Duhaime's Law Dictionary


Affidavit Definition:

A written statement of fact which has been verified as truthful by the mechanism of a solemn process before another party.

Related Terms: Affiant, Hearsay, Deponent, Jurat, Averment, Oath, Examination on Affidavit, Joint Affidavit, Certified Affidavit, Witness, Evidence

An affidavit may also be described as a written statement of fact which before being signed, the person signing takes an oath that the contents are, to the best of their knowledge, true. The solemn procedure that verifies the written statements as fact as regards to the affiant is variably called an oath, or to swear or to be sworn.

Done properly, the affidavit has the descriptive elements at the top, descriptive of the legal matter in which it is being tendered, also known in litigation as the style of cause.

The person making the statement (the affiant) starts off his or her statement with their name, occupation and address followed by the arrangement of facts usually, but not always, chronilogically.

At the foot of the affidavit, usually to the right, is the signature block of the affiant, endorsed only after the official officer for taking oaths, such as a commissioner of oaths, that he or she has verified that the affiant understands his or her affidavit, that she or he is the person making the affidavit, followed by as series of ritualistic words as to the truthfulness of the affidavit such as "Do you swear that the contents of this affidavit are true, so help you God", although there are several variations of this wording.

The affidavit is then perfected by the signature of the person taking the oath, called the jurat, which also states the place and date of the taking of the affiant's oath.

Most Court business is transacted on the basis of evidence in the form of affidavits, not witnesses giving oral testimony in Court.1

The following description of an affidavit is from an American case, and the words of Justice Graham of the Court of Customs and Patent Appeals in the 1934 case, Amtorg Trading Corporation v. United States.

"A written or printed declaration or statement of facts, made voluntarily, and confirmed by the oath or affirmation of the party making it, taken before an officer having authority to administer such oath."

In R v Nichols, Justice Wachowich of the Alberta Supreme Court adopted these words:

"An affidavit is defined as an oath in writing signed by the party deposing, sworn before and attested by him who hath authority to administer the same."

The statement is intended to become evidence before a Court.

It is also certified by a notary or lawyer or some other judicial officer that can administer oaths, to the effect that the person signing the affidavit was under oath when doing so (as is shown on the bottom of the sample affidavit form pictured below).

These documents carry great weight in Courts to the extent that judges have been known to (albeit rarely) accept an affidavit instead of the testimony of the witness.

But, using words adopted by Justice Fraser said in Pierre v Lil'Wat Nation:

"Truth will out, even in an affidavit, reflecting the universal understanding of those with courtroom experience that the affidavit is an effete vehicle, when compared with oral testimony in court, for the proper determination of factual disputes."

An affidavit can even bring evidence to the Court in spite of the deponent's death before trial.

affidavitIn Leclerc, a 1985 and 2-1 split Ontario court of appeal decision, this was the issue before the Court.

In citing other, older and some British decisions, the judge said:

"An affidavit given on an interlocutory motion was received into evidence at trial where the deponent had died prior to trial even though he had not been cross-examined. The evidence of (a) defendant taken on a reference, who had died prior to cross-examination, was admissible."

"I do not reach my decision without some hesitation because certain paragraphs in the affidavit appear to contain inadmissible evidence.

"It must be remembered that the application was to have the affidavit received in evidence. It was not to have the contents accepted by the court.

"The affidavit would not tie the trial judge's hands. It will be up to him to sort out what constitutes properly admissible evidence and what should be rejected. Should he decide to accept parts of the affidavit, it will still be up to him to decide what weight that evidence should be given."

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