What is a false affidavit charge?

A false affidavit charge is covered under s. 138 of the Criminal Code. It is considered one of the “Offences Against the Administration of Law and Justice.”

A false affidavit charge occurs when a document is presented as a properly sworn affidavit or statutory declaration when it was not.

This can happen in any of the following situations:

  • A person signs a document as the affiant, claiming it was sworn or declared, when it was not.
  • A commissioner signs a document claiming it was sworn or declared in front of them, when it was not.
  • A commissioner signs a document when they know they have no authority to administer the oath or declaration.
  • A person uses, or offers to use, a document claiming to be an affidavit or statutory declaration, when they know it was not properly sworn or declared.

It is not necessary to prove that the contents of such writings are false (unlike with perjury charges), only that it is not what it appears to be, namely a properly sworn or declared document.

Utilizing a false affidavit is a hybrid offence with a Crown election. This means that depending on the circumstances of your case, the Crown can elect to proceed by indictment or summarily.

If an accused is prosecuted by indictment, there is a defence election of court under s. 536(2) of the Criminal Code. In Alberta, this means you can usually choose a trial in the Alberta Court of Justice or in the Court of King’s Bench of Alberta, with or without a jury.

Examples of this offence

Examples that might see a false affidavit charge laid include the following:

  • A lawyer commissions an affidavit that has been previously signed by their client, where that client is not in the presence of the lawyer.
  • A lawyer uses an affidavit in a court proceeding that they know was not sworn in front of a person authorized to commission it.
  • A person creates and swears an affidavit in front of someone who is not authorized to do so, such as somebody pretending to be a lawyer.

Overview of the offence

According to s.138 of the Criminal Code:

138 Every person is guilty of an indictable offence and liable to imprisonment for a term of not more than two years or is guilty of an offence punishable on summary conviction 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,

(b) uses or offers for use any writing purporting to be an affidavit or statutory declaration that he knows was not sworn or declared, as the case may be, by the affiant or declarant or before a person authorized in that behalf, or

(c) signs as affiant or declarant a writing that purports to be an affidavit or statutory declaration and to have been sworn or declared by him, as the case may be, when the writing was not so sworn or declared.

The guilty act (actus reus)

The actus reus for a false affidavit conviction is established by proof beyond a reasonable doubt of the following:

  • The deliberate act of signing, commissioning or using an affidavit when the affidavit was not, by law, sworn properly.

The guilty mind (mens rea)

The mens rea for a false affidavit conviction is established by proof beyond a reasonable doubt of the following:

  • The accused had the intent to falsely sign or commission the affidavit.

Defences to a false affidavit charge

The availability and strength of any defence depends entirely on the evidence against you and the precise details of the allegations.

However, following are some possible defences that may be used when fighting such a charge:

Factual innocence: The affidavit was properly commissioned

The strongest defence against this charge is that the affidavit was properly commissioned by someone who is authorized to do so by law. If you can show that the facts and the evidence support that the subject affidavit was signed while in the presence of a lawyer, notary public, or commissioner for oaths, you may have a strong defence that you were factually innocent.

Factual innocence: Remote declaration

Alberta does not have one law that allows every affidavit to be sworn remotely. Whether an affidavit can be commissioned by video depends on the rules for that type of document. For example, in 2020 the Court of King’s Bench of Alberta issued a notice that allows affidavits used in that court to be commissioned by video, as long as the commissioner follows the steps it sets out. Alberta’s Land Titles forms rules have also been changed to allow remote signing of some documents.

If you have sworn an affidavit remotely, and not in the physical presence of the commissioner, you may have a defence. The commissioner must follow the steps required for that type of document. These usually include being able to see and hear you throughout, and stating in the affidavit that it was sworn by video conference.

Honest but mistaken belief

If you can show that you had an honest but mistaken belief that the affidavit was commissioned properly, you may have a valid defence to a false affidavit charge.

In R. v. Chow, a lawyer was wrong in concluding that a meeting with his client was sufficient to allow the lawyer to later commission an affidavit at his office. While the lawyer was mistaken, the court found that he held an honest but mistaken belief that this was a permissible method of swearing an affidavit. The court found that the accused lawyer did not have the requisite mens rea for the false affidavit charge, and his conviction was quashed.

Identity

Depending on the circumstances of your case, you may be to raise an identity defence. For this defence to be raised successfully, you would argue that the Crown cannot prove, beyond a reasonable doubt, that you were the person who falsely signed or commissioned an affidavit.

Punishments

The Criminal Code provides for a maximum term of imprisonment of no more than 2 years for those convicted of a false affidavit charge. If prosecuted summarily, the maximum punishment is no more than 2 years less a day in jail and/or a $5,000 fine. There are no mandatory minimum penalties for this offence.

Persons found guilty of a false affidavit charge are eligible for sentencing that might include a discharge, suspended sentence, stand-alone fine, custody, custody with a fine, or probation or a conditional sentence order.

FAQs

Providing false information in an affidavit, in signing an affidavit that purports to be properly declared but is not, can result in jail. If the Crown proceeds by indictment, a false affidavit charge carries a maximum sentence of two years. If the Crown proceeds summarily, the maximum jail sentence is 2 years less a day.  You can go to jail for a false affidavit charge, but avoiding that is easier with the help of a criminal defence lawyer.

An affidavit is a written statement that is confirmed by an oath or affirmation. Affidavits are typically used as legal documents, which will contain a sworn statement of facts relevant to a particular legal matter. The contents of an affidavit must be true, accurate, and complete to the best of the knowledge and belief of the person swearing it.

When writing an affidavit, you should include a heading with reference to a court or tribunal, the name of the matter, and a title which indicates that it is your affidavit.

Begin your affidavit by including your name, your relationship to the matter, the date, and the place at which you are swearing it. Then write the ‘body’ of the affidavit, providing your knowledge of the facts in the matter. After the body, include a statement swearing that the contents of the affidavit are true to your best knowledge or belief.

Finally, sign the affidavit in the presence of someone who is, by law, able to commission an affidavit, such as a lawyer, notary public, or commissioner for oaths. The commissioner will also sign the affidavit to certify that it was sworn before them. In Alberta, all practising lawyers can commission affidavits. Other people can be appointed as commissioners for oaths or notaries public under Alberta’s Notaries and Commissioners Act.

Published decisions

A Calgary real estate lawyer was accused of signing and swearing affidavits of individuals when he had not witnessed the person making the affidavit sign it.

A client asked this lawyer whether he could sign and swear affidavits made by the client’s daughter. The plan was for the daughter to sign the affidavits, and then the client would bring the affidavits to the lawyer so that he could sign them. The lawyer agreed to this plan.

The Law Society of Alberta determined that there were reasonable and probable grounds to believe that the lawyer had committed a criminal offence under section 138(a) of the Criminal Code.

The lawyer was ultimately suspended by the Law Society for one month and made to pay over $10,000 in costs.

You can read the full decision here.

The accused in this case was a lawyer who was working on a real estate transaction. The lawyer met with his client in person, and asked his client whether he had witnessed the signing of certain transfer documents that were not present at the meeting. The client confirmed that he had seen the signings, so the lawyer went back to his office and commissioned the documents.

The court in this matter held that the lawyer incorrectly but honestly believed that his actions were permissible. For that reason, the appeal court found that he did not have the requisite mens rea for a false affidavit conviction.

You can read the full decision here.

Two police sergeants were tasked with investigating the murder of a Toronto lawyer. They gathered evidence which led them to believe that a man and his wife were behind the murder. The two created an affidavit in the name of the man’s wife which said that the man had threatened the life of the deceased, as well as her own. The two sergeants attended the man’s home and utilized the affidavit to receive a confession from the man.

The court considered whether the police sergeants using the affidavit to gain a confession was considered using a false affidavit under section 138(b) of the Criminal Code. The court found that this was a “use” of a false affidavit under section 138(b), and this finding was upheld on appeal.

You can read the full decision here.