What is a Commissioner for Oaths

A Commissioner for Oaths (sometimes also called a Commissioner of Oaths) is a person given legal authority to administer oaths and solemn affirmations, and to witness the signing of affidavits and statutory declarations by affiants or deponents.

Each province and territory in Canada has some form of provincial legislation authorizing the appointment of and setting out the powers of Commissioner for Oaths. In Newfoundland and Labrador, the governing legislation is the Commissioners for Oaths Act, RSNL 1990, c C-25.

The Newfoundland and Labrador Provincial Government maintains its own FAQ on Commissioners for Oaths.

What can a Commissioner for Oaths Do?

Pursuant to section 2 of the Act, a duly authorized Commissioner for Oaths can “. . . administer oaths and take and receive affidavits, declarations and affirmations within the province.”

In day-to-day practice, what this amounts to is that if a person needs certain types of documents “witnessed”, a properly empowered Commissioner for Oaths in the province can administer an oath or solemn affirmation and witness a signature on forms of affidavits, declarations, deeds of conveyance, powers of attorney, or other instruments, generally for use in the province.

For example, a duly appointed and empowered Commissioner for Oaths might administer and oath and witness a signature to an affidavit for use in a court proceeding, witness a signature on a deed of conveyance for registration in the provincial Registry of Deeds, or administer a solemn affirmation and witness a statutory declaration made by a director of a company for registration in the provincial Registry of Companies. In any case these are documents whose contents are meant to be truthful and to be relied upon by others.

A properly administered oath or affirmation requires confirming the identity of the affiant or deponent and having them swear to or solemnly affirm the truth of their statements, and in a written instrument will contain a jurat next to the signature of the person making the document or statement, which might be worded something like this: “Sworn before me, at the City of Corner Brook, in the Province of Newfoundland and Labrador, on this 13th day of July, Two Thousand and Twenty-one”, followed by the Commissioner’s signature and stamp.

Under Part V of the Criminal Code of Canada, “Offences Against the Administration of Law and Justice”, section 131(1) states that “every one commits perjury who, with intent to mislead, makes before a person who is authorized by law to permit it to be made before him a false statement under oath or solemn affirmation, by affidavit, solemn declaration or deposition or orally, knowing that the statement is false.” Perjury is treated seriously and is a straight indictable offence, and while it has no minimum sentence carries a maximum sentence of 14 years in prison (section 132), unless “. . . made by a person who is not specially permitted, authorized or required by law to make that statement”, in which case the maximum sentence is (still) 2 years in prison.

What can’t a Commissioner for Oaths Do?

They can’t do magic. More specifically, they can’t, under the auspices of their office, do anything outside the four corners of the powers conferred by the Act.

For example, a Commissioner for Oaths can’t enhance the quality or effect of document that already exists. That is, taking a “legal” document, such as a purported form of last will, bequest, conveyance, bill of sale, or any other document, to ask a Commissioner for Oaths to merely affix their signature and stamp to it, AFTER it has already been written and signed, in an effort to add an air of legitimacy or enhanced “legality”, is nonsensical. A layperson might be forgiven for thinking otherwise. A duly appointed Commissioner for Oaths who agrees to participate in anything of the sort is at best ignorant and/or negligent, and at worst prepared to participate in frauds, and in either case should likely have their appointment revoked with a view to protecting the public interest.

Commissioners for Oaths also cannot participate in producing an affidavit or statutory declaration if they know the contents being deposed to to be false. Doing so is effectively participating in perjury. They also cannot sign a document as a “witness” that hasn’t actually been sworn or declared before them. Section 138(1) of the Criminal Code makes this a separate and specific offence.

Improperly prepared or witnessed documents may be legally ineffective in any case, which is a problem if you are a person hoping to rely on one. In Archibald v Hubley, (1890), 18 SCR 116, which was a case about the effectiveness of a Bill of Sale supported by a faulty affidavit (and which ultimately turned on other issues), Ritchie SCJ, observed that in a number of prior cases the omission of the words “before me” in a jurat, or the omission of a date, were both “fatal” defects.

What is the Difference between a Commissioner for Oaths and a Notary Public?

There is a good deal of overlap between the functions and powers of a Commissioner for Oaths and those of a Notary Public. Both are able to administer oaths or affirmations, or to accept affidavits or declarations. But one of the fundamental practical differences is that documents or instruments witnessed by a Commissioner for Oaths are typically intended for use and effective only within the province. An sworn or affirmed affidavit, declaration, or instrument intended to be relied on outside the jurisdiction will usually require the services of a notary. A notary public may also be called upon to create certified copies of documents, which Commissioners for Oaths are not specifically empowered to do under the Act.

Who can be a Commissioner for Oaths?

Pursuant to section 3 of the Act, “The Minister of Justice may appoint . . .” more or less any person to be a Commissioner for Oaths at the minister’s discretion. In practice, there is an application process and you have to say why you are seeking the appointment (e.g. in connection with the applicant’s employment as, e.g., a legal assistant or a bank officer), and provide references. These types of appointments are limited in time and usually expire after five years, subject to renewals.

In addition to persons explicitly appointed as Commissioners for Oaths by the Minister, pursuant to the Act certain other persons are empowered to act as Commissioners for Oaths in Newfoundland and Labrador in connection with or by virtue of some other office (e.g., licensed barristers, sitting Members of the House of Assembly, and sitting mayors of municipalities in the province).

Can Commissioners for Oaths Charge Fees?

Historically a Commissioner for Oaths could not charge a fee for service. Typically, their service was rendered as part of their employment or office (e.g. as a public servant, or commissioned bank official, acting in the course of their employment). Since an amendment in 2010, section 14 of the Act says that “The minister may set fees that a commissioner for oaths may charge for exercising a power given to [them] . . .”, but as at the time of writing there were no regulations in force under the Act.

Commissioners for Oaths properly can’t charge for providing legal services or advice (such as, e.g., preparing a form of last will or a land conveyance), unless they are also authorized to practice law or fit into one of the exemptions under the Law Society Act, 1999, SNL 1999, c L-9.1 (such as an official at the provincial Crown Lands agency preparing a form of land grant, or a licensed real estate agent preparing a purchase and sale agreement).

Where can I find a Commissioner for Oaths in Newfoundland and Labrador?

Depending on your needs, you may be able to easily locate a Commissioner for Oaths in connection with whatever document or instrument you need witnessed. Most provincial departments or public agencies that regularly require affidavits or declarations from the public have employees appointed by the province for that purpose. For example, if you need an affidavit witnessed in connection with an application to a health authority, the health authority itself will likely have employees empowered to act as Commissioners for Oaths for that purpose (simply ask them). Many professional offices (accountants, doctors and other medical professionals, and of course lawyers), will also have staff who have been appointed to act as Commissioners for Oaths in connection with their employment.

If you are having trouble finding a commissioner for oaths near you and you need help locating a commissioner, most lawyers’ offices will be able to help you either by providing the service themselves or pointing you to someone who can.

If you need a Commissioner for Oaths in Corner Brook or western Newfoundland and Labrador, or if you need a notary public or other legal services, feel free to contact our office to discuss.

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