Legal Requirements for an Affidavit

  1. Legal Standards for Affidavits in Canada
  2. Mandatory Components of an Affidavit
  3. The Role of Notarization
  4. Veracity and Legal Obligations
  5. Special Considerations in Criminal Cases
  6. The Importance of Legal Advice

With a zero-tolerance policy spurred by the Government of Canada’s family violence initiatives, Greater Toronto Police arrest people on domestic violence charges daily, often based on little pretext. When investigating reports of domestic assault, any reference to the alleged physical force used—even an accidental push—or threats made can lead police to make an arrest.

As a result, the victim/complainant and the alleged offender are often shocked by the potential implications of the arrest. These typically start with no-contact orders that prevent some alleged offenders from returning to their homes, and should the arrest lead to a conviction, the offender faces potential jail time, a criminal record, and other consequences that can prove highly disruptive to the domestic relationship.

As such, many alleged domestic violence victims quickly decide that they want the Crown to drop their criminal charges. However, most people don’t know how or when the Crown drops charges, and those seeking dropped charges for their partners might wonder how to write a letter to the Crown attorney to drop charges in Ontario or consider directly calling the Crown attorney’s office.

Such personal appeals are unlikely to make much headway in influencing the Crown’s decision-making on prosecuting the charges – after all, given the government mandate to vigorously address domestic violence, domestic violence prosecutions are in the public interest, a critical factor the Crown uses in its decision-making. That leaves the Crown to consider the other crucial decision-making factor: is there enough evidence to secure a conviction?

As the alleged complainant of the charges, any actions and statements you made before and during the arrest can be used as evidence. You can add to the evidentiary record your wishes to drop the charges against your partner by submitting an affidavit to Ontario Crown prosecutors. This affidavit of non-prosecution, as it is often called, may encourage the Crown to drop the charges.

We’ve discussed affidavit basics and the process of submitting an affidavit to drop charges in Toronto in another blog article. Here, we will review the legal requirements in Ontario for submitting an affidavit that seeks dropped charges.

Legal Standards for Affidavits in Canada

Commonly used in criminal and civil legal cases, an affidavit is a statement of facts relevant to a legal matter that is submitted to the court to be entered into the case record. The person providing the statement of facts is called the “affiant,” and their statement must be sworn or affirmed to be true in front of a lawyer, notary public, courtroom staff, or a commissioner for taking affidavits. An affidavit is a multi-purpose legal tool that can be used as evidence at trial.

Mandatory Components of an Affidavit

To be considered valid in Ontario legal matters, an affidavit must meet numerous requirements under the law. These include:

  • It must be written in a way that is legible with clear and precise language.
  • The affiant must correctly sign and date the document.
  • The person who administered the oath must correctly sign and date it.
  • It must include the correct names and addresses of the affiant and oath administrator.
  • The affiant must swear before an authorized witness that the affidavit’s contents are true and accurate.
  • The affiant must have direct knowledge about any facts stated in the affidavit and support this with names, dates, and corroborating documents, if applicable.
  • The affidavit must only present the facts—no opinions, conjecture, or conclusions.
  • Any parties named in the affidavit must be correctly identified, with contact information provided.

The Role of Notarization

In addition to the other requirements, your affidavit must be notarized with the seal of the person who administered your oath, verifying your statement as true. The seal signifies that the official taking the oath is authorized by the province to administer oaths and affirmations and certify the execution of documents.

Veracity and Legal Obligations

Lying on an affidavit is the equivalent of, and carries the same potential legal consequences as, lying under oath in Canada – and if you lie under oath in Canada, you can be charged with perjury under Criminal Code Section 131 (1), which can carry up to 14 years imprisonment upon conviction.

Meanwhile, lying to the police is also a criminal offence. If you were to use an affidavit to recant any statements you made to 911 operators or police during the incident leading up to the arrest, police can charge you with public mischief for initially lying to them. Under Section 140 (2) of the Criminal Code, public mischief carries a maximum sentence of five years imprisonment. If you made a sworn statement to the police about the incident, your efforts to recant it in an affidavit could subject you to more severe perjury charges.

An experienced affidavit lawyer can ensure that your legally binding statement in the document conforms with the vital need for veracity and does not raise other legal complications in relation to the case.

Special Considerations in Criminal Cases

You might be wondering why you should submit an affidavit to seek dropped charges if it can’t serve as a recanted statement to help undo the reasons for your arrest.

Perhaps the most meaningful purpose of an affidavit seeking dropped charges is that it can inform the Crown that the complainant does not plan to be a willing witness during the trial. While they can still force testimony by subpoenaing the complainant, an unwilling witness invariably weakens their case.

An effective affidavit can also help a Crown attorney better assess the case from the victim’s perspective, and provide greater insight into the domestic relationship. The affidavit can explain why the complainant does not want to pursue charges, and perhaps convince the prosecutor that a conviction does not serve the public interest.

The Importance of Legal Advice

You can find affidavit templates and affidavit forms that you can fill out on the Internet. However, other than reviewing these forms as affidavit examples, we recommend that you seek criminal lawyer consultation to ensure that your affidavit meets legal requirements while strategically making a compelling argument for dropping the charges.

If you’re looking for a lawyer for an affidavit near you, consult with the skilled criminal lawyers in Scarborough at Vilkhov Law. With extensive domestic assault case experience in the Greater Toronto Area, call for a free, confidential consultation.

By |2024-02-28T15:29:33+00:00February 26th, 2024|Criminal Defence|

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