How to administer oaths, affirmations, and solemn declaration in Alberta

Posted on 05. May, 2015 by in Uncategorized

HOW TO ADMINISTER OATHS, AFFIRMATIONS AND SOLEMN DECLARATIONS WITHIN THE PROVINCE OF ALBERTA

Affidavits are documents containing statements that are verified by the oath or affirmation of the person making those statements. An affidavit must be authorized by legislation (a statute or a regulation) which permits or requires the proof of certain facts by way of an affidavit. Statutory declarations are documents containing statements that are verified by the solemn declaration of the person making those statements. A statutory declaration is made pursuant to the Canada Evidence Act or the Alberta Evidence Act and is used in situations where there is no legislative authority for an affidavit.

Both acts prescribe the following form for a statutory declaration: “I, A.B. solemnly declare that (state the fact or facts declared to), and I make this solemn declaration conscientiously believing it to be true and knowing that it is of the same force and effect as if made under oath. Declared before me at this day of , ”

Affidavits and statutory declarations are used for the purpose of establishing legal rights and, if they are not properly made, the legal rights sought to be established may be impaired or destroyed. The importance of affidavits and statutory declarations is reflected in the Criminal Code which provides a maximum penalty of 14 years imprisonment for any person making a false affidavit or statutory declaration. In order for an affidavit or statutory declaration to be legally valid, it is essential that the oath, affirmation or solemn declaration be administered properly. A person administering an oath or affirmation may be called into court to establish that an oath, affirmation or solemn declaration was administered properly by him. It is therefore imperative that the proper procedure be followed on all occasions. The legal validity of an affidavit or statutory declaration will then not be jeopardized, nor will the person who administered the oath or affirmation be embarrassed by failure to recall the procedure used on a particular occasion. As earlier mentioned, the Criminal Code places a high degree of responsibility on that person under section 138 which provides, in part: “Every one who – (a) signs a writing that purports to be an affidavit or statutory declaration and to have been sworn or declared before him when the writing was not so sworn or declared or when he knows that he has no authority to administer the oath or declaration, … is guilty of an indictable offense and liable to imprisonment for a term not exceeding two years.”

It is also considered poor practice for a Commissioner for Oaths to take their spouses oath, affirmation or declaration. The reasoning for this is that sections of the Canada Evidence Act and the Alberta Evidence Act protect spouses from giving evidence against one another and this results in possible problems respecting the proof of affidavits in court and prosecution relating to Criminal Code offences involving perjury and the swearing of false affidavits.

HOW TO ADMINISTER AN OATH TO A PERSON MAKING AN AFFIDAVIT

When a person of the Christian or Jewish faith appears before you to make an affidavit, usually an oath is given. The oath should be administered in the following manner:

1. Ask the person appearing before you whether he is the individual named in the affidavit as the person making the affidavit. If you know the person, it is not necessary to confirm his identity.

2. Ask the person to sign the affidavit. If the affidavit has already been signed, ask the person if the signature on the affidavit is his.

3. Hand the person a Bible or New Testament, or, if the person is of the Jewish faith, an Old Testament. Alternatively, you may ask the person if he desires to swear with uplifted hand, in which case the use of the Bible or Testament may be omitted.

4. Address the person as follows: “Do You swear that the contents of this your affidavit are true. So help you God.”

5. The person responds by saying “I do” while holdings the Bible or the appropriate Testament in his uplifted hand or while holding his hand uplifted.

6. You must then complete the jurat. Section 14 of the Alberta Evidence Act provides that a person is bound by an oath if it has been administered in such form and with such ceremonies as he may declare to be binding. This allows persons who are not of the Christian or Jewish faiths to be sworn in a manner sanctioned by their religion.

WHEN AND HOW TO ADMINISTER AN AFFIRMATION TO A PERSON MAKING AN AFFIDAVIT

When a person appears before you to make an affidavit but objects to giving an oath (being sworn) (a) from conscientious scruples, or (b) on the ground of his religious belief, or (c) on the ground that the taking of an oath would have no binding effect on his conscience, the person may give an affirmation, instead of an oath, and the affirmation has the same force and effect as if the person had taken an oath. The affirmation should be administered in the following manner:

1. Before administering the affirmation, you must amend the words “make oath and say” in the introduction to the affidavit to read “solemnly affirm and declare”.

2. Ask the person appearing before you whether he is the individual named in the affidavit as the person making the affidavit. If you know the person, it is not necessary to confirm his identity.

3. Ask the person to sign the affidavit. If the affidavit has already been signed, ask the person if the signature on the affidavit is his.

4. Address the person as follows: “Do you solemnly affirm and declare that the contents of this your affidavit are true?”

5. The person responds by saying “I do”.

6. You must then certify that the person satisfied you that he was entitled to affirm, which may be done by inserting the following before your signature on the jurat: “I certify that (name of person) satisfied me that he was a person entitled to affirm.” In so satisfying yourself, you need not enquire beyond the person’s verbal statement that he objects to being sworn on one of the grounds listed above.

7. You must then complete the jurat.

HOW TO ADMINISTER A SOLEMN DECLARATION TO A PERSON MAKING A STATUTORY DECLARATION

When a person appears before you to make a statutory declaration, the solemn declaration should be administered in the following manner:

1. Ask the person appearing before you whether he is the individual named in the statutory declaration as the person making the statutory declaration. If you know the person, it is not necessary to confirm his identity.

2. Ask the person to sign the statutory declaration. If the statutory declaration has already been signed, ask the person if the signature on the statutory declaration is his.

3. Address the person as follows: “Do you make this solemn declaration conscientiously believing it to be true and knowing that it is of the same force and effect as if made under oath?”

4. The person responds by saying “I do”.

5. You must then complete the jurat.

YOUR DUTIES IN COMPLETING THE AFFIDAVIT OR STATUTORY DECLARATION

1. Alterations If there are any interlineations, alterations or erasures on an affidavit or statutory declaration (including the jurat), you should place a check mark at the beginning and end of each of the changes and then write your initials beside each change. UNLESS CHANGES ARE AUTHENTICATED BY YOUR INITIALS, THE AFFIDAVIT OR STATUTORY DECLARATION MAY NOT BE ACCEPTED IN COURT PROCEEDINGS.

2. Jurat – Ordinary Form: The jurat is the part of the document which must be completed by you. The ordinary form of jurat for an affidavit is: Sworn (or Affirmed) before me at Province of Alberta, this day of , A Commissioner for Oaths in and for the Province of Alberta

3. Commissioner’s Name and Expiry Date: As a Commissioner for Oaths, you must legibly print or stamp in legible printing your name and if you are appointed under section 6 or 7, the date on which your appointment expires, next to your signature on each affidavit, declaration, affirmation or other document that you sign in your capacity as a Commissioner. Failure to comply with this requirements makes you guilty of an offence and liable to a fine of up to $100. 4.

Exhibits: If the affidavit or statutory declaration refers to other documents that are annexed as exhibits, each exhibit should be marked as follows: This is Exhibit referred to in the affidavit (or statutory declaration) of (name of person) sworn (or affirmed or declared) before me this day of , A Commissioner for Oaths in and for the Province of Alberta

5. Jurat – Where person is blind or illiterate: If the person making the affidavit or statutory declaration is blind or illiterate, you must read the document, or cause it to be read, to the person and then ask the person if he understood what was read to him. You may only administer the oath, affirmation or solemn declaration if you are satisfied that the person has in fact understood what was read to him. In those cases, the ordinary form of jurat must be amended by inserting the following before your signature:

“As (name of person) is blind (or illiterate), (a) this affidavit (or statutory declaration) was read to him in my presence, (b) he seemed perfectly to understand it, and (c) he made his signature (or mark) in my presence.”

6. Jurat – Person who does not understand the English language: If the person making the affidavit or statutory declaration does not understand the English language, a person competent to interpret the contents of the affidavit or statutory declaration must first be sworn using the following oath, or if the interpreter objects to being sworn, an affirmation in similar form may be administered:

“You swear that you well understand (the language of the person), that you will well and truly interpret the contents of this affidavit (or statutory declaration) to (name of person) and that you will well and truly interpret to him the oath (or affirmation or solemn declaration) about to be administered to him. So help you God.” After the interpreter has interpreted the contents of the document, you must administer the oath, affirmation or solemn declaration to the person through the interpreter and the person should respond by saying “I do” through the interpreter. In those cases the ordinary form of jurat must be amended by inserting the following before your signature:

“As (name of person) does not understand the English language, this affidavit (or statutory declaration) was, in my belief, interpreted to him by (name of interpreter) who first swore (or affirmed) that he well understands (the language of the person), that he would well and truly interpret the contents of this affidavit (or statutory declaration) and that he would well and truly interpret the oath (or affirmation or solemn declaration) about to be administered.”

PERSONS WHO ARE COMMISSIONERS EX OFFICIO

By virtue of the Commissioners for Oaths Act, and the Justice of the Peace Act, the following persons are commissioners without having to be so appointed by the Inspector of Legal Offices: (a) a barrister and solicitor of Alberta; (b) a student-at-law under the Legal Profession Act; (c) a full-time commissioned officer in the Canadian Forces; (d) a member of the Legislative Assembly of Alberta; (e) a member from Alberta House of Commons of Canada; (f) a member of the Senate of Canada who at the time of his appointment as a senator is a resident of Alberta; (g) a member of a municipal council in Alberta; (h) a member of a board of trustees of a school district or school divisions in Alberta; (i) a justice of the peace; (j) a police officer as defined in the Police Act; (k) every provincial judge, judge of the Surrogate Court, master in chambers, judge of the Court of Queen’s Bench and judge of the Court of Appeal.

DOCUMENTS TO BE USED OUTSIDE OF THE PROVINCE OF ALBERTA

When an affidavit or statutory declaration is intended to be used in another jurisdiction, the law of that jurisdiction must be determined to ensure the use of formalities that are necessary in that jurisdiction to have the document accepted for use within that jurisdiction. Very often other jurisdictions require that the document be completed by a notary public rather than a commissioner.

POWERS

Commissioner for Oaths must ensure that they restrict their use of the appointment to those powers set out in the Act i.e. administering oaths, taking and receiving affidavits, declarations and affirmations. They may not, as a Commissioner for Oaths perform other actions such a certifying true copies, completion of documents etc.

Taken from: Service Alberta

New Notary Public and Commissioner for Oaths rules

Posted on 04. May, 2015 by in Uncategorized

Effective April 30, 2015, there are new rules governing Notaries public and commissioners for oaths in Alberta.  They will now both be governed under the Notaries and Commissioners Act with consequential amendments to the Alberta Evidence Act and the Guarantees Acknowledgement Act.

Important Changes:

  • Members of the Law Society of Alberta continue to be Notaries public and commissioner for oaths by virtues of their status.  They are not subject to expiration date rules.
  • All notaries can administer oaths or take affidavits, affirmations or declarations, as well as certify true copies and witness or certify the execution of documents. Only those notaries who are also lawyers or judges may witness, certify or attest deeds, contracts and commercial instruments which they have prepared, or in respect of which they have provided legal advice.
  • A notary public must affix a seal to all documents, whether for use in Alberta or out of province. The seal must bear the notary’s name and the words “Notary Public” and “Province of Alberta”.
  • A notary public is required to endorse on the document the notary’s name, position and, if appointed, the date on which the appointment expires.

There is also a code of conduct applicable to Notary Public in Alberta:

  • The codes do not conflict with codes of conduct of other professions, and recognize that notaries and commissioners must also comply with other laws and directives that govern them.
  • Notaries and commissioners are to discharge all of their responsibilities with integrity, courtesy and professionalism, and in an ethical and responsible manner.
  • There is an obligation to hold confidential information in strict confidence, except as required to perform the notary’s or commissioner’s services, or as otherwise required by law.
  • Notaries and commissioners must not, among other things, notarize/commission or participate in the preparation or delivery of a document that is false, incomplete, misleading, deceptive or fraudulent. Furthermore, they must not participate in the preparation of a document that has the appearance of being issued by a court or other legitimate authority when it is not, or a document that is otherwise lacking valid legal effect.

Changes to the Guarantees Acknowledgement Act

A guarantor must appear before an active practicing lawyer to acknowledge that they have executed the guarantee. Non-lawyer notaries and students-at-law may not perform this function. The guarantor must sign a certificate in prescribed form in the presence of the lawyer. (Guarantees Acknowledgment Act – Section 3 Form) The lawyer must be satisfied that the guarantor is aware of and understands the contents of the guarantee before issuing the prescribed form of certificate.

Lawyers should clarify whether they are simply satisfying themselves that the guarantors are aware of and understand the contents of the guarantees, or whether they are actually providing more extensive advice with regard to the legal effect of the guarantee. Lawyers presiding over the execution of guarantees or providing legal advice should consider the existence and impact of any potential conflicts of interest which may arise from the joint representation of lenders and borrowers, or from the joint representation of borrowers and guarantors.  There are also restrictions on lawyers providing personal guarantees of client loans in Alberta’s Code of Conduct. Lawyers should refer to Code of Conduct commentary governing lawyers’ personal business dealings with clients.

Taken from: Alberta Law Society Practice Advisor article

Apostille and Authentication of Documents

Posted on 17. Jan, 2012 by in Uncategorized

PLEASE CHECK WITH THE GOVERNMENT, EMBASSY, INSTITUTION, PERSON ETC. TO WHICH YOU ARE REQUIRED TO PROVIDE THE DOCUMENT FOR THEIR SPECIFIC REQUIREMENTS.  YOU MUST SATISFY THEIR REQUIREMENTS AND FOLLOW THEIR INSTRUCTIONS.

What is an Apostille?

An Apostille is a certificate, issued by a regulating agency, that can be used to prove the authenticity of a notary public’s signature and/or seal.  The concept comes from The Hague Convention of 5 October 1961 Abolishing the Requirement of Legalization for Foreign Public Documents. This treaty was drawn up to simplify the process of certifying foreign public documents.

If a document is drawn up in one participating country and needs to be used in another, a notary public’s certification is all that is needed to permit that document to be used in the other country, provided that the Notary Public has certification by Apostille.

Each participating country designates the people or agencies with authority to issue Apostille certification (in the United States, it is usually the Secretary of State of whatever State the Notary Public practices in).

Is There Apostille Certification in Canada?

No. Apostille certificates can only be issued in countries that have signed and ratified the Hague Convention of 5 October 1961.  Canada was not a signatory to this Convention, and therefore Apostille certification is not possible for Canadian public documents.

What is the Canadian Equivalent of Apostille?

Because Canada does not have Apostille certification, public documents must undergo a three step process of 1.notarization, 2.authentication, and 3.legalization in order to be usable in foreign countries.

Notarization, Authentication, and then Legalization is a process designed to relieve foreign authorities from the burden of having to verify the authenticity of the documents with which they are presented.  In other words, the person who wants to use a Canadian public document outside Canada must have some official proof from that the document is an authentically legal document before he or she presents it to a foreign court or other authority.

The authentication process is carried out by a designated government authority.  In Canada, the primary federal authority designated to carry this out is the Authentication and Service of Documents Section (JLAC) of the Department of Foreign Affairs and International Trade. In Ontario, authentication is done by the Official Documents Services of the Management Board Secretariat.

The rules of authentication and legalization, vary depending on the country and the situation.

You should check with the consulate or embassy of the country to which you are traveling, and find out what documents you need to bring with you and what kind of authentication they require.   Here is a sample of what one consulate requires from people who are going to Mexico to get married: an authenticated and legalized birth certificate, and (if one of the parties was married before) an authenticated and legalized divorce certificate.

You should also find out whether the country will require a particular document to be translated into its own language, in which case you will have to notarize a translated version of the document and get that translated document authenticated and legalized as well.

You should also, find out, from the consulate or embassy, whether the country requires authentication by a federal or provincial authority.

The Canadian government authority will then certify the authenticity of the notary public’s seal and signature by comparing the seal and signature to the seal and signature that they have on file for that particular notary public.

The authority will issue a certificate of authentication for the document, which is attached to the document to prove that the notarization is genuine.

Next comes the process of legalization. You must present the authenticated document to the consulate or embassy of the country where you intend to use the document, along with the certificate of authentication, and any such application forms and proofs of identity as the consulate or embassy may require.

The consulate or embassy certifies its recognition of the fact that the document is an authentic, usable legal document, it is eligible for use in that country.

Once all this is done, you will have the original document, the certificate of authentication, and the certificate of legalization.  All of these must be in your possession for the document to be usable in the country to which you are traveling.

What does it mean to take an oath or affirmation?

Posted on 01. Mar, 2011 by in Uncategorized

What does it mean to take an oath or affirmation?

In order for an affidavit or statutory declaration to be legally valid, the oath, affirmation or solemn declaration must be administered properly.

The Commissioner of Oaths or Notary Public will ask you the following:

If an Oath is given: Raise your right hand, “Do you swear the contents of this Affidavit are true? So help you God.” You respond with “I do.”

If an affirmation is given: “Do you solemnly affirm and declare the contents of this Affidavit are true?” You respond with “I do.”

If a statutory declaration is given: “Do you make this solemn declaration conscientiously believing it be true and knowing that it is of the same force and effect as if made under oath?” You respond with “I do.”

There is a penalty of imprisonment under the Criminal Code for any person making a false Affidavit or statutory declaration.

Edmonton Notary Public and Commissioner for Oaths | 780-756-0084

© Giardino Law. All rights reserved. The content on this web site is provided for general information purposes only and does not constitute legal or other professional advice or an opinion of any kind. Users of this web site are advised to seek specific legal advice by contacting Giardino Law (or their own legal counsel) regarding any specific legal issues. Giardino Law does not warrant or guarantee the quality, accuracy or completeness of any information on this web site. The articles and posts published on this web site are current as of their original date of publication, but should not be relied upon as accurate, timely or fit for any particular purpose.

What is a Statutory Declaration?

Posted on 01. Mar, 2011 by in Uncategorized

What is a Statutory Declaration?

A Statutory Declaration is a document containing statements that are verified by the solemn declaration of the person making those statements. A statutory declaration is used in situations where there is no legislative authority for an affidavit.

Edmonton Notary Public and Commissioner for Oaths | 780-756-0084

© Giardino Law. All rights reserved. The content on this web site is provided for general information purposes only and does not constitute legal or other professional advice or an opinion of any kind. Users of this web site are advised to seek specific legal advice by contacting Giardino Law (or their own legal counsel) regarding any specific legal issues. Giardino Law does not warrant or guarantee the quality, accuracy or completeness of any information on this web site. The articles and posts published on this web site are current as of their original date of publication, but should not be relied upon as accurate, timely or fit for any particular purpose.

What is an Affidavit?

Posted on 01. Mar, 2011 by in Uncategorized

What is an Affidavit?

An Affidavit is a document containing statements that verified by the oath or affirmation of the person making those statement. An affidavit must be authorized by legislation that allows or requires proofs of certain facts by way of an affidavit. An Affidavit is sworn before a Commissioner for Oaths or Notary Public.

Edmonton Notary Public and Commissioner for Oaths | 780-756-0084

© Giardino Law. All rights reserved. The content on this web site is provided for general information purposes only and does not constitute legal or other professional advice or an opinion of any kind. Users of this web site are advised to seek specific legal advice by contacting Giardino Law (or their own legal counsel) regarding any specific legal issues. Giardino Law does not warrant or guarantee the quality, accuracy or completeness of any information on this web site. The articles and posts published on this web site are current as of their original date of publication, but should not be relied upon as accurate, timely or fit for any particular purpose.

How do I get a notorized document “Authenticated”?

Posted on 01. Mar, 2011 by in Uncategorized

How do I get the document “Authenticated”?

Once the Notary Public has signed your document, some governments or organizations want the Notary Public’s authority to be “authenticated”.  You do this by taking the original signed document to:

Deputy Provincial Secretary’s Office
Room 111, 9833 109 Street
Edmonton, Alberta, T5K 2E8

There is a $10.00 charge per document.  Call Administrator, Official Documents and Appointments at 780-427-5069 (dial 310-0000 for toll free service in Alberta) for more information.

Edmonton Notary Public and Commissioner for Oaths | 780-756-0084

© Giardino Law. All rights reserved. The content on this web site is provided for general information purposes only and does not constitute legal or other professional advice or an opinion of any kind. Users of this web site are advised to seek specific legal advice by contacting Giardino Law (or their own legal counsel) regarding any specific legal issues. Giardino Law does not warrant or guarantee the quality, accuracy or completeness of any information on this web site. The articles and posts published on this web site are current as of their original date of publication, but should not be relied upon as accurate, timely or fit for any particular purpose.

What is a Notary Public?

Posted on 01. Mar, 2011 by in Uncategorized

What is a Notary Public?

A Notary Public can take your oath, declaration or affirmation when you sign an affidavit or a statutory declaration. If the Affidavit or Statutory Declaration is to be used outside of Alberta, you will likely need to take the oath or affirmation before a Notary Public.A Notary Public can also notarize or certify copies of documents as true copies and issue certificates under the Alberta Guarantees Acknowledgment Act.

The Alberta Notaries Public Act sets out the rules regarding Notary Publics.

Edmonton Notary Public and Commissioner for Oaths | 780-756-0084

© Giardino Law. All rights reserved. The content on this web site is provided for general information purposes only and does not constitute legal or other professional advice or an opinion of any kind. Users of this web site are advised to seek specific legal advice by contacting Giardino Law (or their own legal counsel) regarding any specific legal issues. Giardino Law does not warrant or guarantee the quality, accuracy or completeness of any information on this web site. The articles and posts published on this web site are current as of their original date of publication, but should not be relied upon as accurate, timely or fit for any particular purpose.

What is a Commissioner for Oaths?

Posted on 01. Mar, 2011 by in Uncategorized

What is a Commissioner for Oaths?

A Commissioner for Oaths is a person authorized to take your oath, declaration or affirmation when you sign an affidavit or a statutory declaration. A Commissioner for Oaths does not certify that the statements being made in the affidavit or statutory declaration are true, but only certifies that an oath or affirmation has been administered properly. If the Affidavit or Statutory Declaration is to be used outside of Alberta, you will likely need to take the oath or affirmation before a Notary Public.

The Alberta Commissioner for Oaths Act sets out the rules regarding Commissioner for Oaths.

Edmonton Notary Public and Commissioner for Oaths | 780-756-0084

© Giardino Law. All rights reserved. The content on this web site is provided for general information purposes only and does not constitute legal or other professional advice or an opinion of any kind. Users of this web site are advised to seek specific legal advice by contacting Giardino Law (or their own legal counsel) regarding any specific legal issues. Giardino Law does not warrant or guarantee the quality, accuracy or completeness of any information on this web site. The articles and posts published on this web site are current as of their original date of publication, but should not be relied upon as accurate, timely or fit for any particular purpose.