An affidavit is a document used in legal proceedings that comprises a witness’s statement of facts or opinion. The witness attests to the document, and the affidavit is taken by an authorized individual. This individual, known as the commissioner, confirms the witness’s identity and delivers the oath or affirmation that the document’s contents are accurate. The witness, not the commissioner, is responsible for determining the statement’s truth.
Affidavits should not be confused with depositions, as depositions are sworn or affirmative assertions of fact susceptible to cross-examination. In contrast, affidavits consist of declarations given ex parte and without cross-examination. In Canadian civil procedure, a deposition is a transcript of an oral discovery.
Some jurisdictions employ an active form in which the witness signs and swears or affirms under oath or affirmation, while others use a passive form in which the commissioner declares what the witness claimed to be true. The Latin name for Affidavit, which translates to “he had declared under oath,” reflects the age of the latter form.
An affidavit made in one jurisdiction may be used in another, but it must be made in compliance with the legislation of the jurisdiction in which it was taken. Any informality in the heading or other formal requirements of an Affidavit may constitute an objection to its admissibility as evidence. However, the court may nonetheless accept it if they deem it appropriate.
In motions and applications, affidavits are evidence and the documentary record that defines the issues. The witness, also known as the deponent or affiant, is responsible for the veracity of their Affidavit declaration. If a commissioner signs a jurat without the oath or affirmation being administered properly, they may be guilty of an offence and subject to a fine.
An affidavit is an important document in judicial proceedings, functioning as written witness testimony attested by a commissioner. The Affidavit’s format may vary by jurisdiction, but it is always a declaration of facts or opinions delivered under oath or affirmation. The commissioner’s duty is to authenticate the witness’s identity and administer the oath or affirmation, but the witness is responsible for the statement’s veracity.
This article is part of the firm’s work in civil litigation.