Book Review: The Law of Affidavits

Several times each month, we are pleased to republish a recent book review from the Canadian Law Library Review (CLLR). CLLR is the official journal of the Canadian Association of Law Libraries (CALL/ACBD), and its reviews cover both practice-oriented and academic publications related to the law.

The Law of Affidavits. By John Douglas Shields. Toronto: LexisNexis Canada, 2023. 255 p. Includes bibliographic references, table of cases, and index. ISBN 9780433525004 (softcover) $140.00.

Reviewed by Laura Lemmens
Retired Librarian
Edmonton, Alberta

The Law of Affidavits is the first and only text dedicated to evidence and the drafting of affidavits. Shields uses his experience as a long-time litigator to review the creative process of drafting affidavits based on British Columbia’s rules of procedure and evidentiary laws. The expectation is that the rules regarding affidavits are similar in all Canadian jurisdictions. Shields emphasizes the importance of evidence and the use of affidavits, as most disputes do not go to trial.

Shields has law degrees in both common and civil law from McGill University, has worked at a boutique law firm in British Columbia, and has taught several continuing legal education courses. Shields has also written or co-written several works related to civil chambers, small claims practice, and affidavits, and has appeared before several levels of court in multiple Canadian jurisdictions.

Shields’s primary message is that the affiant needs to have the knowledge and authority to swear or affirm the facts related to the case, and all attached exhibits must be correctly identified. As Shields continuously emphasizes the importance of facts throughout the text, readers may recognize his final comment as he quotes Dan Aykroyd’s portrayal of Joe Friday in the 1987 film version of Dragnet: “Just the facts, ma’am.”

Two key subjects of focus are admissibility and exhibits. The text practically and methodically outlines the process of drafting a proper and valid affidavit with exhibits. It includes an introduction to affidavits, formalities, obligations of counsel, withdrawal or amendment, general admissibility, and inadmissibility. Other topics include the role of the Court; affidavits sworn by lawyers and legal staff; language issues, including translation; striking out an affidavit; cross-examination; family and criminal law affidavit considerations; exhibits; self-represented litigants’ affidavits; costs; and practical resources.

The Law of Affidavits discusses and provides many case law citations and includes some bibliographic references. Serving a comprehensive purpose, it similarly discusses formatting an affidavit, requirements for an affiant and the jurat, swearing or affirming affidavits, what statements of evidence can be made in an affidavit, and whether an affidavit may be withdrawn or amended. In addition, it contains practical lists of what to include in drafting an affidavit. One of the last chapters details several checklists that can be employed in the creation of a proper affidavit.

The analysis of the admissibility of evidence encompasses nearly half the text. Shields examines admissibility in general, as well as hearsay, inadmissible language, embellishment, propaganda, typographical errors, jurisdictional swearing issues, non-prejudicial error by counsel, use of wording, scandalous or offensive language that might be allowed, plus other possibilities that may or may not be allowed.

The topic of exhibits comprises the second largest discussion in the title, including what constitutes an exhibit, as well as how exhibits are to be indicated, marked, and included or otherwise made available.

This text is the only resource on this topic suitable for the practitioner, either novice or senior. Administrative staff may also use it as a resource in preparing an affidavit based on counsel’s instructions. The text contains no footnotes; however, cases are referenced throughout. The table of cases does not include case citations, only the style of cause and the page number indicating where the case is referenced in the book.

The Law of Affidavits is a valuable text for the subject area, and it would be a welcome addition to any civil procedure or practice collection. Its plain language and straightforward organization would assist a wide range of readers, from staff to articling students to senior counsel. Librarians, novice lawyers, and more practiced lawyers will appreciate this text as a must-have for any practice dealing with the preparation of affidavits.