Serments et affirmations affirmatives

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Cette page a été mise à jour ou révisée de manière substantielle pour la dernière fois January 2020. (Rev. # 2157)

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General Principles

Common law requires all witnesses to take an oath to solemnify the evidence given. The purpose of "the law in requiring an oath is to get at the truth relative to the matters in dispute by getting a hold on the conscience of the witness."

Person Administering an Oath

Who may administer oaths

13 Every court and judge, and every person having, by law or consent of parties, authority to hear and receive evidence, has power to administer an oath to every witness who is legally called to give evidence before that court, judge or person.
R.S., c. E-10, s. 13.

– CEA

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Affirmations

The goal of an oath may also be accomplished by allowing people to opt for taking an affirmation of solemnity. This is provided under section 14 of the Canada Evidence Act (CEA) as well as under most provincial evidence acts.

Section 14 states:

Solemn affirmation by witness instead of oath

14 (1) A person may, instead of taking an oath, make the following solemn affirmation:

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

Effect

(2) Where a person makes a solemn affirmation in accordance with subsection (1) [solemn affirmation by witness instead of oath], his evidence shall be taken and have the same effect as if taken under oath.
R.S., 1985, c. C-5, s. 14; 1994, c. 44, s. 87.

– CEA

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Persons to Administer Oaths

Under s. 13 of the Evidence Act, all courts and judges may administer oaths. Anyone else may administer oaths where they are empowered to take evidence or where it is by consent of the parties.

Young Accused

For proceedings under the Youth Criminal Justice Act, s. 151 states the requirements before a child or youth can give evidence before a Youth Court justice:

Evidence of a child or young person

151 The evidence of a child or a young person may be taken in proceedings under this Act only after the youth justice court judge or the justice in the proceedings has

(a) if the witness is a child, instructed the child as to the duty to speak the truth and the consequences of failing to do so; and

(b) if the witness is a young person and the judge or justice considers it necessary, instructed the young person as to the duty to speak the truth and the consequences of failing to do so.

– YCJA

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Administering Oaths and Affirmations for International Audio-Video Link Evidence

Requirements for Oath or Affirmation

Section 714.5 sets out the requirements for taking evidence by video or audio when the witness is out of the country.

Oath or affirmation

714.5 The evidence referred to in section 714.2 [video links, etc. – witness outside Canada] or 714.3 [audio evidence — witness outside Canada], that is given by a witness who is outside of Canada, shall be given

(a) under oath or affirmation in accordance with Canadian law;

(b) under oath or affirmation in accordance with the law in the place where the witness is physically present; or

(c) in any other manner that demonstrates that the witness understands that they must tell the truth.

1999, c. 18, s. 95; 2019, c. 25, s. 290.

[annotation(s) ajoutée(s)]

– CCC (CanLII), (Jus.)

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The oath or affirmation must either formally meet the requirements of Canadian law or the foreign law where the witness is situated. Alternatively, it can still be accepted so long as the court is satisfied that the "witness understands that they must tell the truth".

Other laws about witnesses to apply

714.6 When a witness who is outside Canada gives evidence under section 714.2 [video links, etc. – witness outside Canada] or 714.3 [audio evidence — witness outside Canada], the evidence is deemed to be given in Canada, and given under oath or affirmation in accordance with Canadian law, for the purposes of the laws relating to evidence, procedure, perjury and contempt of court.

1999, c. 18, s. 95; 2019, c. 25, s. 290.

– CCC (CanLII), (Jus.)

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Oaths taken abroad

53. Oaths, affidavits, solemn affirmations or declarations administered, taken or received outside Canada by any person mentioned in section 52 [list of Cdn government and judicial officials] are as valid and effectual and are of the like force and effect to all intents and purposes as if they had been administered, taken or received in Canada by a person authorized to administer, take or receive oaths, affidavits, solemn affirmations or declarations therein that are valid and effectual under this Act.
R.S., c. E-10, s. 50.
[annotation(s) ajoutée(s)]

– CEA

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See Also

• Competence of Children and Witnesses of Diminished Capacity