There has been a bit of discussion on a couple of Canadian lists lately of the appropriateness of commissioning an affidavit (or declaration or affirmation) by video link or by Skype (which is just another form of video, at least for the purposes of this question, is it not?).
Ontario law, and most other Canadian common law at least, requires that the person making the affidavit must be “in the presence of” the person commissioning it (notary, lawyer, commissioner for taking affidavits). See Commissioner for Taking Affidavits Act (Ontario) s. 9.
Question: Is one sufficiently “in the presence” of the commissioner if the commissioner can see and hear the affiant/deponent by video link or by videophone link as with Skype video?
Affidavits taken by telephone alone (i.e. voice connection) have been held in a New York court not to have been properly done.
Consider also the language of s. 138 of the Criminal Code of Canada:
Every one 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 …
is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years
So: not just “presence” but “before him” [no doubt 'or her'] – how virtual may that be?
Second question: If you believe that a video appearance is not sufficient to support commissioning, should it be? Are there safeguards required, and do we want to start fine tuning a well-known requirement to adapt it to the electronic age?
Implementation question: How well would the commissioner have to be able to see the document signed by the affiant in order to know that what he/she later got on his/her desk for commissioning was the same document?
Question for advanced students: what difference would or should it make if the affiant and the commissioner were in different jurisdictions? Would it matter in which jurisdiction the affidavit was to be used?