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Thursday, June 13th, 2019 technology  research  practice

A Practice Tip

  • Practice

As an enlightened country with an enlightened legal system practised by (hopefully) enlightened legal professionals, we are accustomed to certain neutralities that make no preference for religious beliefs. One such neutrality is the legal equivalence between swearing and affirming an affidavit. Accordingly, the form affidavits provided by courts in every Canadian common law jurisdiction contain a jurat with the words “Sworn (or Affirmed) before me at . . .”, with the options of “swearing” or “affirming” both accounted for in the template language.

However, while an affiant may be free to choose between swearing and affirming, it may be good practice to ensure the jurat specifies which option was used. Leaving the form language unchanged (that is, containing both “sworn” and “affirmed”) may be frowned upon (or worse… technically improper).

This issue arose in British Columbia v. Adamson, where Chief Justice Hinkson of the BCSC suggested that affidavits containing the language “sworn (or affirmed)” within the jurat (that is, without specifying which was used) were “improper” and would have been rejected were they not being adduced in the context of an interim application (see para. 19). The Chief Justice may have been disappointed that counsel had apparently neglected to review the “Guide to Preparing Your Affidavit,” provided by the BCSC on its website, which stresses that a jurat should make clear whether it was sworn or affirmed: “You do one or the other, not both. Cross out or delete the one that does not apply to you.”

Some (though not all) Canadian jurisdictions and institutions provide express guidance that a jurat should specify whether the affidavit had been either sworn or affirmed. Saskatchewan’s Guidelines for the Use of Commissioners for Oaths, for example, states that a proper jurat should identify whether the affidavit was sworn or affirmed, and only contain one or the other (at p. 7). The Northwest Territories’ Information and Instructions for Commissioners for Oaths and New Brunswick’s Commissioner of Oaths Handbook give similar instructions.

While it is perhaps a questionable invasion of privacy to force affiants to specify whether their evidence was sworn or affirmed, consider removing any form language in an affidavit that refers to both “sworn/affirmed” options before it is signed. If it is known in advance whether the affiant will swear or affirm, consider whether the corresponding language should be used in the jurat. If the affiant’s preferences are unknown at the time the affidavit is drafted, consider crossing out the inapplicable language once the affiant makes their election and then initial the alteration.

Shawn Erker (@ShawnErker) is Legal Writer & Content Manager at LAWPRO.

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