The Hearsay Rule
in Quebec Law of Evidence in Civil Matters
Hon. G. R. W. Owen *
The Hearsay Rule is stated in Phipson, Law of Evidence,’ to be
Oral or written statements made by persons not called as witnesses are
not receivable to prove the TRUTH of the facts stated except…
A comparatively recent judgment 2 has raised the question as to
whether the rule of evidence excluding hearsay should be applied in
civil matters in the Province of Quebec.
In Marchand v. Begnoche an action in damages was taken by the
widow of the victim of an automobile accident against the heirs of
the owner of the automobile in which the plaintiff’s husband and
the defendants’ “auteur” were the only occupants. The owner of the
automobile died immediately at the scene of the accident. The plain-
tiff’s husband lived for two or three days after the accident. There
was no other witness of the accident. The widow alleged that the
owner of the automobile was driving at the time of the accident.
During the “enquite” the widow’s attorney attempted to question
a doctor with respect to statements, concerning the circumstances
of the accident, made to the doctor by the plaintiff’s husband at the
hospital, shortly after the accident and shortly before his death.
The plaintiff’s lawyer particularly wished to make proof of state-
ments by the deceased as to who was driving the automobile. The
defendants’ attorney vigorously opposed this evidence on the ground
that it was hearsay. The doctor would be testifying as to statements
which he heard the deceased make, while the deceased was not under
oath and was not subject to cross-examination, with the object of
proving the truth of such statements.
The arguments of the plaintiff’s lawyer in support of the con-
tention that this evidence was admissible are summarized in the
report of the case as follows :3
Of the Quebec Court of Appeal.
1 0th ed. (1963) para. 631.
2 Marchand v. Begnoche [1964] C.S. 369.
3 Ibid., at pp. 370-371.
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THE HEARSAY RULE IN QUEBEC LAW
355
Dans des notes savantes et fort habiles soumises par l’avocat de la
demanderesse, celui-ci sugg~re l’admissibilit6 de la preuve par oul-dire dans
un cas comme celui-ci, alors que la preuve directe par t6moins visuels de
l’accident qui constituerait Ia meilleure preuve ne peut 6tre faite.
L’argument de l’avocat de la demanderesse est en substance le suivant:
(a) L’article 1204 C.C. qui d6fend une preuve secondaire ou inf6rieure
la permet cependant s’il apparalt que la preuve originaire ou la meilleure
preuve ne peut 6tre fournie;
(b) II n’y a pas de dispositions correspondantes dans le Code civil
frangais dont on puisse affirmer que notre article a
t6 tir6;
(c) Cette disposition particuli~re de notre article 1204 C.C. a des affinit~s
avec la best evidence rule du droit anglais, mais non avec la hearsay rule
du m6me droit, ce qui a permis h certains juristes qu6becois d’exprimer
l’opinion que l’inspiration de notre article 1204 C.C. est anglaise;
(d) II s’agit done surtout d’une r~gle de preuve particulikre A la loi
de la Province de Qu6bec qui, tout en se rapprochant de la r~gle de preuve
anglaise connue comme the best evidence rule, est, cependant, propre h
notre droit;
(e) Aucun texte de notre droit ne prohibe, en termes expr~s, la preuve
par oul-dire.
L’avocat de la demanderesse s’appuie sur certains commentaires de
Phipson,4 Baker 5 et, tout particulirement sur les commentaires de ce
dernier dans lesquels l’auteur affirme que notre article 1204 C.C. ne repro-
duit pas la hearsay rule, laquelle est, prdtend-il, h cause de son inflexibilitY,
une source d’injustice; l’auteur sugg~re qu’elle devrait &ire soit chang~e, soit
abolie.
L’avocat s’appuie aussi sur un passage de Langelier 6 dans
lequel
cet auteur canadien a) rappelle que la r~gle qui exclut le oui-dire n’existe
pas en France et qu’elle n’est pas admise en Ecosse lorsqu’il s’agit de rap-
porter les declarations d’une personne qui pourrait 6tre t6moin si elle 6tait
vivante, et b) sugg~re que nous devrions, comme en Ecosse et en France,
admettre ce genre de preuve, du moins chaque fois qu’il serait impossible
de faire entendre le t~moin dont on veut rapporter les d6clarations.
Basing himself on the text of the chapter in our Civil Code dealing
with Proof (Arts. 1203 – 1245 C.C. and particularly Art. 1204 C.C.)
Plaintiff’s attorney contended that while the Best Evidence Rule ‘is
part of our law of evidence in civil matters the Rule excluding
Hearsay is not.
The trial judge in maintaining the objection and refusing to admit
the doctor’s evidence gave the following reasons :7
Les propositions de l’avocat de la demanderesse seraient certes d6fendables
si notre article 1204 C.C. 6tait le seul sur lequel nous devrions nous appuyer;
la demanderesse, des articles du Code
il existe, malheureusement pour
4 On Evidence, 10th ed. (1963), pp. 627 et seq.
G The Hearsay Rule, (1950), pp. 7 et seq., 15, 166 et seq.
6 De la preuve (1894), n. 251, p. 105.
7 Marchand v. Begnoche [1964] C.S. 369 at p. 371.
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de proc6dure civile, notamment, les articles 314 et 321 et, plus pr~cis~ment,
cet article 343 C.P. qui ne peuvent permettre A un tribunal d’accueillir une
preuve par oul-dire. Il peut y avoir un conflit apparent entre les disposi-
tions de l’article 1204 C.C. et celles des articles du Code de procedure civile;
ce conflit semble avoir 6t6 r~solu jusqu’h date de fagon pr~pond~rante en
faveur des dispositions de notre Code de procedure civile. Aussi longtemps
qu’un nouveau texte de loi ne sera pas promulgu6, il n’est pas possible h un
juge de sortir des sentiers battus de la jurisprudence.
Certes, la tache du juge serait simplifi6e s’il lui 6tait loisible de recevoir
en preuve les d6clarations faites par le t~moin d’un fait, avant son d~c~s,
dans les cas oti non seulement une meilleure preuve mais aucune autre
preuve de ce fait n’existerait, mais la r6ception de ce genre de preuve
par oui-dire pourrait 6tre une source de grave injustice; en effet, de telles
d~clarations m6me faites volontairement, librement, et en toute connaissance
de cause par un t~moin, depuis lors d6c~d6, peuvent avoir 4t6 volontairement
fausses pour avoir
t6 inspir6es A celui qui les a faites soit par son propre
int6r6t, soit par celui de ses d6pendants; pour accueillir comme vraies des
dclarations faites par le temoin de certains faits A une autre personne qui
les rapporteraient, le juge devrait forc~ment s’en remettre exclusivement
hl’opinion que se serait faite cette autre personne quant A la v~racit6 du
d6clarant et quant h la v6rit6 de ses affirmations; cette seule constation
suffit, semble-t-il, pour rendre inadmissible une telle preuve par ouY-dire
en l’absence d’un texte formel la permettant.
This decision apparently concedes that the Rule excluding Hearsay
is not to be found in Art. 1204 C.C. However it seems to find that
the rule is part of our law of evidence in civil matters in virtue of
the provisions of Art. 343 of the old Code of Civil Procedure which
provided:
343. A deposition given at a former trial of the same action or of another
action founded in whole or in part upon the same cause of action, may
be given in evidence, if it is established that the witness who made it is
dead, or is so ill as to be unable to travel, or is absent from the Province,
and that the opposite party had a full chance to cross-examine the witness.
In the new Code of Civil Procedure Art. 320 is to the same effect.
The reasoning appears to be that if a deposition given at a former
trial (which would be given under oath) cannot be received, even
though the witness cannot be produced, unless the opposite party
had a full chance to cross-examine, then there must be a general
rule excluding proof of statements made by a person not called as
a witness unless such statement was given under oath and was
subject to cross-examination by the opposite party. If such an infer-
ence from the Code of Civil Procedure is in conflict with the sub-
stantive dispositions of the Civil Code, then the dispositions of the
Code of Civil Procedure should, according to this decision, prevail.
I believe that the object of rules of evidence is to assist the courts
in the search for truth. If the evidence of the doctor had been admitted
in the Marchand v. Begnoche case this search might have been aided.
No. 3]
THE HEARSAY’RULE IN QUEBEC LAW
357
It could have helped ‘the Court, in considering the question at to, who
was driving, to know what statements were made by the deceased
to the doctor and at what time and under what circumstances these
statements were made. The problem as to what weight should be
attached to these statements is distinct from the problem as to their
admissibility.8
In connection with this case it is interesting to note that in. Roy
v. Levasseur, the Court of Appeal, in a case where there was no
direct proof as to which of the two occupants of an automobile was
driving, held that the evidenc gave rise to a presumption’of fact
that the owner of the car had been driving.
The Marchand v. Begnoche case indicates that there may be some
doubt as to whether the Hearsay Rule applies in civil matters in
the Province of Quebee and also that if it does apply there is difficulty
in putting one’s finger on the text which justifies the application
of this rule of evidence in civil matters in this Province.
Our Civil Code sets
t the Best Evidence Rule.
‘Art. 1204. The proof produced must be the best of which the case in
its nature is susceptible.
, Secondary or inferior proof cannot be received unless it is first shown
that the best or primary proof cannot be produced.
This Rule was taken by our codifiers from the-English common
law in 1866. This article has no counterpart in the Code Napoleon.
The codifiers indicate Greenleaf as the source and make no comment
on the rule. It is obviously of English origin. Greenleaf (whose work
was first published in 1842) expresses the rule as requiring “the-best
evidence of which the case in its nature is susceptible”. Since that
time ,the Best Evidence Rule has fallen into disrepute and disuse in
England. Phipson states: 10
133. The maxim that “The best evidence must be given of which the
nature of the case permits”, has often been regarded as-expressing the
great fundamental principle upon which the law of evidence depends.
Although, however, it played a conspicuous’ part in the early history of
the subject, the maxim, at, ithe present day affords but little practical
guidance.
136. In the present day, then, it is not true that the best evidence must,
or even may, always be given, though its non-production may be mattpr
for comment or affect the weight of that which is produced.
C.f.,Soiuthern Canadae Power v; ‘Conserverie de Napierville (a judgi-e’nt of
the Quiebec Court of Appeal rendered the 6th of March 1967, No. 8337*Mofitreal,
not reported at this time), which has been appealed to the Supreme Court of
Caniada.
9 [1964J B.R. 629.
10 On Evidence, 10th ed. (1963).
–
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In 1866 it was fairly generally accepted that the Best Evidence
Rule included the Hearsay Rule. 1
134.
… Great prominence was given to the doctrine by the publication
of Chief Baron Gilbert’s work on Evidence in 1756, the following statement
and comment from which have been adopted, almost without question, by
text-writers down to the present day: ‘The first and most signal rule in
relation to evidence is this, that a man must have the utmost evidence that
the nature of the fact is capable of… The true meaning of which is that
no such evidence shall be brought which ex natura rei supposes still a greater
evidence behind in the party’s own possession or power’ (1st ed., p. 4). By
evidence which supposed a greater behind, Gilbert apparently referred to
the three great classes of ‘substitutionary evidence’, i.e. hearsay, secondary
evidence, and proof of attested documents otherwise than by the attesting
witnesses.
Baker states :12
When textbooks on evidence first began to appear as reasoned treatises
during the middle years of the nineteenth century, an attempt was made
to rationalize the Hearsay rule as being part of the Best Evidence rule,
which required the best evidence that the nature of the case would afford;
if the best evidence could not possibly be produced the next best was admitted.
Stephen, Powell, Best, and Taylor all connected the Hearsay rule with the
Best Evidence rule.
On the basis of the thinking of that day a strong argument could
be made that by Art. 1204 C.C. our codifiers incorporated in our
law of evidence in civil matters two English common law rules, the
Best Evidence Rule and the Hearsay Rule. However today the gener-
ally accepted view is that the Best Evidence Rule and the Hearsay
Rule are autonomous rules with distinct origins.
In some instances the two rules produce contradictory results.
Under the Best Evidence Rule if the primary evidence cannot be
produced the secondary evidence can be received. Under the Hearsay
Rule even though the primary evidence cannot be produced the second-
ary evidence cannot be received unless the case falls within one of
the recognized exceptions to the Hearsay Rule.
On the basis of the thinking of today the proposition can be
advanced that in Quebec we have Art. 1204 C.C. which sets out the
Best Evidence Rule, that the Hearsay Rule is not part of the Best
Evidence Rule, and that Art. 1024 C.C. does not justify the application
of the English Common law Hearsay Rule with its exceptions in civil
matters in the Province of Quebec.
Certain articles of our Code of Civil Procedure have been invoked
as a basis for excluding hearsay evidence. Reference has been made
– Ibid., No. 134.
12 The Hearsay Rule (1950), p. 15.
No. 3]
THE HEARSAY RULE IN QUEBEC LAW
359
to the reasoning in the Superior Court judgment in MarchLnd v.
Begnoche which rejected hearsay evidence mainly by reason of the
provisions of Art. 343 of the former Code of Civil Procedure.
Neither the Civil Code nor the Code of Civil Procedure contain
a clear statement as to whether or not there is a general rule ex-
cluding hearsay evidence in civil matters in Quebec or as to the
exceptions to that rule if it does exist.
With respect to what may be called “written hearsay” we have
the provisions of articles 1207 ‘et seq. C.C.
With respect to statements (oral and written) made by persons
who are not parties to the action and who are not called as witnesses,
our courts have ruled on the admissibility of such statements to prove
the truth of the matters stated. Some of these decisions may be
referred to by way of examples.
In the case of C.P.R. v. Quinn,13 the question arose as to the ad-
missibility of a hospital chart with entries on it by nurses, one of
whom was not available as a witness at the trial. The Superior Court
held that the chart could not be admitted as evidence. Cross J. of
the Court of Appeal, after citing American authority (p. 430), stated
that in his opinion the entries should be admitted, not only in the
case where the person who made them is dead, but likewise if the
person is alive but not available as a witness. However on the ground
that “the existence of the conditions requisite to render the entries
admissible as evidence, such as the fact of the entries having been
made immediately upon the occurrence of the facts recorded, was not
so definitely established as to enable us to say that the chart ought
to have been admitted as evidence”, Cross J. agreed that the chart
had been properly excluded.
In the case of Bean v. Asbestos,’4 the problem arose as to whether
statements, made by the victim, at the time of an accident, to his
foreman, as to the manner in which the accident occurred, could, in
an action taken by the victim’s widow, be proved by a person who
heard the statements made. The Superior Court, Pouliot J., recog-
nized the rule excluding hearsay evidence but admitted proof of the
statements in question, after citing English authors and Langeler,
apparently as being original evidence, acts forming part of the res
gestae, and not hearsay evidence.
In a somewhat similar case in the Superior Court, Little V. London
& Lanes. Guarantee & Accident,15 E. M. McDougall J., allowed evi-
13 (1913) 22 B.R. 428.
14 (1915) 21 R.L. n.s. 378.
15 (1940) 7 I.L.R. 281.
McGILL LAW JOURNAL
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denc6 to be made’of a statement made by a deceased person at, the
time of an accident as to what happened on the ground that the
statement was part of the res gestae. The Court agreed with the
decision in Bean V. Asbestos.
From the cases considered above it will be seen that our Courts
have both allowed and disallowed statements made by persons who
are not parties and who are not called as witnesses, which are offered
as proof of the truth .of the matters stated. The grounds for the
judgments have varied – Art. 343 C.P., the Best Evidence Rule, the
Hoarsay.Rule, and that such statements form part of the res gestae.
-Quebec authors on numerous occasions have stated that the Hear-
say’Rule forms part of our law of evidence in civil matters. However
there is considerable variation when they refer to the text which
they claim embodies or constitutes the basis of this rule.
Liangelier after citing Art. 1204 C.C. states that this rule was
borrowed from the English law, there being no similar provisions in
French law ancient or modern.1 6 Langelier expresses the opinion that
it is by reason of the Best Evidence Rule (1204 C.C.) that hearsay
evidence is excluded. 17
C’est parce qu’il faut toujours produire la meilleure preuve possible,
qu’en general la preuve par ouY-dire n’est pas admise.
Langelier writes that Art. 1204 C.C. not only introduced the
English Hearsay Rule but also the English exceptions to that rule.1 8
The late Chief Justice Tyndale in his paper published in the
“Livre-Souvenir des Journes du Droit Civil Frangais”, 1934, under
the heading – “Two Rules of the Quebec Law adopted from England”
writes ‘9 “The Best Evidence Rule and the rule. excluding’ Hearsay
Evidence are, admittedly, of English origin.” His opening comment
with respect to the rule excluding hearsay evidence is 2o
.,No specific text of our Code refers to hearsay evidence as such, but the
rule is universally accepted and applied in this Province, presumably as a
specific instance of the Best Evidence Rule…
The Chief Justice, however, is not completely satisfied with this
suggestion that Art. 1204 C.C. introduced The Hearsay Rule into our
law as ‘part of the Best Evidence Rule as may be seen from his
Icomm6nt :21
16 De la preuve (1894), n. 234, p. 99..
1 Ibid., No. 250, p.’105.
‘ tIbid:TNo. 315, p.’ 135.
19 At p. 349.
20 Ibid., at p. 350.
21 Ibid., at p. 351.
No. 3]
THE HEARSAY-RULE IN QUEBEC LAW
361
is
There is, -however, an apparent logical inconsistency in connection with
hearsay evidence as a specific application of the Best Evidence Rule. Under
the wording of the second paragraph of 1204 C.C., it would seem reasonable
to admit hearsay in any case where it is established that the person who
made the statement cannot be produced as a witness. But this is not the
law. Hearsay evidence
inadmissible, save in those exceptional cases
specifically laid down. The only explanation which appears to have been
offered of this inconsistency is that hearsay evidence is excluded not merely
because it is not the primary evidence but also because the statement was
(usually) not made under oath and because the person who made itwas
not (usually) subjected to cross-examination. These considerations are set
aside in
the exceptional instances referred to because the circumstances
were such that in all probability the statement was true.
‘Fernand Choquette (now a judge in the Quebec Court of Appeal)
in an address to the Junior Bar 22 on the subject of “La Preuve par
0fi-dire” stated that the Hearsay Rule is part of the Quebec civil
law of evidence in virtue of the Best Evidence Rule (1204 C.C.). He
cites Langelier and Tyndale.
Walter S. Johnson in “Sources of Quebec LdW of Evidence”
writes 2
We regard the best evidence rule as necessarily excluding hearsay.
Ducharme 24 ‘writes that he sees no objection to the explanation
that the Hearsay Rule was introduced into our law of proof ;etc(. by
Art. 1204 C.C.25
Ducharme also refers to Art. 340 C.P. (1897) as a text or basis
jhstifying the application of the Hearsay Rule in Quebec. 26
In the new Code of Civil Procedure, which came into force in the
Province of Quebec on the 1st September1966, the former Article
340 has been replaced by Art. 314 reading:
314. When a party ltas ceased- examining a witness he has produced,
any other party. with opposing interests may cross-examine such -witness
on all the facts in issue and- may also establish in any manner whatever
grounds he may have for objecting to such witness.
Commenting on this change the commissioners in their report
state:
Article 314:
” Unlike Article- 340 C.C.P. which limits cross-examination to the facts
raised in’examination in chief, the suggested text permits cross-examination
on all the facts in the case. The Commissioners are of opinion that the search
for the truth, which is the sole object of the trial, should not be handicapped
22 (1935) 14 Rev. du Dr. 65.
23 [1953] Can. Bar Rev. 1000 at p. 1017.
2 4 Nadeau & Ducharme, La Preuve (1965), p. 128.
25 C.f., p. 106.
26 Ibid., p. 139.
McGILL LAW JOURNAL
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by a rule which has no justification and which never existed in Canada
outside the Province of Quebec. It is well known that this rule was taken
from the United States, where it is no longer in force in a large number
of States (See the article by Watt [1960] R.L., p. 123).
This modification of the article in the Code of Civil Procedure does
not add any weight to the proposition that it is the basis of the
Hearsay Rule in Quebec.
From an examination of our Codes, decided cases, and authors,
it appears that there is no specific text setting out a rule excluding
hearsay evidence in civil matters in the Province of Quebec.
Furthermore this is hardly a case where it can be said that even
though we may have no specific text enunciating the principle never-
theless the rule excluding hearsay evidence is of such universal ap-
plication and is so obviously essential to the proper administration
of justice that in any event our courts should apply it.
Broadly speaking there is no general rule excluding hearsay
evidence in Europe.
Langelier writes: 27
La r~gle qui exclut le oul-dire n’existe pas en France, et n’est pas admise
en Ecosse lorsqu’il s’agit de rapporter les d6clarations d’une personne qui
pourrait 6tre t6moin si elle 6tait vivante.
Lord Maughan in “Observations on the Law of Evidence”, states :28
I will begin with some remarks on the important subject of hearsay.
Our general rule, as you well know, is that oral or written statements by
persons not called as witnesses are not admissible as evidence of the truth
of the matters stated. This rule is peculiar to our law and does not obtain
on the continent of Europe.
Baker states: 29
In that oft-referred-to case, the Berkeley Peerage Case, Lord Mansfield
pointed out that the English rule excluding hearsay is one peculiar to
English law, at the same time demonstrating the reason why the law in
Scotland and on the Continent was different.
In jurisdictions where it has been applied there have been forceful
criticisms of the hearsay rule.
(a) Lord Maughan.
It must be admitted that this rule of exclusion often rules out statements
of great probative value. For example, a parol statement by a person with
no motive to misrepresent the fact is a thing we all act upon without
hesitation in the ordinary affairs of life. If a man says that he called at
B’s house and was told that B was away in the country, we all credit the
statement that B was away in the absence of any ground for doubting it.
27De la preuve (1894), n. 251, p. 105.
28 (1939) 17 Can. Bar Rev. at p. 473.
29 The Hearsay Rule (1950) at p. 167.
No. 3]
THE HEARSAY RULE IN QUEBEC LAW
363
If a man tells you that he is fifty years of age, we believe him none the
less that his knowledge of his age will generally depend on the statements
of his parents, or others who may have known the approximate time of his
birth. If the question is whether A ordered certain goods from B, a state-
ment that a man came with a cart with A’s name painted on it and said
that A, who was his master, has told him to fetch away the goods is surely
some proof that A ordered the goods. On an issue whether an attested deed
is forged, some weight would be attached by sensible persons to the fact
that the attesting witness (now deceased) admitted that the deed was forged.
Yet in all these cases, and a hundred other instances could be given, the
evidence
is wholly excluded as being hearsay. One cannot therefore be
altogether surprised that the rule has not been universally adopted in all
civilized countries.30
I came to the conclusion many years ago that the law of evidence on these
subjects required amendment, and I also found that the exceptions I have
mentioned had grown up in the most haphazard fashion, and they seemed to
me to be based on principles which had little regard for the true probative
value of the evidence in question.3 1
(b) S.J. Helman.
Every practitioner is only too familiar with those unhappy cases where
the victim of an accident dies after having made a statement which, under
the present state of the authorities, is not admissible because it was made
after the accident took place. If the deceased, as often happens, is the only
person present when the accident occurred and was therefore the only
person who could tell how the accident happened, the representatives of the
deceased are deprived of their just claims. Not many of these cases are
to be found in the reports because when such a case arises the legal adviser
of the claimant must reluctantly tell his client that the proposed litigation
will not be successful and so the claimant must either abandon his claim
or take such settlement as a generous opponent may see fit to grant him.
Justice demands that such statements should be admitted. 32
In Scotland the general rule has been that an oral statement by a deceased
person is admissible in evidence, and no inconvenience has followed from
the adoption of this practice.
That the law in England is deficient in this regard and should be amended
has also long been recognized.
Indeed, Chief Justice Cockburn in the
Bedingfield Case expressed regret that “according to the law in England
any statement made by the deceased should not be admissible”, and in
Sugden v. Lord St. Leonards, Lord Justice Mellish stated: “If I was asked
what I think it would be desirable should be evidence, I have not the least
hesitation in saying that I think it would be a highly desirable improvement
in the law if the rule was that all statements made by the persons who are
dead respecting matters of which they had personal knowledge and made
ante litem motam, should be admissible. There is no doubt that by rejecting
such evidence we do reject a most valuable source of evidence.” And in the
30 “Observations on the law of Evidence”, (1939) 17 Can. Bar Rev. 469 at p. 474.
31 Ibid., p. 479.
32 “The Reform of the Law of Hearsay” (1939) 17 Can. Bar Rev. 302.
364
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same case, Jessel, M.R. said: “Now, it might well have been that our law,
like the law of some other countries, should have admitted as evidence the
declarations of persons who are dead in all cases where they were made
under circumstances in which such evidence ought properly to have been
admitted, that is, where the person-who made them had no interest to the
contrary, and where they were made before the commencement of the
litigation. That is not, however, our law. As a rule the declarations, whether
in writing or oral, made by the deceased persons, are not admissible in
evidence at all. But so inconvenient was the law upon this subject, so
frequently has it shut out the only obtainable evidence, so frequently would
it have caused a most crying and intolerable
large
number of exceptions have been made to the general rule.” 33
injustice, that a
(c) Baker.
During the course of the treatment of the exceptions to the Hearsay Rule
it became apparent’ on numerous occasions just how arbitrary, unreasonable
and unjustifiable are many of the limitations and conditions of admissibility,
how often valuable testimony is excluded and how sometimes injustice
is
caused by the inflexibility of the present law relating to hearsay.34
The origin of the Hearsay Rule was to protect the jury from
untrustworthy evidence. Today the standard of education and intel-
ligence of juries is much’higher than it was in the eighteenth century
When the rule appears to have been established in England. Today
‘the great majority of civil cases in Quebec are heard without a
jury, by a judge .who does not require the same protection against
-untrustworthy evidence that an eighteenth century jury did.
IRaker in the closing chapter of his work The Hearsay Rule
discusses the future of. the Hearsay Rule and foresees two possible
courses of development:
a) retention of the present rules with modifications
b) abolition of the present rules and .substitution of a new principle.
(a) Modification of the Present Rules
So long as all questions of fact were decided by the jury it was reasonable
to exclude much testimony that would otherwise have been admitted, but
in many present-day civil cases there is no jury and the judge decides
questions of fact. Further, the standard of education, general knowledge
and experience of jurors are now at a much higher level than at the time
when mainy of the existing rules were originated and developed. In view
of these two facts the following modifications to the present law are sug-
gested –
(1) An enlargement and liberation of the present exceptions along
the lines suggested during their individual treatment.
(2) The opening of the field for new exceptions. This would entail the
adoption of an approach such as that made by Jessel, M.R., in Svgden v.
33Ibid., pp. 304-5.
34 The Hearsay Rule (1950) p. 167.-
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THE HEARSAY RULE IN QUEBEC LAW
365
Lord St. Leonards and the rejection of that, made by Lord Blackburn in
Sturla V. Freccia,.
– (3) The, introduction of a general rule that all statements made by
persons of competent knowledge in good faith and before the beginning of
the suit, such persons being now deceased, are admissible. This would
follow the form of a Massachusetts Statute of 1898 and would have the
support of dicta of Jessel, M. R., and Mellish, ‘L. J., in Sugden v. -Lord
St. Leonard& and of Lord H ,erschell in WoOdward V. Goulstone.
(4) A general discretibn to be allowed to’ the judge to admit hearsay
testimony when it consists of casual details necessary for the complete
comprehension of a witness’s’ evidence.
(b) Abolition of the Present Rules’
In view of these two changes, considerable support is given to the
contention that the historical development of the Hearsay rule should be
reversed and the principle should be established that all relevant evidence
should be admissible unless some rule of policy excludes it. This, in effect,
would mean the abolition of the present rules and the substitution of an
approach similar to that laid down for Similar Facts evidence in R. V. Sims.
Instead of being bound by rigid technical rules the judge could then take
a broad liberal stand.
The Indian Evidence Act of 1872 adopted such an approach. Under Sect. 5
relevancy is made the test of admissibility whilst later sections set forth
affirmatively the canons for testing and determining what facts are relevant.
Such a change in the English rules could only be accomplished by statute,
for the body of law dealing with hearsay is too vast and complicated for a
completely new approach to be accomplished by the judiciary. With the in-
creasing tendency in civil cases to proceed to trial without a jury, the
reversal of the general principle has much to be said in its favour, but it
is felt that the strong practical, empirical attitude of English lawyers would
not allow such a radical step. Yet, it
is submitted, that should be the
ultimate aim; in the meantime such changes and improvements as are
suggested in the preceding pages should be capable of reasonably rapid
achievement.
Operating under a civil law system and being free from the
empirical attitude of English lawyers, it might be easier for us,
when revising the Civil Code, to take the radical step of setting
up the new principle that all relevant evidence should be admissible
unless some rule excludes it, if such a step is thought to be desirable.
In the preparation of the new Civil Code consideration might
be given to the problem as to whether we should have both a Best
Evidence Rule and a Rule Excluding Hearsay, or only one of these
rules, or neither of these rules. If we had neither of these rules
and only a Rule of Relevancy then all relevant evidence would be
admissible and the weight or probative force to be attributed to
such evidence would be left to the discretion of the Court.
If we decide to have a general rule excluding hearsay evidence
the next problem would be a statement of the exceptions which could
be done either –
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[Vol. 13
(a) by a statement of principle e.g. “where the circumstances were such
that in all probability the statement -was true” or
(b) by an enumeration of the exceptions along the lines set out in common
law text books and perhaps terminating with a general clause e.g. “and
in all other cases of like nature.”
Consideration might also be given to providing in the new Civil
Code that insofar as hearsay evidence is concerned the rule would
be the same for both civil and commercial matters.
There is some doubt as to whether we have a rule excluding
hearsay in civil matters and it is a good time to consider whether
we want one.
