Oath or affirmation: two ceremonies, one legal weight

Every affidavit reaches the same moment before the officer signs it: the person whose statement it is either swears an oath or makes a solemn affirmation. Some people pause there, unsure whether picking the affirmation makes the document count for less. Ontario law and federal law both answer that question in plain words, and they give the same answer.

Where the rule is written down

The equal weight of an oath and an affirmation is stated in several statutes, each covering a different part of the ground.

Statute and section	What it provides
Evidence Act (Ontario), s. 16	How an oath may be administered, and that the person's own conscience decides the form
Evidence Act (Ontario), s. 17 (1)	A person may affirm instead of taking an oath, with the same force and effect as an oath in the usual form
Evidence Act (Ontario), s. 17 (2)	On an affirmed affidavit, the officer certifies that the deponent was a person entitled to affirm
Canada Evidence Act, ss. 14 and 15	The federal wording of a solemn affirmation, and the officer's duty to permit one on an affidavit
Legislation Act, 2006, s. 95	A requirement in Ontario law to take an oath or be sworn is satisfied by an affirmation or a declaration
Criminal Code, s. 131	Perjury covers a false statement under oath or solemn affirmation alike

Read together, they leave no room for a hierarchy. Section 17 (1) of the Ontario Act was amended in 2009 and now reads simply that a person may, instead of taking an oath, make an affirmation or declaration "of the same force and effect as if the person had taken an oath in the usual form". It attaches no condition and asks for no reason.

What an oath is under Ontario's Evidence Act

The Ontario Act does not set out the words of an oath. Section 16 describes the form instead. Where an oath may lawfully be taken, it may be administered while the person holds a copy of the Old or New Testament, and the person is not required to kiss it.

The same section then hands the decision to the person taking the oath. If they object to being sworn that way, or declare that an oath administered that way does not bind their conscience, it may be administered "in such manner and form and with such ceremonies as he or she declares to be binding". The test is personal, not religious: the statute asks what binds that person, and it does not name any other text or ceremony.

Many people do not want an oath in any religious form. That is the situation an affirmation exists for, and the law does not treat it as the lesser option.

What a solemn affirmation is

An affirmation is a solemn promise to tell the truth, made without reference to any religious belief. The federal statute gives the exact words a witness uses when giving evidence. Section 14 (1) of the Canada Evidence Act reads:

I solemnly affirm that the evidence to be given by me shall be the truth, the whole truth and nothing but the truth.

Section 14 (2) adds that evidence given on that affirmation "shall be taken and have the same effect as if taken under oath".

Section 15 deals with documents rather than spoken testimony. Where a person required or wishing to make an affidavit or deposition does not wish to take an oath, the court, judge or "other officer or person qualified to take affidavits or depositions, shall permit" a solemn affirmation instead, beginning with the words "I, [name], do solemnly affirm". The word chosen is shall. Once the person has said they do not wish to swear, the officer has no discretion to insist on an oath.

The extra line on an affirmed affidavit

Ontario adds one formal step that applies only to written evidence. Under section 17 (2) of the Evidence Act, where the evidence is in the form of an affidavit or written deposition, the person before whom it is taken certifies that the deponent satisfied them that the deponent was a person entitled to affirm. Since the 2009 amendment, section 17 (1) extends that entitlement to any person, so the certificate records the ceremony that took place rather than a test the deponent has to pass.

A declaration reaches the same result by a third route

A statutory declaration involves no oath and no affirmation. The declarant adopts a fixed form of words, set out for Ontario matters in section 43 of the Evidence Act and for federal matters in section 41 of the Canada Evidence Act. Both forms close with the declarant stating that they make the declaration "conscientiously believing it to be true and knowing that it is of the same force and effect as if made under oath".

So the statement about equal weight is printed on the face of every declaration, in the declarant's own voice. Section 95 of the Legislation Act, 2006 then confirms the point from the other direction: where an Ontario statute or regulation requires a person to take an oath or be sworn, that requirement is met by an affirmation or a declaration. How a declaration differs from an affidavit in structure and use is set out in the article comparing the two instruments, and the kinds of declaration that come through this office are listed on the statutory declarations page.

The consequence of a false statement is the same

The clearest test of whether two ceremonies carry the same weight is what happens when someone lies under each of them. The Criminal Code makes no distinction.

• Section 131 (1) defines perjury as making a false statement, with intent to mislead and knowing it is false, "under oath or solemn affirmation, by affidavit, solemn declaration or deposition or orally", before a person authorized by law to permit it to be made.
• Section 131 (2) applies that definition whether or not the statement is made in a judicial proceeding. An affidavit for an insurer or a government programme is covered as fully as one filed in court.
• Section 132 makes perjury an indictable offence carrying imprisonment for a term not exceeding fourteen years.
• Section 15 (2) of the Canada Evidence Act states that a person who makes a solemn affirmation is liable to indictment and punishment for perjury "in all respects as if he had been sworn".
• Section 134 covers a narrower case: a person not specially permitted, authorized or required by law to make a statement under oath or solemn affirmation who makes one anyway, knowing it is false, commits an offence punishable on summary conviction.

None of these provisions changes depending on which ceremony was used. A person who affirms carries the same exposure as a person who swears.

What the officer has to do before signing

The officer may not leave the ceremony out. The Commissioners for Taking Affidavits Act sets duties that apply to every commissioner and notary public administering an oath or declaration in Ontario:

1. Section 9 (1) requires every oath and declaration to be taken in the physical presence of the commissioner, notary public or other person administering it, unless the regulation on remote administration applies.
2. Section 9 (3) requires the officer to satisfy themselves of the genuineness of the deponent's or declarant's signature.
3. The same subsection requires the oath or declaration to be administered "in the manner required by law before signing the jurat or declaration".

Section 10 makes it an offence for a commissioner, notary public or other person to sign a jurat or declaration without the due administration of the oath or declaration. A stamped page with no oath, affirmation or declaration actually taken is not a sworn document at all, whatever its jurat says.

When the ceremony happens over video

Ontario Regulation 431/20, made under that Act, allows an oath or declaration to be taken without the deponent being in the physical presence of the officer, on five conditions:

1. an electronic method of communication lets the participants see, hear and communicate with one another in real time throughout the entire transaction;
2. the officer confirms the identity of the deponent or declarant;
3. a modified jurat or declaration is used, stating that it was administered under the Regulation and giving the location of the officer and of the deponent at the time;
4. for a commissioner whose appointment is limited, the information from the required stamp appears on or in the document;
5. the officer takes reasonable precautions, including ensuring that the deponent understands what is being signed.

Section 2 of the Regulation requires the officer to keep a record of the transaction. The medium changes what the jurat records, not what the oath or affirmation means. Whether a particular receiving body accepts a remotely administered document is that body's own decision.

What the choice between them does not change

Choosing an affirmation over an oath changes a few words spoken at the desk. Everything else about the appointment stays where it was:

• the person still attends and is identified with current government photo identification;
• the document is still signed in front of the officer, not beforehand;
• the contents are still the deponent's own statement, and the officer's signature confirms the ceremony and the signature, not the truth of what is written;
• the receiving institution still decides what it does with the document under its own rules.

Administering oaths, affirmations and declarations is set out on the commissioning page, and an appointment can be arranged through the booking page.