Friday, August 1, 2014
Justices of the Peace
For readers located at various Commonwealth countries, or those of you who had documents issued by officials from Commonwealth countries, no doubt you will have come across a title called 'Justice of the Peace' who can notarize documents and take oaths.
Justices of the Peace, depending on the jurisdiction, have different education, roles and powers. For example, in Australia, JPs can notarize documents and witness oaths. They are not legally trained, and do not function in the justice system. On the other hand, New Zealand JPs play an important judicial role in handling bail, hear minor cases, and conduct preliminary hearing in more serious cases. Similarly in Scotland, JPs are lay person trained to hear traffic and minor criminal matters.
In Canada, JPs also have different roles depending on the provincial legislation. In Ontario, JPs are judicial officers whom preside over provincial offence cases, issue warrants and conduct bail hearings. In Nova Scotia, JPs are divided into three separate subgroups, each with its own powers and role. They can act as marriage officiant, warrant issuer, or Commissioner for taking oaths depending on their appointment.
In British Columbia, JPs are appointed under the Provincial Court Act. Just like Ontario, JPs are divided into three subgroups: Justice of the Peace Adjudicators (formerly known as Judicial Justices of the Peace or JJPs), Judicial Case Managers and Court Services Justices of the Peace. JJPs have the jurisdiction to hear civil cases valued of up to $5,000, issue warrants/subpoenas and preside over traffic/bail hearings. JJPs are legally trained as lawyers. On the other hand, JCMs and CSJPs are employees of the judiciary who are given limited power to handle non-contested matters. JPs are considered to be judicial officers, and have peace officers powers while acting in their capacity.
JPs in BC are also Commissioner for taking Affidavit of BC, by reason of office. However, they are generally disallowed from swearing oaths on matters not related to court proceedings before them.
You will not find a Justice of the Peace in BC who can notarize your documents. Only Notaries Public and Lawyers in BC are allowed to certify documents, and undertake various notarial acts.
Thursday, July 17, 2014
Google/Search Engine Notary?
Why do you not recommend Googling (or
use of search engine) for legal information?
You and I
both engage on searching for information online on a daily basis. Google (or
any other search engine) is not a bad place to start – to get some ideas, to
find authoritative sources, and for generic reading purposes. However, search
engines do not provide you with legal advice. Indeed, there are numerous
studies published in academic journals that assessed the misinformation out on
the internet to be a serious problem.
Without
going into the depth of constitutional law matters – simply stated, the work of
notaries are generally in the sphere of provincial laws. For example, land
title and transfers, Wills, powers of attorney are all matters that are
controlled by the provincial government.
You may
search for some information online, with respect to Wills. However, you may end
up with information that is from another province, state or even country. For
example, if you search “witnessing wills”, your information could come from
Toronto, Australia, United Kingdom or New Zealand. If you follow those advices,
you may very well end up with a defective will.
Alternatively,
you may get outdated information. In British Columbia, the Wills, Estate and Succession Act came into force on March 31, 2014.
Even if you search specifically for information related to British Columbia,
you could end up with information on the previous legislation that has since been
repealed (i.e. Wills Act).
If you have
a serious medical issue, you wouldn’t rely on the internet to diagnose you. So
I ask you – why would you rely on the internet to solve your legal issues?
There are
some reputable websites, referral sources, etc on my resource page. Again, the
resources out there are not meant to replace independent legal advice.
Wednesday, July 16, 2014
The urban myth
We charge an exorbitant amount of money just to
put our seal and signature on your document
I hear this
quite frequently, so let me explain.
First, just
like any business or services (whether it is food, apparel or healthcare), we
have to ensure we earn enough from each transaction to cover our costs. Simply
put, it costs over $30,000 from the beginning of the application process all
the way to the point we get our commissions. We are also required to pay annual
membership and insurance fees, as well as overhead costs such as lease, staffing,
accounting services, continuing legal education, taxes, equipment, utilities, etc. Of course, we
have bills to pay - just like you, our client.
Second, as
you would with any purchase decisions, you are welcome to get quotes from other
notaries or lawyers for the service you required. We try to price
competitively, but of course, it would be up to you, the consumer, to decide who
you choose to use.
Third, and
most important of all, we are not merely seeing you sign a document, and applying
our seals. In the event anyone question the authenticity of the document, or
question whether you had the mental capacity to sign the document, we are
called to task to courts, or other government agencies to justify our actions. You
might believe you are signing a “simple” document, but as legal professionals,
we look at the document to ensure there are no serious deficiencies in drafting, the
document is reasonably appropriate for the result you wanted to achieve, and most
importantly, you understand what you are signing. If you present us a document that is poorly drafted (i.e. Do-It-Yourself kits or online templates that are not appropriate), we simply will not notarize the document.
Imagine
this: You signed a particular document in front of me, for which its
authenticity is later questioned. You have died in the interim – who would be
called to court to testify the document was signed properly? I do. As required
by the rules of my regulator, I am required to keep copies of the signed
document for a length of time (from 2 years, up to 10 years after your death,
depending on the nature of the document). [1]
As such, there are costs involved – storing/retrieving the documents, time away
from my office, and the preparation needed before attending the inquires.
In summary,
my professional dues, overhead costs and liabilities contribute to my pricing
structure. You, as the consumer, are free to decide whether my service fits
your needs.
[1] Rule 17 of the Society of Notaries Public of
British Columbia
Tuesday, July 15, 2014
The mighty notarial seal?
I want you to put your seal on this
document – why wouldn’t you?
First, was
notarization required in the first place? If the document you had in hand did
not specify the need for notarization, it probably does not need to be sealed. You
are more than welcome to consult with your notary/lawyer, but do read below.
There is a
general misconception that the public have with respect to notarial seals. Our
notarial seals do not have magic powers, and having our seal on the document
will not make the document somehow more powerful. Notaries are trained to determine when the application of the seal is required. If you bring us a legally
defective document (i.e. affidavits that lack the proper wordings, or
formatting), we will not swear the document, nor seal the document.
If you will
indulge me, our notarial seals are like firearms to a law enforcement officers,
or prescription pads for healthcare professionals. Before we use our seals (or
firearms/prescription pads per the above analogy), we exercise our professional
judgement as to whether the document is suitably drafted. Just like law
enforcement officers and healthcare professionals who are called to court, or
their regulatory bodies for inquiries as to why they choose to use their tools
of trade, we are also subject to the same scrutiny. If we do not believe the
document should be notarized, it is because we arrived at that conclusion based
on our professional judgement.I have listed a few reasons below (by no means exhaustive):
·
You
didn’t have the proper identifications (at least two pieces of
identification, one must be a valid government-issued identification) for us to ensure you are who you say you are. [1]
·
If
you brought us a document in a language that we don’t understand – we will most
likely refer you to a notary or lawyer that can understand that language
·
You
don’t understand what it is you brought to us, or do not understand the
consequences of signing the document. [2]
· Your document is legally ineffective. This could be due to improper drafting, incorrect use of legal languages, or simply because the document you had in mind is not something that can be properly made into the form you wanted.
· You
did not appear in person to meet with us. We cannot notarize documents over the
phone, fax or email.
·
You
are a Freeman-of-the-Land (FOTL), or formally known as the Organized Pseudolegal Commercial Argument Litigant (OPCAL), and you brought us demands,
protests or other legally ineffective documents for us to notarize.[3] Both the Law Society of BC and the Society of
Notaries Public of BC have warned their members not to notarize such documents,
or face disciplinary actions that could lead to losing our license to practise
law. [4]
As notaries, we cannot help to make your tax or criminal problems go away, nor can we help you sue
or defend you in court. If you have such a need, you should consult with a
lawyer about the proper course of action.
· You
refuse to swear an oath or affirm the declaration, when it is required for the
purposes of the document.
· We
have reasons to believe you intend to perjure yourself in an affidavit or
statutory declaration. Perjury is a Criminal Code of Canada offence, and carries a maximum penalty of 14 years in penitentiary.
·
We
have reasons to believe the document is being used for improper or illegal
purposes.[5]
·
We
have reasons to doubt whether you are signing the document willingly, without
being coerced or induced into signing before us. [6]
· The
document is beyond our competence as notaries.[8]
Criminal or family matters must be dealt with by lawyers.
·
Other
matters that our professional judgement have determined not to notarize the
document.
[1] Principles
for Ethical & Professional Conduct (3G-1), Society of Notaries Public
of British Columbia
[2] Principles
for Ethical & Professional Conduct (4G-3) , Society of Notaries Public
of British Columbia
[3] Principles
for Ethical & Professional Conduct (2G-2) , Society of Notaries Public
of British Columbia
[4] The Freeman-on-the-Land movement. (2012, January). Practice Tips. Retrieved July 15, 2014, from http://www.lawsociety.bc.ca/page.cfm?cid=2627
[5] Principles
for Ethical & Professional Conduct (2G-1) , Society of Notaries Public
of British Columbia
[8] Principles
for Ethical & Professional Conduct (4-G2.1) , Society of Notaries
Public of British Columbia
Monday, July 14, 2014
Paralegals vs. Commissioners for taking Affidavits
Paralegals
assist lawyers in drafting documents, providing substantive law and research assistance
and assemble documents and witnesses for court trials. [1] While paralegals are educated in certain procedural and substantive law areas, and play an important role in assisting lawyers in their course of business, paralegals are not regulated in British Columbia. Unlike paralegals in Ontario who are licensed by the Law Society of Upper Canada, paralegals in BC are not required to register with any regulatory body and thus, cannot act
independently from a supervising lawyer. [2]
The Law Society of British Columbia allows each lawyer to designate up to two
paralegals as “designated paralegal”, on a trial basis until 2015. [3]
These “designated paralegals” can make limited appearance in courtroom if the supervising
lawyer files an affidavit to support the paralegal to appear on his/her behalf.
They may also give legal advice to clients, again, subject to the supervising
lawyer’s approval. [4]
A Commissioner of taking affidavits (known as Commissioner of oaths in other jurisdictions) is empowered by law to administer oaths. Judges, lawyers, notaries public automatically become Commissioners for taking affidavits for British Columbia when they assume office. [5] Other officials such as police officers are also commissioner for taking affidavits, but they are only allowed to use that status for official police purposes. As such, you cannot ask a police officer to witness your documents. [6] Similarly, you cannot take a document to the court registry or courthouse for swearing, if the document is not for a matter before the courts. [7] Certain individuals, who for employment or volunteer-related business, requires them to administer oath or witness signatures can apply to the Ministry of Justice to be appointed as a Commissioner for taking affidavits. However, these appointments are limited in duration, scope and their activities are restricted only to the work or volunteer organization’s needs. [8]
Neither a paralegal nor commissioner can undertake notarial acts. They cannot sign documents for use outside of the province, nor can they provide certified true copies or other restricted legal work by notaries or lawyers.
[1] 4211 Paralegal and related occupations. (2014, July 14). Quick Search. Retrieved July 14, 2014, from http://www5.hrsdc.gc.ca/noc/english/noc/2011/quicksearch.aspx?val65=4211
[2]
Chapter 12, Professional Conduct Handbook (Law Society of British Columbia)
[3] Law
Society Rules (Rule 2-9.2)
[4] Paralegals. (n.d.). Paralegals. Retrieved July 14, 2014, from http://www.lawsociety.bc.ca/page.cfm?cid=2582
[5]
S.60 Evidence Act, RSBC 1996,
c124
[6] Commissioner for Taking Oaths and Affidavits. (2009, May 11). Retrieved July 14, 2014, from http://www.transitpolice.bc.ca/~/media/transit%20police/operational%20policies/ob340%20%20commissioner%20for%20taking%20oaths%20and%20affidavits%20tp090511.ashx
[7] Commissioners for Taking Affidavits. (2012, November 15). . Retrieved July 14, 2014, from http://www.courthouselibrary.ca/ItemDetails.aspx?Source=Asked+%26+Answered&ID=4951c8ec-fe53-607b-975f-ff0000fad974
[8] Applying for an Appointment as a Commissioner for Taking Affidavits. (n.d.). Applying as a Commissioner for Taking Affidavits. Retrieved July 14, 2014, from http://www.ag.gov.bc.ca/commissioners/applying.htm
[9] Paralegals. (2012, December 12). Retrieved July 14, 2014, from http://www.welcomebc.ca/welcome_bc/media/Media-Gallery/docs/occupationalguides/paralegal.pdf
[10] Education & Scholarship. (n.d.). BCPA. Retrieved July 14, 2014, from http://www.bcparalegalassociation.com/education.html
[11]
S.15(4) Legal Profession Act, SBC
1998, c9
[12]
S.48(2) Notaries Act, RSBC 1996, c334
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