Some examples of statutory declarations and affidavits we notarize in our daily practice are:
statutory declarations confirming identity, statutory declarations confirming that a passport or other document has been lost or stolen, a statutory declaration in Lieu of Guarantor as required by Passport Canada, statutory declaration of Common-law Union as required by Citizenship and Immigration Canada, Custodianship Declarations for international students as required by Vancouver School Boards and Colleges, Affidavit of Execution of a Will or Codicil, Affidavit of Service, statutory declarations regarding the ownership of property, statutory declarations confirming marital status. Notaries Public of BC are Commissioners for Taking Affidavits and may administer oaths and affirmations and take affidavits and statutory declarations as permitted or required by law. Below you will find a brief explanation of terminology and procedures used by lawyers and Notaries when they draft and/or witness affidavits and statutory declarations.
An oath is a solemn promise, either to do something or that something is true. It is the way a person agrees that they are bound to act faithfully and truthfully. An oath usually includes an appeal to God to witness the person’s words and to impose punishment if the person does not act truthfully. Under the Interpretation Act, “oath” includes an affirmation, a statutory declaration or a solemn declaration made under the British Columbia Evidence Act or the Canada Evidence Act.
An affirmation is a solemn and formal declaration that an affidavit is true or that a person will tell the truth.
Like an affidavit, a statutory declaration is a statement of facts made in writing. The statement is verified by the solemn declaration of the person making the statement. Statutory declarations may be required pursuant to various statutes. The form of a statutory declaration is mandated by the Canada Evidence Act and the British Columbia Evidence Act, as follows:
I, [name], 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.
1. Identity of the Person Making the Statement
Whether administering an oath, affirmation or declaration, the Notary must be satisfied as to the identity of the person making the written statement (who may be referred to as the deponent, affirmant or declarant). The person is required to produce some reliable means of identification (such as a government-issued ID that includes the person’s name, current address, signature and photograph).
2. Capacity of the Person Making the Statement
The Notary must also be satisfied that the person making the written statement (deponent, affirmant or declarant) understands the contents of the document and appreciates the significance of making the affidavit or statutory declaration. If the person does not understand the contents of the statement or does not appreciate the significance of the undertaking (or is not acting of their own free will), the Notary cannot proceed. If an apparent lack of understanding is due to a language barrier, the affidavit or statutory declaration may be taken with the assistance of an interpreter.
3. Administering the Oath, Affirmation or Solemn Declaration
The deponent (affirmant or declarant) must solemnly swear (affirm or declare) that the contents of the affidavit are true to the best of the deponent’s knowledge, information and belief. Under the Criminal Code of Canada, it is an offence (with a maximum penalty of two years of imprisonment) to sign a document purporting to be an affidavit or statutory declaration sworn or declared before a Notary Public or Commissioner of Oaths, when in fact the document was not so sworn or declared.
4. Signature of the Person Making the Statement
The deponent must then sign the affidavit in the Notary’s presence. A Commissioner for Taking Affidavits cannot take an affidavit or statutory declaration if the person signing the affidavit or declaration is not present. The commissioner must actually view the act of signing and so it must occur in the commissioner’s presence.
5. Completing the Jurat (Ordinary Form)
The jurat is the part of the oath, affirmation or declaration that must be completed by the Commissioner for Taking Affidavits. The jurat should include the date the statement was sworn (affirmed/declared), the place where the statement was sworn (affirmed/declared) and the signature of the commissioner before whom the statement was sworn (affirmed/declared).
Ideally, an affidavit or statutory declaration should not contain any alterations, corrections or interlineations (inserted words written between the lines). If such changes are necessary, each change should be initialled by both the person making the statement and the Notary. Furthermore, check marks should be inserted at the beginning and end of each change to identify the portion to which each set of initials applies.
7. Procedure When Person Making Statement Does Not Understand English
If the person making the affidavit or statutory declaration does not understand the English language, the Notary may only proceed with the assistance of an interpreter. The interpreter must be sworn (or affirmed) that he/she well understands (the language of the person making the statement), that he/she will well and truly interpret the contents of this affidavit/statutory declaration to the deponent and that he/she will well and truly interpret to the deponent the oath/affirmation/solemn declaration to be administered. The interpreter would then interpret the contents of the document, following which the commissioner would administer the oath (affirmation/declaration) in English to the person making the statement. The interpreter would repeat the oath (affirmation/declaration) to the person making the statement in that person’s language and translate the response to the question in English.
8. Procedure When the Deponent is Visually Impaired or Illiterate
If the person making the affidavit or statutory declaration is visually impaired or illiterate, the document must be read to them and they must be asked whether they understand what was read. The oath, affirmation or solemn declaration may only be administered if the Commissioner is satisfied that they understand what was read to them.
*the above material was adapted from the Instruction Guide for the Commissioners for Taking Affidavits for British Columbia prepared by the Ministry of the Attorney General of British Columbia.