The latin term “affidavit” is a very common term used in law. Translated, it means “he who has declared upon oath”. The meaning is rather specific. It refers to a document that is verified under either oath or affirmation and where the deponent agrees that the legal remedies of perjury shall apply in the case that the statement is untrue.
Basically, the intention is to have a document that is as credible as it gets. It must be true, since the person who swore the affidavit agreed to perjury penalties!
However, in truth, a liar is a liar, and the affidavit form of documentation doesn’t really affect a fraudster that much. It really only affects law abiding citizens.
A sworn declaration is used to file documents in court proceedings. In this context, the document is usually referred to, simply as an “affidavit”. The declaration in real estate conveyancing is often called a “declaration”.
In both cases, the individual is asked to swear or affirm. In swearing an oath, a person of a Christian religion calls upon “God” to witness the veracity of the statement. If it is false, then there would be severe penalties in the afterlife.
Canada and the United States are both countries which embrace Christianity and have instituted swearing upon oath as part of their legal systems.
However, not everyone accepts or believes in the Christian view of “God”. In some cases, they have other religions, profess uncertainty (agnostics) or denial (atheists). In a free society, then these individuals may elect to affirm the truth of the statement.
In both cases of swearing upon oath or affirmation, the individual agrees and accepts the penalties of “perjury” that arise under the criminal law in the event that the statement turns out to be untrue.
Truth is a matter of the belief of the deponent at the time the statement is made.
This leaves it open for:
- A person incorrectly thought a statement was truthful (but, believed it to be so)
- Subsequent knowledge that the statement was untrue
So, the statement was wrong in fact, but, the deponent believed it to be true at the time it was made. If that is the case, then the deponent cannot be convicted of perjury.
The affidavit is made in the presence of a person authorized in law to take affidavits. Sometimes, the person will be an officer of the court, a lawyer, notary or commissioner of oaths. However, in all cases, the person will be authorized by the legal jurisdiction to take affidavits. In doing so, they must explain swearing, affirming and the penalty of perjury.
The word “affidavit” itself originated in the 15th century. It was a latin word, but was not used in ancient Rome.
So, there won’t be any untruths in court anymore! That has to be a good thing! At least, that’s what they thought in the Middle Ages.
Brian Madigan LL.B., Broker