statement.
3. While the lawyer and the deponent are in each other’s electronic and video presence, the deponent must show the lawyer the front and back of the deponent’s valid and current government-issued photo identification. The lawyer must compare the video image of the deponent and information in the deponent’s government-issued photo identity document to be reasonably satisfied that the name and the photo are of the same person and that the document is authentic, valid and current. The lawyer must record that these steps have been taken. The lawyer should also consider recording the session through which the affidavit or solemn declaration is made.
4. The lawyer and the deponent must both have the text of the affidavit or solemn declaration, including all exhibits, before each of them while in each other’s electronic presence.
5. The lawyer and the deponent must review the affidavit or solemn declaration and exhibits together to verify that the language is identical.
6. At the conclusion of the steps outlined above, while still in each other’s electronic presence, the lawyer, as commissioner, must administer the oath, the deponent will swear or affirm the truth of the facts contained in the affidavit or solemn declaration, and the deponent will affix the deponent’s signature to the affidavit or solemn declaration. 
7. Where it is not permissible to commission an affidavit or solemn declaration using an electronic signature, the deponent’s signature must be affixed in ink to the physical (paper) copy of the affidavit or solemn declaration above, and the deponent must immediately scan the document, save a copy immediately after scanning it, and immediately forward it electronically to the lawyer. 
8. Where it is permissible to commission an affidavit or solemn declaration using an electronic signature, the deponent must immediately save the document and immediately forward it, together with the exhibits, electronically to the lawyer.  
9. Upon receipt by the lawyer of the sworn affidavit or of a solemn declaration that has been attested to bearing the deponent’s signature and all exhibits, the lawyer should, after having taken steps to ensure that the document received is the same as the document reviewed under the steps set out above, affix the lawyer’s name and signature, as commissioner, to the jurat and exhibits. 
10. If an electronic process is used that allows the lawyer, as commissioner, access to the document being signed by the deponent while in video contact with the deponent, the lawyer will then affix the lawyer’s signature to the document, provided such process is permitted by the tribunal or court in which the affidavit or solemn declaration is to be used.

The version of the affidavit or solemn declaration that has been duly sworn or affirmed and contains the signatures of the deponent and the lawyer must then be saved by the lawyer, and may be filed with the Court or tribunal as may be required.

Affirmation

[13]  In cases where a deponent does not want to swear an affidavit by oath, an affidavit can be created by solemn affirmation. See section 20 of the Evidence Act, R.S.B.C. 1996, c. 124.

Swear or affirm that the contents are true

[14]  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.

[15]  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.

[16]  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.”

[17]  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.

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

Solemn declaration

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

[20]  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

[21]  A deponent unable to sign an affidavit may place the deponent's 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; [3], [7], [8], [10], [12], [14], [17] and [20] amended 10/2021; [12]-[20] renumbered as [13]-[21], [12] added, 07/2024]

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.