Affidavit vs Statutory Declaration in BC: Which One Do You Need?

You have been handed a form that says "sworn", "affirmed" or "solemnly declared", and you are not sure what kind of appointment to book. The terms sound interchangeable, and in some ways they are: each is a statement you confirm as true in front of someone authorized to take it.

The difference lies mainly in where the document is going and the words it uses. This guide explains what an affidavit and a statutory declaration are under BC and federal law, who in BC can take them, and how to work out which one you need.

The short answer

Both documents are written statements of fact that you confirm as true in front of a person authorized to take them, such as a lawyer or notary public. The main differences are:

• How you confirm it. You swear or affirm an affidavit. You solemnly declare a statutory declaration.
• Where it is used. Affidavits are the usual way of putting written evidence before a court. Statutory declarations are mostly used outside court, for government applications, insurers, banks, land and estate matters, and other organizations that want a formal statement of facts.

Legally, the two carry the same weight: each is treated as seriously as evidence given under oath.

What an affidavit is

BC's Evidence Act says a person may make a statement of fact, opinion, belief or knowledge by affidavit. You sign it in front of a commissioner for taking affidavits, who confirms your identity and administers an oath or affirmation. The commissioner then signs the jurat, the part at the end that records where and when it was sworn or affirmed.

You do not have to swear a religious oath. The Act lets anyone make a solemn affirmation instead, and a solemn affirmation has the same force and effect as an oath. Affidavits filed in court proceedings have to follow that court's rules on format, numbering and exhibits. If your affidavit is for a family, civil or estate court file, it usually has to be in the court's prescribed form, with documents attached as marked exhibits.

What a statutory declaration is

A statutory declaration (also called a solemn declaration) is a written statement that you declare to be true rather than swear. Both the Canada Evidence Act (section 41) and BC's Evidence Act (section 69) set out the wording. In substance, you declare that the facts are true and that you make the declaration "conscientiously believing it to be true", knowing it has the same legal force as if made under oath.

These declarations can be used to confirm that a document was signed, to confirm the truth of facts, or to confirm a written account. A common example is Immigration, Refugees and Citizenship Canada's Statutory Declaration of Common-Law Union (IMM 5409). Forms prepared by a government department or an organization usually already contain the declaration wording; use the form exactly as it is given to you.

Same consequences if the statement is false

Choosing a declaration instead of an affidavit does not make the statement any less serious. Under the Criminal Code, a person who, intending to mislead, makes a false statement they know is false by affidavit or solemn declaration before someone authorized to take it commits perjury, an indictable offence that can carry imprisonment of up to 14 years.

Read every word before you sign. If something is not accurate, or you only believe it rather than know it, say so before the appointment so the wording can be fixed.

Who can take them in BC

The Evidence Act makes several groups commissioners for taking affidavits because of their office, including practising lawyers, notaries public, judges and court registrars. A commissioner can administer oaths and take affidavits, declarations and affirmations for BC court matters and for any matter where the law permits or requires them. Our guide to notary services in BC explains what a lawyer acting as a notary can sign, certify and witness.

If you are outside BC, the Act also recognizes affidavits and declarations made before certain officials elsewhere, including a notary public acting within their authority and Canadian diplomatic and consular officers. Read signing BC legal documents from outside Canada before you book abroad.

How to tell which one you need

• Going to a court? You almost certainly need an affidavit in that court's form.
• The form says "swear" or "affirm"? It is an affidavit. You can affirm instead of swearing.
• The form says "solemnly declare"? It is a statutory declaration.
• No form, just a request for "a sworn statement"? Ask the organization what it will accept, and whether it has its own form, before you draft anything.

Whatever the document, do not sign it before your appointment. The commissioner must see you sign, and needs to see valid identification. Bring the full unsigned document, every exhibit or attachment, and any instructions from the organization that asked for it.

Have a form that needs to be sworn or declared? Book a signing appointment

Our notary services can review the document with you, confirm you have the right form and wording, and commission your affidavit or take your statutory declaration.

Call 604-259-2844 or send us a message to arrange a consultation at our Vancouver office.