Is a Person Who Is Swearing An Oath to Tell the Truth Allowed to do So Just Because a Lawyer Says So?

When a Person Takes Oath to Swear or Affirm the Truth of Information Stated Within An Affidavit, the Law Expects That Such Person Actually Knows That the Stated Information Is True.

Understanding That Swearing or Affirming an Affidavit Requires Actual Knowledge or Belief For What Is Stated

Lawsuit Document When a person swears or affirms that the facts as stated within an Affidavit are true, the person must do so with actual knowledge or belief that the stated facts are indeed true. Swearing or affirming that stated facts are true, without actual knowledge, or a genuine basis for belief, that the stated facts are indeed true is highly improper and may even constitute as a criminal offence.

The Law

As per the Court of Appeal within Teefy Developments (Bathurst Glen) Limited v. Sun, 2021 ONCA 870, the very serious concern arose regarding an Affidavit that was prepared by a legal representative and thereafter provided to a person to make Oath and swear or affirm that the Affidavit contents were true despite that the person being asked to swear or affirm that the Affidavit contents were true was unable to read the Affidavit and was therefore unaware of what statements were being sworn or affirmed as true.  Additionally, upon raising this concern, the Court of Appeal was met with the surprising response that it is well known that legal representatives, such as a lawyer or paralegal, will prepare Affidavit documents, and the statements within, and that the Affidavit will then be provided to a person, known as the Deponent, to sign while under an Oath to state the truth. In reviewing this suggestion, the Court of Appeal said:

[9]   I pause, at this point, to reflect on a rather disturbing issue regarding the moving party’s affidavit filed on this motion. Her counsel advises that the moving party does not read English. When I inquired how she could have then sworn her affidavit in these proceedings, I was met with the remarkable response that “everyone” knows that affidavits are prepared by lawyers and clients simply sign what the lawyers tell them to sign.

[10]  It should go without saying that that is not the way that any affidavit is properly prepared. The deponent of an affidavit is required to review its contents and swear or affirm to its truth. It is the obligation of the person commissioning the affidavit to ensure, among other things, that he or she administers the oath or declaration in the manner required by law before signing the jurat or declaration: Commissioners for Taking Affidavits Act, R.S.O. 1990, c. C.17, s. 9(3). If the deponent does not understand English, then the affidavit must be translated for the deponent and the jurat on the affidavit must be changed to reflect that fact.

As per the Court of Appeal, and contrary to what was purported as common knowledge, an Affidavit must be prepared with the input of the person who will swear or affirm that the Affidavit is true.  It is highly inappropriate for a lawyer or paralegal to put words into the mouth, or onto an Affidavit, of a person who will be taking an Oath and confirming that the words are true unless the person actually knows, or verily believes, that the words are indeed true.

"... I was met with the remarkable response that “everyone” knows that affidavits are prepared by lawyers and clients simply sign what the lawyers tell them to sign"
~ Nordheimer J.A.

When a person simply speaks in live testimony, or states in an Affidavit document, information that the person was told to say or state, and the person does so, such a person may be committing the criminal act of perjury or fabricating evidence as per the Criminal Code of Canada, R.S.C. 1985, c. C-46 where it states:

Perjury

131 (1) Subject to subsection (3), every one commits perjury who, with intent to mislead, makes before a person who is authorized by law to permit it to be made before him a false statement under oath or solemn affirmation, by affidavit, solemn declaration or deposition or orally, knowing that the statement is false.

Fabricating evidence

137 Every one who, with intent to mislead, fabricates anything with intent that it shall be used as evidence in a judicial proceeding, existing or proposed, by any means other than perjury or incitement to perjury is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years.

Summary Comment

A person who swears or affirms that the contents of an Affidavit are true, meaning that the information stated within the Affidavit is true, must actually know or believe that the information is true.  When a person takes Oath and swears or affirms that an Affidavit is true, the person doing so must do so genuinely rather than doing so just because a lawyer or paralegal, or someone else, told the person to do so.

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